Rectification

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Correction generally means both the process of correcting, improving or correcting as well as its result.

In printing works it occasionally appears as the heading on a special page where errors that could not be corrected in the proof are corrected. In German schools, "Correction" is the heading of addenda to written work in which the pupil corrects the spelling mistakes (e.g. a school essay ).

The law knows the correction of negotiation protocols , judicial decisions, administrative acts and laws . The correction only concerns obvious inaccuracies such as typing and calculation errors. The correction can be made on request or ex officio.

Demarcation

The correction is the one hand, delimit (of a new kind decision cassatory or Reformation decision) by filing an appeal , on the other hand, of substantive correction claims as the land register correction claim , the media law supplementary or rectification claim or the right to correct incorrect personal data according to Art. 16 of the privacy Basic regulation .

In the case of a voluntary disclosure, taxpayers can correct their own information in relation to a tax authority so as not to be punished for tax evasion ( Section 371 AO).

The correction of a misstatement, in certain statement offenses lead to reduced sentences or Abehen of punishment ( § 158 of the Criminal Code).

In German insolvency law, to correct in § 39 , § 209 InsO means to settle a liability .

Negotiation protocols

Civil proceedings

Inaccuracies in the minutes of the negotiation can be corrected at any time in civil proceedings ( Section 164 (1) ZPO). This applies accordingly to the protocol in labor or administrative court proceedings, as the respective procedural rules refer to the Code of Civil Procedure (ZPO) ( Section 46 (2) ArbGG, Section 173 VwGO).

The minutes are incorrect if the actual course of the negotiations is not reflected in the minutes. This can be the case if actual incidents were not logged or, contrary to Section 160 ZPO, formalities that were actually not observed were nevertheless logged. Since the 1970s, section 164 has regulated the amendment of the protocol, which had not been addressed in the law until then, based on the principles developed in this regard by the case law. The parties are to be heard before the correction (Section 162 (2) ZPO).

The logging and its correction are the sole responsibility of the court judge and the person who may be called in to take the minutes in their capacity as notary persons ( § 163 ZPO). The basis of every protocol correction is their reliable memory of the course of the negotiation. The correction is made by means of a note on the protocol ( Section 164 (3) and (4) ZPO).

The decision not to correct a protocol is not contestable. A possibility of contestation did not seem sensible to the legislature because the higher court, as it did not take part in the meeting, was not suitable for reviewing the minutes. The hearing prior to the decision on the correction means compensation for the parties in this respect.

Criminal proceedings

The correction of the minutes of the main hearing is not regulated by law, but is recognized by the highest court rulings.

meaning

The minutes of the negotiation must, in particular, show the main course and result of the negotiation, as well as the compliance with all essential formalities ( § 160 ZPO, § 273 StPO). Negotiation minutes have positive and negative evidential value with regard to the formalities relevant to the procedure, according to which those formalities that have been recorded are also to be regarded as actually complied with, but not formalities that the protocol does not contain ( § 165 ZPO, § 274 StPO).

If the formality that has not been recorded is a so-called absolute reason for an appeal , the auditor can claim that the procedural error in question has actually occurred by pointing out that it was not mentioned in the protocol. On the other hand, a mere complaint of the minutes with which only the incorrectness of the minutes of the meeting itself is asserted is not a reason for revision .

Court decisions

Civil proceedings

Correction of the judgment, § 319 ZPO

Spelling and arithmetic errors as well as similar obvious inaccuracies that occur in the judgment can be corrected at any time at the request of a party or ex officio. The decision is made by resolution which is noted on the corrected judgment. There is no legal remedy against the decision rejecting the request for correction; an immediate appeal is made against the decision making a correction ( § 319 ZPO).

Section 42 FamFG contains a corresponding provision for the correction of resolutions .

The purpose of this provision is to avoid falsification of the legal rulings through technical errors or obvious errors. Section 319 ZPO protects those seeking justice from the consequences of such errors, which are inevitable in everyday judicial practice, and is an expression of the principle of consideration for those seeking justice and their fair treatment, which permeates procedural law.

