Vocation (law)

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The appeal , also called an appeal , is an appeal against a judgment of the first instance . It usually stands between the first instance judgment and a possible revision , but can also be skipped under certain conditions depending on the procedural rules. With the appeal, both legal and, under certain circumstances, factual complaints can be pursued and new facts and evidence can be provided. The appeal process can therefore have a dualistic character, it is then both an appeal and a judgment process .

Germany

The appeal is an appeal to review a judgment by a higher court. The appeal differs from the appeal in that the initial judgment is checked not only from a legal point of view, but also from a factual point of view, i.e. the court of appeal may have to repeat a taking of evidence and make its own findings of fact.

An appeal can nevertheless be restricted to the legal consequences in a permissible manner by the parties entitled to appeal (→ disposition maxim ). However, the court of appeal cannot do this of its own accord.

The first instance judgment can only be appealed against within a certain period and form . The deadline and formal requirements also apply to the reasons for the appeal, which must be distinguished from the appeal. If no appeal is lodged, the initial decision becomes final and is therefore not subject to later review, even if it should be incorrect. The retrial is an exception to this . The period of appeal according to the German procedural rules is 1 month (for example: § 517 ZPO ), in criminal cases 1 week ( § 314 StPO ).

Civil matters

In civil proceedings there is an appeal against the final judgments of the local courts and the regional courts that acted in the first instance . The judgment can be submitted for review in legal and factual terms, but new submissions (i.e. the presentation of new evidence) cannot be taken into account if it could already have been submitted in the first instance ( preclusion ). The appeals court does not have to take evidence in all cases.

The appeal can therefore only be based on the fact that the contested decision is based on an infringement or that new facts to be taken into account justify a different decision ( Section 513 (1) ZPO). New facts, i.e. those that the court of first instance was not or could not take into account, are then only permitted to a limited extent in the appeal proceedings and under special conditions ( Novenrecht ).

A cross appeal , so a separate appeal by the other party is permitted.

The appeals court will only review the content of a judgment if the appeal against it is admissible and admissible. An appeal against most of the first instance judgments is permissible. It is admissible if the value of the subject of the complaint (= the appeal sum) exceeds 600 euros or if the court of origin has admitted it ( Section 511 (2) ZPO). The maximum appeal amount can be as high as the complaint received in the first instance . If the complaint does not exceed 600 euros, an appeal is not permitted.

Court of appeal: As the court of appeal, the regional court reviews the judgments of the local court in civil matters ( § 72 GVG), the higher regional court the first instance judgments of the regional court ( § 119 GVG). Both courts require a lawyer to carry out the appeal according to Section 78 ZPO.

Bench hearing in civil matters in district courts are the civil chambers and in the second instance the civil divisions .

In patent nullity and compulsory licensing matters, appeals have been made to the first instance decision of the Patent Office since 1877, until 1961, and since then to the Federal Patent Court. It follows its own rules and not the code of civil procedure . The court of appeal was initially the Reich Higher Commercial Court , then the Reich Court. The Federal Court of Justice has been a court of appeal since 1950 . In the GDR the appeal went from the Office for Inventions and Patents (AfEP) to the Supreme Court .

The appellate court decides either by means of a rejection decision if the chamber unanimously considers the appeal to be unfounded, the matter has no fundamental significance and it is not necessary to ensure uniform jurisdiction ( Section 522 ZPO). If this is not the case, the appellate court decides on the basis of an oral hearing through judgment ( § 523 ZPO). The possibility of rejecting appeals by decision was repeatedly criticized because there was no legal remedy against the decision (see web links). The Bundestag reacted to the criticism and on July 7, 2011, in 2nd and 3rd readings, passed a change in the rules of appeal. Thereafter, as a rule, an oral hearing should also take place in the appeal body. The possibility of the appeal rejection by resolution should only be possible in the event that the appeal is "obviously" inadmissible. The non-admission complaint will be introduced for amounts in dispute over 20,000 euros . The change in the law came into force on October 27, 2011.

Criminal matters

In criminal matters there is according to § 312 StPO appeals only against judgments of the local court (legal wording: “against judgments of the criminal judge and the lay judges ' courts ” ). The regional court decides on such appeals ( Section 74 (3) GVG). The Small Criminal Chamber , which has a professional judge and two lay judges ( Section 76 GVG), is responsible.

