Declaratory action
The declaratory action is a type of action under German law.
Positive declaratory action and negative declaratory action are used to establish the existence or non-existence of a legal relationship , for example a contract . In principle, however, the determination of mere elements of a legal relationship (determination of elements ) is not permitted .
The nullity declaration action wants to determine the nullity of an administrative act .
civil right
The aim of the civil law declaratory action according to Section 256 (1) ZPO is to have the existence or non-existence of a legal relationship or the authenticity or inauthenticity of a document established by a civil court between the parties to a legal dispute . If it is about the determination that a legal relationship exists, one speaks of a positive declaratory action, if it is about the determination that a legal relationship does not exist, one speaks of a negative declaratory action.
Includes the court's decision, as far as a declaratory judgment is upheld, only the desired detection and requires the losing party not specific to the execution enforceable behavior. It can only be raised if the plaintiff has a legal interest in the immediate determination (so-called determination interest ). The determination interest also exists to exhaust the legal process, especially in the case of a subjective violation of basic constitutional rights.
Interim declaratory action
Another case is the interim declaratory action according to Section 256 (2) of the German Code of Civil Procedure (ZPO), which can be used to bring about a legally binding decision on legal relationships prior to the final decision within an ongoing legal dispute . If, for example, there is a dispute in the context of a payment suit as to whether the underlying contract is valid, the plaintiff can, in addition to his application for payment, apply for a declaration that the contract is effective and thus prevent later disputes about the effectiveness of the contract. The interim declaratory action can be brought by the plaintiff together with a performance action or subsequently, and also by the defendant in the form of an interim declaratory counterclaim. A particular interest in establishing a statement is not required.
Statute of limitations and burden of proof
While the filing of the positive declaratory action unfolds the statute of limitations in favor of the obligee , this does not apply to the negative declaratory action (see § 204 BGB ). However , there are no differences with regard to the burden of proof . Since this is assessed according to the substantive legal situation, the creditor, who is the plaintiff in the first case and the defendant in the second case, has to prove in both the positive and negative declaratory actions that the legal relationship in dispute exists.
International civil procedural law
The internationalization of economic relations is also increasingly leading to European parallel proceedings in the area of application of Regulation EC No. 44/2001, which came into force on March 1, 2002, on jurisdiction and the recognition and enforcement of decisions in civil and commercial matters (Regulation Brussels I ). There is - in contrast to the area of application of the Code of Civil Procedure (ZPO) - a lis pendens lock for subsequent actions with the same core point (core point theory), such as. B. in favor of the previously pending negative declaratory action. According to the case law of the European Court of Justice (not shown here), a previously filed negative declaratory action leads, in particular in the Tatry / Maciej Rataj case, to a lis pendens ban for the assertion of a performance action by the claimant. This runs the risk of no longer being able to bring about the limitation-interrupting effect of bringing an action suit (in Germany or abroad).
Administrative law
The legal basis for administrative court proceedings is Section 43 of the Administrative Court Code (VwGO):
- The establishment of the existence or non-existence of a legal relationship or the nullity of an administrative act can be sought by means of an action if the plaintiff has a legitimate interest in the early establishment (declaratory action).
- The determination is subsidiary to the extent that the plaintiff can or could have pursued his rights with a legal action or performance suit. This does not apply if the declaratory action offers more intensive legal protection. This is especially the case with public law contracts with several subject matters.
In addition to the general declaratory action according to § 43 VwGO, there is also, for example, the continuation declaratory action according to § 113 (1) sentence 4 VwGO to determine the illegality of completed administrative acts, as well as the special declaratory action according to § 16 VereinsG to determine the legality of a ban on associations.
The relevant point in time for assessing the factual and legal situation is, in principle, the point in time of the last oral hearing in the action for a declaratory judgment. In the case of the action for a declaratory judgment, however, it depends on the legal situation at the time of the settling event, more precisely: the time immediately before it.
Tax law
The tax declaratory action is regulated in Section 41 of the Tax Court Code (FGO). They exist both in the form of an action for annulment as well as in a simple declaratory action. The declaratory actions are a marginal phenomenon in tax law because in the vast majority of cases taxpayers seek legal protection against burdensome administrative acts and bring an action for rescission .
literature
- Friedhelm Hufen: Administrative procedural law. 8th edition. Beck Verlag, Munich 2011, ISBN 978-3-406-60981-7 , pp. 293-320; 441-446.
- Thomas / Putzo: ZPO comment . 31st edition Munich, 2010 ISBN 978-3-406-59620-9
Web links
- Lexicon entry on juraforum.de (below)
- Article in jurawiki.de