In addition to the wording of Section 64 (3a) ArbGG, a corresponding correction is therefore not ruled out not only upon application but also ex officio in accordance with Section 319 ZPO in the event that the state labor court wanted to allow the appeal already in the judgment and the corresponding correction The saying was left out by mistake. This interpretation of Section 64 (3a) ArbGG results from the constitutional requirement of fair procedural design contained in Article 20 (3) GG.

Correction of the facts, § 320 ZPO

According to the original conception of the civil process as a purely oral procedure, the oral presentation of a party could only be proven by reproducing the judgment. Since the abandonment of the prohibition of reference by the new version of Section 137 (3) sentence 1 ZPO, the preparatory briefs have also been available as evidence of the party’s submissions. Since then, the subject matter of the case has also emerged from the content of the court files.

According to the case law of the Federal Court of Justice , the offense has no longer had any negative evidential value. According to Section 314, Sentence 1 of the Code of Civil Procedure, the findings of the first-instance judgment develop positive conclusiveness with regard to all of the facts mentioned in the offense. The inaccuracy of the first-instance findings must therefore be asserted with the request to correct the facts in order to prevent these findings from becoming binding on the appellate court according to Section 529 (1) No. 1 ZPO.

The court decides on the application without taking evidence by means of an incontestable decision that is noted on the judgment ( Section 320 (4) ZPO).

Addition to the judgment, § 321 ZPO

If a main or ancillary claim or the cost item asserted by a party was negotiated orally before the final decision, also mentioned in the facts of the judgment, but inadvertently not tenored , the judgment must be supplemented by a subsequent decision upon request. In this respect, the judgment has not yet been effectively announced and the subject of the dispute has not yet been fully decided.

Section 43 FamFG contains a corresponding provision for supplementing resolutions.

The necessary addition to the judgment is made in accordance with § 321 ZPO. Upon the timely request of a party, the court will set a date for the oral hearing in which the passed claim is negotiated and this is decided (Section 321 (3) sentence 1 ZPO). With the summons to the hearing, the other party must be served with the brief containing the application (Section 321 (3) sentence 2 ZPO).

With the expiration of the two-week application period pursuant to § 321 para. 2 ZPO against it eliminates the pendency of the action in so far it has been the subject of the application overridden. It must therefore be made pending again, for example by a permissible extension of the complaint in the appellate instance .

If the court inadvertently did not include the bypassed application in the facts of its incomplete judgment, the facts of the case must be corrected in accordance with Section 320 of the German Code of Civil Procedure (ZPO) before the judgment is amended. However, a priority correction of the facts is not considered where the judgment according to § 313a , § 313b ZPO exceptionally do not contain any facts.

Criminal proceedings

The correction of judgments in criminal proceedings is not regulated by law. The Federal Court of Justice therefore only allows the subsequent correction of a written judgment in very exceptional cases in the event of an apparent mistake. It must be established beyond doubt that the correction does not conceal a subsequent factual change. It follows that a correction is permissible if it results from facts that are clear to all those involved in the proceedings and exclude any suspicion of a later factual change, i.e. where the oversight is obvious even without the correction.

Administrative file

An administrative act becomes effective with the content with which it is announced ( Section 43 (1) sentence 2 VwVfG).

Obvious inaccuracies in administrative files such as typing and calculation errors can be corrected ex officio at any time according to § 42 VwVfG, § 129 AO, § 38 SGB ​​X, because trust in their continued existence is not worthy of protection. Under certain conditions, the addressee is entitled to correction.

The correction is not bound by the strict conditions that apply to the revocation of lawful and the withdrawal of unlawful beneficial administrative acts. It only serves to clarify what is clearly intended from the start, i.e. it intervenes in the event of errors in the declaration of intent (discrepancy between will and declaration). In the absence of regulation, the correction itself is therefore not an administrative act and may have to be asserted by way of a general performance suit.