There is no appeal against judgments of the Regional Court or the Higher Regional Court, only the appeal on which the Federal Court of Justice decides according to § 135 GVG , unless the Higher Regional Court is responsible for judgments of the Regional Court according to § 121 Para. 1 No. the revision is based exclusively on the violation of a legal norm contained in the state laws.

A specialty is the call to accept according to § 313 StPO. In the case of convictions with a fine of not more than fifteen daily rates, with a warning with a penalty of not more than 15 daily rates, with a conviction to a fine or with acquittal or suspension in cases in which the public prosecutor's office did not demand more than thirty daily rates, the appeal is only permissible if it is accepted by the appeals court. The appeal is accepted if it is not clearly unfounded. Otherwise it is rejected as inadmissible. The possibility of a jump revision remains unaffected by the call to accept . This is always possible, whereas a rejected call for acceptance cannot be contested.

The defendant can be represented in the appeal by a defense attorney provided with a written power of attorney ( Section 329 (1) StPO).

Work things

Appeals to the regional labor court are possible against judgments of the labor court . The panel is made up in the same way as the labor courts (one professional judge as chairman, two honorary judges). In most of the federal states at least one regional labor court has been set up, in Bavaria there are two, in North Rhine-Westphalia three. Berlin and Brandenburg have a joint regional labor court.

Administrative and public law matters

In matters under public law, the appeal requires approval. The first instance must allow it if the matter has not yet been decided (uniformly) and is therefore of fundamental importance or the decision deviates from the previous case law of higher-level courts. In addition, the appeal must be approved by the second instance on request if the requirements of Section 124 VwGO are met.

Cross-appeal is permitted.

If the appeal is excluded, an appeal is possible.

The court of appeal in administrative litigation is the Higher Administrative Court or the Administrative Court in Baden-Württemberg , Bavaria and Hesse .

Social affairs

In social trial appeal against judgments and find court decisions instead.

As an exception, the appeal requires approval if there is no more than € 750 in dispute (in the event of reimbursement disputes between authorities: € 10,000, Section 144 (1) SGG), unless ongoing or recurring benefits are in dispute for a period longer than one year. The appeal is always admissible if the subject of the dispute cannot be quantified because the subject of the dispute is not a monetary, material or service.

The social court must allow the appeal if the legal matter is of fundamental importance or deviates from a decision by a higher court ( Section 144 (2) No. 1 and 2 SGG). If the social court does not allow the appeal, the non-admission complaint to the regional social court is given ( § 145 SGG).

The court of appeal in social justice is the regional social court (LSG). Another complete fact-finding instance takes place before the LSG . An appeal against judgments of the LSG is given if it is approved by the LSG or the Federal Social Court . The appeal court examines ex officio whether the necessary amount in dispute for the non-admission-free appeal exists or whether the appeal was not already inadmissible because it would have required admission; in this respect it is not bound by the findings of the appellate court.

Financial matters

In the financial jurisdiction, only the revision is permitted because the financial courts are designed as higher regional courts according to the tax court order, so that the only appeal court is the Federal Fiscal Court . There is no calling.

Austria

Civil matters

In civil proceedings with a value in dispute of up to 15,000 euros and in cases specified by law (for example in family law or tenancy law matters), the district court has jurisdiction in the first instance . An appeal goes to the higher regional court , which decides through an appeal panel in the second instance. In particularly important cases - in which legal questions of fundamental importance have to be resolved - a further appeal to the Supreme Court against the decision of the 2nd instance is possible with the appeal .

In cases in which the amount in dispute exceeds 15,000 euros and in a few legal cases (for example in competition disputes or copyright disputes), the regional court decides in the first instance (either by a single judge or a senate). An appeal against the regional court ruling can be referred to the higher regional court in the second instance. In particularly important cases - in which legal questions of fundamental importance have to be resolved - an appeal to the Supreme Court is possible.

The appeal to court in civil proceedings can therefore consist of three stages.

Criminal matters

The district court is first instance for criminal proceedings for offenses responsible only for the fine or imprisonment is threatened up to 1 year (for example, negligent bodily injury, theft). An appeal against the district court judgment for guilt and / or punishment is possible to the higher regional court , which decides through a senate consisting of three judges.

The single judge at the regional court decides in the first instance on all crimes and offenses that are threatened with a prison sentence of a maximum of 5 years (e.g. false testimony in court). The appeal for debt and / or penalty against the judgments of the District Court of First Instance the parent decides Court of Appeal .

