Notice of hearing

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The hearing complaint or hearing complaint is a legal remedy in German procedural law that allows violations of a decision against the right to be heard ( Article 103, Paragraph 1 of the Basic Law ) to be asserted if a legal remedy or other legal remedy does not oppose the decision ( more) is given.

It is a case of the subsidiarity of the constitutional complaint . This complies with the subsidiarity principle . A constitutional complaint alleging the failure to be heard ( Article 103, Paragraph 1 of the Basic Law) is only permissible "if there is no other legal remedy against the challenged decision and an attempt has been made beforehand, by filing a complaint about the hearing (in particular § 321a ZPO , § 152a VwGO , § 178a SGG , § 78a ArbGG , § 44 FamFG , § 133a FGO , § 33a , § 356a StPO) to obtain remedy at the competent court ”.

The omission of an allowable Anhörungsrüge may lack legal exhaustion and the inadmissibility of a constitutional complaint against a State Constitutional Court lead if the other fundamental right Rügen content does not exceed the legal hearing on the complaint raised the injury.

Civil procedural law

In civil procedure law , the notice of hearing is regulated in Section 321a of the German Code of Civil Procedure (ZPO) and was revised by the law of December 9, 2004 with effect from January 1, 2005. The background to the new regulation was the decision of the Federal Constitutional Court of April 30, 2003, according to which, due to the principle of subsidiarity of constitutional complaints, protection against violations of the right to be heard must primarily be provided by the specialized courts themselves, and corresponding legal remedies must be provided for in the law.

The designation does not result from the heading or the text of the law ( § 321a ZPO only speaks of "complaint"), but the law of December 9, 2004 bears the short title "hearing complaint law". In the literature, the term "hearing complaint" is also used, which clarifies the reference to the right to be heard.

Requirements of the complaint procedure

Admissibility

The judgment or the final decision (including resolutions) must be incontestable. Otherwise, the possible violation of the right to be heard can be brought forward in the regular legal remedy, so that a hearing objection is not required in these cases.

Violation of the right to be heard

The claim of the complained party presupposes a violation of Article 103.1 of the Basic Law; It should be noted here that the civil procedural term of the right to be heard is generally to be understood more broadly than the constitutional term.

Decision relevance

The hearing impairment must have affected the outcome of the decision. This is the case if the decision could not have been ruled out otherwise if the person had been granted a hearing.

Form of rebuff

The defining brief must

  • denote the contested decision
  • substantiate a hearing impairment
  • and state how this has affected the outcome of the decision.

Deadline

The complaint must be submitted in writing to the court whose decision is being attacked within an emergency period of two weeks (in criminal proceedings pursuant to Section 356 a StPO within one week) after knowledge of the violation of the right to be heard; the time at which knowledge was obtained must be made credible . With the hearing complaint according to 33a StPO does not provide for a deadline.

addressee

The complaint must be submitted in writing to the court that is said to have violated the right to be heard. If a lawyer is required there , the complaint must be submitted by a lawyer.

Substance of the complaint

If the complaint is well founded, i.e. if the right to be heard has been violated, the proceedings will be returned to the position in which they were before the decision. Otherwise, the complaint will be rejected or rejected by an incontestable decision .

Demarcation from opposing ideas

It was disputed whether, in addition to the complaint to be heard, a counter- presentation can also be raised. The question was whether the new legal institute will suppress the counter-presentation against court decisions that are no longer contestable, or whether a counter-presentation due to serious formal or material legal errors is still possible in addition to the hearing complaint.

Until some time ago, the opinion was held that, at the latest with the introduction of the complaint, there was no longer any room for the admissibility of a counter-presentation. However, it was not recognized that the hearing complaint can only be used to assert a violation of the right to be heard. Other procedural or material legal deficiencies as well as other unintended inadequacies of a decision that can no longer be challenged in any other way cannot be corrected with this legal remedy. The Federal Constitutional Court has therefore decided that errors in a decision that are not based (solely) on the violation of the right to be heard can still be remedied by the Arbitration Body upon the raising of an objection.

Other rules of procedure

There are similar regulations for the criminal process ( § 33a and § 356a StPO), the process before the labor courts ( § 78a ArbGG), the administrative process ( § 152a VwGO), the process before the social courts ( § 178a SGG), the process the tax courts ( § 133a FGO) and in the proceedings in family matters and voluntary jurisdiction ( § 44 FamFG).

literature

  • Daniel Schnabl: The hearing complaint according to § 321a ZPO - Guarantee of procedural rights by the specialized courts, Mohr Siebeck Verlag, 2007 ( ISBN 978-3-16-149222-8 ).
  • Jürgen Gehb : The slow end of a constitutional dogma? - The tricky way of the Federal Constitutional Court to the hearing complaint law -, DÖV 2005, 683–687.
  • Jürgen Treber: Innovations through the hearing complaint law, NJW 2005, 97-101.
  • Bernhard Ulrici: The hearing complaint law, Jura 2005, 368–372.
  • Rüdiger Zuck: The relationship between the hearing complaint and the constitutional complaint, NVwZ 2005, 739–743.
  • Wolf-Rüdiger Schenke: Extraordinary legal remedies in administrative procedural law after enactment of the hearing complaint law, NVwZ 2005, 729–739.
  • Frank-Michael Goebel (RiOLG, ed.): AnwaltFormulare Zivilprozessrecht, Deutscher Anwaltverlag, 2006, ISBN 3-824-00766-5
  • Ingo-Jens Tegebauer: The hearing complaint in the constitutional practice, DÖV 2008, 954–958

Web links

Individual evidence

  1. ↑ see leaflet on the constitutional complaint to the Federal Constitutional Court .
  2. ↑ Decision of the Bavarian Constitutional Court of May 30, 2012 - Vf. 45-VI-11 ( Memento of the original of August 8, 2016 in the Internet Archive ) Info: The archive link has been 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.bayern.verfassungsgerichtshof.de
  3. ↑ BVerfG, decision of April 30, 2003, Az. 1 PBvU 1/02; BVerfGE 107, 395 - Legal protection against the judge I.
  4. ↑ Saenger (Ed.), Commentary on the ZPO, § 321a, Rn. 4th
  5. ↑ BGH, decision of 23 August 2016 - VIII ZR 79/15
  6. ↑ Musielak, Commentary on the ZPO, 10th edition, § 321a, Rn. 9.
  7. ↑ BVerfG, decision of November 25, 2008 , Az.1 BvR 848/07, full text, Rn. 33 ff.