A correction of obvious inaccuracies is permissible regardless of whether the error is due to machine failure or human error. Inaccuracies are "evident" if the error results from the context of the administrative act or from the processes involved in its announcement. The inaccuracy must be imposed on everyone who is put in the position of those involved.

On the other hand, errors in the decision-making process such as the interpretation or (non-) application of a legal norm, an incorrect assessment of the facts, the incorrect assumption of facts that are not actually present or errors based on a lack of clarification or the non-compliance with established facts are not manifest inaccuracies . These make the administrative act unlawfully revocable.

Unlike the courts according to § 118 VwGO in the case of judgments, the administrative authority is not always obliged, but only entitled to correct obvious inaccuracies, unless there is a legitimate interest in the correction. Such a legitimate interest can exist in particular if the administrative act serves as the basis for further measures or for submission to other authorities for the person concerned.

Laws

The examination and correction of draft bills and laws in the case of printing errors and other obvious inaccuracies is regulated in § 61 GGO . Section 61 GGO applies accordingly to statutory ordinances (Section 62 Paragraph 2 GGO).

Correction is only permissible within very narrow limits because of the legislative bodies' right to respect and preservation of the competence to which they are alone to determine the content of laws. It is limited to obvious inaccuracies. Obvious inaccuracy can result not only from the standard text, but also, in particular, taking into account the context and materials of the law. It is decisive that the correction does not affect the legally significant content of the standard and with it its identity.

The lead federal ministry therefore remains responsible for the correction until the legislative process has been completed (Section 61 (1) GGO). After adoption, the consent of the Presidents of the German Bundestag and the Bundesrat must also be obtained (Section 61 (2) GGO). In the case of misprints and other obvious inaccuracies in the Federal Law Gazette, the correction requires a notification from the lead Federal Ministry in agreement with the Office of the Federal President and the Federal Chancellery and with the consent of the Bundestag and Bundesrat Presidents to the editorial office of the Federal Law Gazette (Section 61 (3) GGO).

If the announcement text or the new version of a law or regulation contains printing errors or other obvious inaccuracies, these should also be corrected.

literature

  • Walter Kratzert: Significance and correction of errors made in the editing and publication of imperial laws . At the same time: Breslau, Jur.Diss., 1913. - Berlin: Frensdorf, 1913. - V, 44 pp.
  • Günter: Stecher: Importance and correction of errors in the legislative process . Breslau, legal u. state science Diss., 1925. Breslau, 1925, 91 pp.
  • Hans-Günter Geisler: Misprints in the Reichsgesetzblatt, their legal meaning and their correction . Breslau, legal u. state science Diss - Görlitz, 1931. - 38 pp.
  • Hermann Schönfelder: The correction of the judgment in criminal proceedings . JR 1962, pp. 368-371