For criminal proceedings for serious crimes with up to life imprisonment (for example robbery, murder, rape, abuse of official authority, high treason) the regional court as lay judge or jury is responsible in the first instance. An appeal against the verdict on the amount of the penalty to the higher regional higher regional court is possible against his judgments. The guilty verdict itself can only be fought with a nullity complaint , on which the Supreme Court (OGH) decides. If an annulment complaint has been made and it is not rejected by the Supreme Court without an oral hearing, the Supreme Court also decides on the appeal due to the penalty.

In criminal matters, there are two stages of appeal . This means that the decision of the appellate authority cannot be challenged any further.

Administrative law

As a rule, an appeal to the competent administrative court is possible against notices from the Austrian administrative authorities . The appeal to a superior administrative authority ( administrative stages of appeal ) is only in the affairs of their own sphere of municipalities provided. The General Administrative Procedure Act provides for an appeal period of two weeks, whereby different deadlines must be observed in tax matters and also in individual other material matters.

Before the 2012 amendment to administrative jurisdiction came into force , administrative instances were the norm. Each decision could be fought by appeal until the entire court of appeal was run through ("exhausted"). A complaint could only be lodged with the Administrative Court or the Constitutional Court against the decision issued by the highest instance . The administrative move was often regulated by law. In the absence of a statutory regulation, the administrative train of instances followed the path of the organizational superordinate authorities to the highest authority, for example in the immediate federal administration to the responsible federal minister . This principle was not expressly regulated in the Federal Constitutional Act. Only for the area of indirect federal administration did the Federal Constitutional Act with Art. 103 Para. 4 provide an express regulation that originally (cf. Art. 103 Para. 4 B-VG in the version valid until December 31, 1974) provided that the instance goes through the governor to the responsible federal minister. With the amendment to the Federal Constitutional Act in 1974, this provision was changed so that Article 103, Paragraph 4 of the Federal Constitutional Act now stipulated that the administrative authority would end with the governor. As an exception to this, the provision for cases in which the governor was the first instance stipulated that the administrative instance would continue to go to the competent federal minister. The principles mentioned cannot be transferred to self-governing bodies. There was only one administrative instance if this was expressly provided for by law.

Switzerland

Federal law

StPO

Articles 467 to 478 of the Swiss Code of Criminal Procedure provide for the possibility of appeal.

Military criminal trial

In federal military criminal proceedings, an appeal against judgments of the military courts with the exception of judgments in absentia is permissible under Article 172 Paragraph 1 MStP .

The defendant, the injured party, the victim and the auditor have the legitimacy to appeal . The chief auditor or the commander who ordered the investigation are not legitimized .

A cross- appeal is not provided for in military criminal proceedings.

The appellation is judged by the competent one of the 3 military appellate courts.

Before the hearing - and again during the hearing - the parties are given the opportunity to submit evidence. In contrast to the first instance proceedings, in which the principle of immediacy prevails, the files circulate among the judges before the appeal hearing.

The prosecution is represented by the same auditor who has already acted in the first instance.

The appeal hearing can take place anywhere in Switzerland.

If necessary, the appeal judgment can be passed on to the Military Court of Cassation.

ZPO

Art. 308 ff. Of the Swiss Code of Civil Procedure of December 19, 2008 provide for the possibility of an appeal.

Cantonal law

The legal remedy of the appellation also exists in some cantonal laws (for example in the canton of Bern to the administrative court).

literature

Web links

Individual evidence

  1. ↑ Caroline Meller-Hannich : The new version of § 522 ZPO - Indefinite legal terms, discretion and a novel legal remedy , NJW 47/2011, 3393
  2. ↑ BSG, judgment of July 4, 2018, AZ B 3 KR 14/17 R
  3. ↑ Legal sentence for GZ 96/19/3578 of the Administrative Court , legal information system of the federal government, accessed on May 14, 2020.
  4. ↑ Legal sentence for GZ 99/01/0324 of the Administrative Court , legal information system of the federal government, accessed on May 14, 2020.
  5. ^ Canton of Bern - Collection of edicts. In: www.belex.sites.be.ch. Retrieved December 22, 2016 .
  6. ↑ http://www.manz.at/list.html?isbn=9783214009786