Complaint
The complaint is a term from German procedural law. It is a prerequisite for the admissibility of an appeal . An appeal shall pertain only one who can claim by a decision in an individual right to be violated, popular complaints excludes principle.
A distinction is made between formal and material complaints. In particular, the plaintiff is formally complained if the decision deviates negatively from his application for the matter (so-called difference consideration ). The defendant is materially complained if a decision is unfavorable for him. For example, if a seller claims a purchase price of 10,000 euros, but if the action is only upheld in the amount of 6,000 euros and otherwise dismissed, he is formally complained in the amount of 4,000 euros (partial rejection), the defendant is in the amount of 6,000 euros that he was sentenced to pay. The law may set certain value limits for the value of the complaint to be asserted with an appeal.
The complaint in criminal proceedings means that the judgment formula must contain an immediate disadvantage for the convicted person , which directly affects his rights and protected interests (so-called tenor complaint ). It is not enough if the content of the grounds of the judgment incriminates him in any way.
An acquittal due to unproven culpability within the meaning of Section 20 StGB does not affect the accused and can therefore not be appealed against. In criminal proceedings, no appeal is required by the public prosecutor's office ( Section 296 (2) of the Code of Criminal Procedure).
An administrative court action is admissible only if the applicant submits that by the administrative act violated or its refusal or omission in his rights to be ( complaints or legal standing , § 42 para. 2 Code of Administrative Procedure). The mere possibility of an infringement is sufficient for the legal action to be admissible . Burdensome administrative acts easily complain to the addressee because of the interference with the general freedom of action ; under certain conditions, favorable administrative acts can also affect third parties, such as neighbors, when a building permit is granted . However, the action is only justified with the consequence that the court cancels the administrative act and any notice of objection, insofar as the administrative act is unlawful and the plaintiff's rights are actually violated as a result ( Section 113 (1) sentence 1 VwGO).
literature
- A. Kohlmeier: Complaint as a condition of complaint. 1997
- Othmar Jauernig : The BGH and the complaint. NJW 2003, 465
- C. Althammer: Complaint and subject of the complaint. NJW 2003, 1079
Individual evidence
- ↑ Wendt Nassal: value limits , accessed on 24 April 2017th
- ↑ st. Rspr .; see. BGH, judgment of January 18, 1955 - 5 StR 499/54, BGHSt 7, 153 ff. [Acquittal for objective reasons]; Judgment of March 26, 1959 - 2 StR 566/58, BGHSt 13, 75, 76 f. [Discontinuation due to statute of limitations]; Order of November 24, 1961 - 1 StR 140/61, BGHSt 16, 374, 376 ff .; Judgment of May 4, 1970 - AnwSt (R) 6/69, BGHSt 23, 257, 259 [conviction before the court of honor]; Judgment of March 21, 1979 - 2 StR 743/78, BGHSt 28, 327, 330 f. [Failure to order the measure under Section 64 of the Criminal Code]; Decision of August 18, 2015 - 3 StR 304/15 [failure to order the measure according to § 63 StGB]; KG, decision of July 11, 2014 - 2 Ws 252/14 - 141 AR 316/14; OLG Munich NJW 1981, 2208; previously already RGSt 4, 355, 359
- ↑ BGH, decision of October 14, 2015 - 1 StR 56/15 No. 10 ff.