Web links

Wiktionary: Correction  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Correction, duden.de, accessed on May 10, 2019
  2. ↑ cf. Stein-Jonas, Commentary on the Code of Civil Procedure , 19th edition, § 159 Note III 3 with evidence
  3. ↑ BGHSt 51, 298, 314, 316
  4. ↑ LAG Baden -Wuerttemberg, decision of 11 December 2013 to 13 Ta 27/13
  5. ↑ application for rectification of the record - and the appeal against his rejection Rechtslupe.de, accessed on May 11, 2019
  6. ↑ Draft of a law to simplify and accelerate judicial procedures (simplification amendment) BT-Drs. 7/2729 of November 5, 1974, p. 63
  7. ↑ The announced judgment - and the evidential value of the protocol Rechtslupe.de, May 20, 2015
  8. ↑ Ingo E. Fromm: On the importance of the criminal-law meeting minutes in practice Neue Justiz 2015, pp. 96-101
  9. ↑ Meyer-Goßner, StPO , § 344 marginal no. 26th
  10. ↑ cf. e.g. BVerfG, judgment of January 15, 1992 - 1 BvR 1184/86
  11. ↑ BAG, judgment of March 22, 2018 - 8 AZR 779/16 para. 17th
  12. ↑ § 128 Paragraph 3 Clause 1 CPO 1877; Section 137 (3) sentence 1 CPO 1900
  13. ↑ RGBl. I 1924, 135
  14. ↑ BGH, judgment of March 12, 2004 - V ZR 257/03 marginal no. 26th
  15. ↑ Benedikt Windau: Classic liability trap: The forgotten application for correction of the facts on June 19, 2014
  16. ↑ Benedikt Windau: Supplementary judgment or amendment of the protocol? March 27, 2014
  17. ↑ BGH, judgment of September 24, 2013 - I ZR 133/12
  18. ↑ BGH, judgment of November 8, 1965 - VIII ZR 300/63, LM No. 54 to § 322 ZPO; Judgment of November 29, 1990 - I ZR 45/89, WM 1991, 559 = NJW 1991, 1683 under I 2 a; Judgment of January 10, 2002 - III ZR 62/01, WM 2002, 816 = NJW 2002, 1115 under II 1; MünchKommZPO / Musielak, No. 10; Zöller / Vollkommer, ZPO , 25th edition, § 321 marginal no. 8th; Baumbach / Lauterbach / Hartmann, ZPO , 63rd edition, § 321 marginal no. 6; Section 261 no. 15; Thomas / Putzo / Reichold, ZPO , 26th edition, § 321 marginal no. 5, § 261 No. 9
  19. ↑ BGH, judgment of 20 January 2015 - VI ZR 209/14 paragraph. 7th
  20. ↑ MünchKommZPO / Musielak, 2nd edition, § 321 marginal no. 7; see. also Senate resolution of February 18, 1982 - VIII ZR 39/82, NJW 1982, 1821
  21. ↑ BGH, judgment of February 16, 2005 - VIII ZR 133/04 marginal no. 17th
  22. ↑ BGH, decision of July 16, 2013 - 4 StR 144/13 para. 2
  23. ^ Detlef Burhoff: Correction decision? Caution and only in exceptional cases ... " September 13, 2013
  24. ↑ Melina Kammerer: The obvious incorrectness according to § 129 AO. Admissibility of the correction of tax administration files Bucerius Law Journal 2016, pp. 19-25
  25. ↑ BVerwG, judgment of May 31, 1979 - 3 C 75.78 - Buchholz 427.3 § 335a LAG No. 65 p. 48 f. and decision of January 11, 2000 - 11 VR 4.99 - Buchholz 316 § 42 VwVfG No. 4 p. 2
  26. ^ NN: Cancellation of the administrative act CF Müller Verlag, o. J., p. 208, margin no. 297
  27. ↑ BVerwG, decision of November 29, 2018 - 1 WB 20.18 marginal no. 18th
  28. ↑ BVerwG, decision of October 23, 1985 - 7 B 193.85 - Buchholz 316 § 42 VwVfG No. 3 p. 2
  29. ↑ BMF letter of January 31, 2014 - IV A 3 - S 0062/14/10002 AEAO on § 129 - Obvious incorrectness when issuing an administrative act: 2., p. 116 f.
  30. ↑ Draft of an Administrative Procedure Act (VwVfG) BT-Drs.7 / 910 of July 18, 1973, p. 62 on Section 38 of the VwVfG in the version of January 1, 1977
  31. ↑ Joint Rules of Procedure of the Federal Ministries (GGO), as of September 1, 2011
  32. ↑ cf. Yooncheol Choi: The Legislature's Duty to Eliminate Legal Defects Hamburg, Univ.-Diss. 2002, p. 117 f.
  33. ↑ Amendments to tax laws due to deficiencies in the legislative process unconstitutional, press release of the Federal Constitutional Court No. 12/2019 of February 14, 2019, Essential Considerations of the Senate, I. 6.
  34. ↑ Federal Ministry of Justice : 3.3 Correction of a new publication, Handbuch der Rechtsformlichkeit, 3rd ed.
  35. ↑ cf. also guidelines for the editing of legal provisions (editorial guidelines - RedR) Announcement of the Bavarian State Government of June 16, 2015, Az. B II 2 - G 49/13 - 5 (AllMBl. p. 319), 6.3.