Objection

from Wikipedia, the free encyclopedia

The objection is

  • a - formal - declaration of intent and / or the - non-formal - contradiction, with which the person indicates that they do not agree with a decision or a procedure,
  • an opportunity to take action against an adverse decision by an authority ,
  • an appeal that can be lodged against certain administrative acts.
  • an appeal against certain judicial decisions.

German law

The objection is given in German law in particular

This must be distinguished from the employee's objection to the works council against termination of the employment relationship by the employer in accordance with Section 3 of the Dismissal Protection Act (KSchG), which, however, is not sufficient to safeguard the rights against termination and therefore plays a subordinate role in practice (legal protection is a lawsuit required at the labor court within three weeks after receipt of the notice of termination).

Legal appeal

Similar to the instruction on the right to object , the instruction on legal remedies for the possibility of objection must meet certain requirements within one month. If these are not met, an objection can still be lodged within one year according to Section 356, Paragraph 2, Clause 1 of the Tax Code (AO). According to Section 356 (1 ) AO, the period only begins to run if, in addition to the possibility of filing an appeal, the authority or court to which the appeal is to be lodged is named, as well as its seat and the deadline to be observed in writing or electronically become. Instructions on legal remedies are also invalid if the essential statements according to § 356 Paragraph 1 AO, § 55 Paragraph 1 FGO are incorrect, incomplete or ambiguous. If the instructions on legal remedies contain additional information, this must also be correctly and unambiguously written.

Objection in tax law

The objection is to be made in writing or electronically within one month after the announcement of the administrative act (objection period, § 355 Abs. 1 AO), in case of incorrect or omitted instruction within one year ( § 356 Abs. 2 AO), in writing or electronically or declared for the record ( § 357 para. 1 sentence 1 AO).

The right to object is acc. § 350 AO of those complained of by the administrative act. In the case of a tax assessment, this is always the taxpayer as the addressee. For the right to object to uniform and separate findings, see Section 352  AO, for the legal successor's right to object, see Section 353  AO.

For an objection to be successful, it must be admissible, admissible and justified:

  • In particular, it is permissible against administrative acts in tax matters, i.e. against tax notices ( Section 347, Paragraph 1, Clause 1, No. 1 AO), administrative acts that are equivalent to tax notices and other administrative acts under the AO.
  • It is admissible if the person affected by the administrative act or its omission can assert a violation of the law or a lack of discretion and has a need for legal protection , i.e. the request cannot be granted in an easier way than the objection (application decree on the tax code, AEAO to § 350 No. 6 para . 1).
  • If both prerequisites are met, the contested administrative act must finally be examined materially for its legality (merits).

Often the taxpayer can refer to proceedings that are already pending and request that the proceedings be suspended:

  • according to § 363 Abs. 2 S. 1 AO, if a lawsuit is pending before a tax court (FG) because of the dispute - in this case the tax office has a discretion in the decision about the suspension of the proceedings;
  • according to § 363 Abs. 2 S. 2 AO, if because of the constitutionality of a legal norm or because of a legal question proceedings are pending at the ECJ ( European Court of Justice ), the Federal Constitutional Court (BVerfG) or a supreme federal court (generally the Federal Fiscal Court [BFH]) is - in this case the procedure is mandatory.

As part of the appeal decision, the entire tax assessment must be checked again in full and can also be changed to the detriment of the appellant. However, the customer must be informed of this possibility beforehand, stating reasons.

As a rule, the objection does not prevent the execution of the administrative act ( Section 361 (1) AO), so that tax payments may still have to be made. The suspension of the tax payment can be achieved in special cases by an application for suspension of the execution ( § 361 Abs. 2 AO). In the event of rejection, the tax court can acc. § 69 FGO can be called ( § 361 Abs. 5 AO).

Opposition in patent law

Austrian law

There is an objection in Austrian law

  • against a conditional payment order in civil proceedings ( § 248 ZPO );
  • against a penal order in administrative criminal proceedings ( Section 49 VStG ).

The objection must be submitted to the authority that issued the order within two weeks. An objection can be made orally or in writing and invalidates the contested parts of the penal order. Only the amount of the penalty as well as individual points or the entire ruling can be challenged. The response of the authority is either to discontinue the procedure or to initiate the due process . In this, the accused must be given the opportunity to justify ( Section 40 VStG), unless one is already included in the objection. This is done through a request for a written statement or a summons for an oral questioning. No higher penalty may be imposed in the subsequent penal decision than in the contested penal order. However, 10 percent of the penalty must be paid as procedural costs.

There is also an objection to the granting of a patent ( Section 102 PatG ). This must be collected within four months from the date of the announcement of the grant of the patent in the Patent Gazette if the subject matter of the patent does not meet certain requirements for a patent to be granted.

United States law

After the respective law of evidence (law of evidence) illegal questions during the interview in the can criminal or civil proceedings the other party by challenging ( english objection ) can complain and a decision to bring about the Court on admissibility. The objection here is an objection that is immediately decided by the judge. If he accepts the objection ( English sustained ), the respondent no longer has to answer, if it is rejected ( English overruled ), the answer is required.

See also

literature

Web links

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

Individual evidence

  1. ↑ Wiktionary, keyword “Einspruch” [1] - meaning 1 (“Request to speak with which one's own rejection of a thing is expressed and an attempt is made to prevent it”); Duden, keyword "Einspruch" [2] - meaning 1 ("Objection, contradiction, protest against something").
  2. ↑ Finanzgericht Münster, 3 K 742/13 Kg, AO Date: 09.01.2014 Court: Finanzgericht Münster Arbitration body: 3rd Senate Type of decision: Judgment File number: 3 K 742/13 Kg, AO
  3. ^ American Bar Association: How Courts Work. Steps in a Trial. Direct examination. ( Memento of the original from August 22, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.americanbar.org