Inhibition (law)

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In civil law, the suspension relates to the period during a limitation period within which this period comes to a standstill due to certain reasons for inhibition and continues after the reasons no longer apply. In criminal procedure and administrative law , the inhibition means that a court judgment or an administrative act does not become legally effective before a final decision has been made on an appeal .

General

The legal term inhibition generally means that the legal validity of a claim or judgment is postponed because there are reasons to temporarily protect the person concerned from it until the reasons no longer apply. The inhibition gives those affected the opportunity to exercise their own rights without the threat of missing a deadline with its negative legal consequences . Suspension means that the period during which the limitation period is suspended is not included in the limitation period.

civil right

There are inhibitions in civil law, especially in the area of limitation . Here there is the so-called start-up inhibition (§ § 207 BGB and § 208 sentences 1 and 2 BGB) right at the beginning of the statute of limitations and the expiry inhibition (§ § 203 sentence 2 and § 206 BGB) if the statute of limitations does not expire before a certain period occurs after certain circumstances have occurred.

Statute of limitations

Within the limitation period, the debtor has the obligation to fulfill a claim of the obligee (such as the payment of the purchase price from a purchase contract ) on time and in full . If a limitation period expires, the claim subject to the limitation can no longer be asserted by the obligee. Because the debtor is entitled to the objection of limitation , which means that the claim is permanently - even in court - unenforceable .

Reasons for inhibition

The law only recognizes a limited number of reasons for inhibition. Above all, this includes:

  • Pending negotiations : if negotiations are pending between the debtor and the creditor about the claim or the circumstances giving rise to the claim, the limitation period is suspended ( Section 203 BGB). This also includes the cases in which a customer complains about defects in the contract for work and the entrepreneur carries out a check up to the point in time at which claims for defects are finally rejected.
  • Prosecution: The limitation period is particularly inhibited by ( § 204 BGB)
  • Right to refuse performance: If the debtor has a right to refuse performance ( Section 205 BGB), the statute of limitations is suspended (main case: subsequent deferral ).
  • Due to force majeure , the statute of limitations is suspended ( Section 206 BGB).
  • Inhibition in the family and similar cases: According to § 207 BGB, the statute of limitations for mutual claims between spouses and registered civil partners is inhibited during the duration of the marriage or civil partnership . For example, the start compensation claim against a spouse who is a part of the other spouse thing culpably damaged, only with legal force of the divorce decree to expire. The statute of limitations between a child and his or her parents or the spouse or registered partner of one of the parents is suspended until the child reaches the age of 21. The statute of limitations between guardian and ward is suspended for the duration of the guardianship , the statute of limitations between the custodian and the person under care for the duration of the care and the statute of limitations between the carer and the carer for the duration of the custody .
  • Sexual self-determination : Claims for violation of sexual self-determination are suspended until the creditor turns 21 ( Section 208 BGB). If the creditor lives on claims for violation of sexual self-determination at the beginning of the statute of limitations with the debtor in a domestic community, the statute of limitations is suspended until the end of the domestic community.

This closed catalog ( numerus clausus ) cannot be expanded at will. Only an offense contained in these regulations triggers the suspension of the limitation period. In the case of legal prosecution, the suspension ends six months after a legally binding decision, other termination or (in the event of a standstill due to failure of the proceedings by the parties) the last procedural act (Section 204 (2) BGB).

Contrary to a widespread opinion, the (extrajudicial) warning as such is not a reason for inhibition. The only exception is the suspension of a consumer loan in the event of a reminder triggering default for 10 years ( Section 497 (3) BGB).

Limitation periods

The following limitation periods are provided in § § 195 ff. BGB :

These are extended by the inhibition period if there are reasons for inhibition or reasons for a restart of the limitation period.

Other types

If the surety raises the objection of the advance action , the limitation period for the obligee's claim against the surety is suspended until the obligee has attempted foreclosure against the principal debtor without success ( Section 771 sentence 2 BGB). The 30-year period is suspended at the bookers ' meeting as long as there is an objection to the correctness of the entry in the land register ( Section 900 (1) BGB). An emergency will drawn up in accordance with § 2249 , § 2250 or § 2251 BGB is deemed not to have been drawn up if three months have passed since it was drawn up and the testator is still alive ( § 2252 BGB). The beginning and the end of this period are suspended as long as the testator is unable to draw up a will before a notary .

Legal effect

In § 209 BGB it is determined that the period during which the limitation period is suspended is not included in the limitation period. As a result, the limitation period interrupted by the suspension comes to a standstill and continues after the suspension has ceased.

Criminal procedural law

The suspensive effect here means that the court decision does not become legally effective before the legal remedy has been finally decided.

In criminal procedural law , the application for restitution to the previous status does not prevent the enforcement of a court decision ( Section 47 (1) StPO ). Even the filing of a complaint does not prevent the enforcement of the contested decision ( Section 307 (1) StPO), but enforcement of the contested decision can be suspended upon application (Section 307 (2) StPO). By submitting the appeal in good time , however, the legal force of the judgment is inhibited ( Section 316 (1) StPO); this also applies to the appeal in accordance with Section 343 (1) StPO . This means that the prison sentence imposed in the criminal judgment does not have to be started until the appeal has been finally decided. An application by a prisoner for a court decision has no suspensive effect ( Section 114 (1) StVollzG ).

During the ongoing criminal process, if a defendant becomes ill, the interruption period of the main hearing is suspended by law ( Section 229 (3) of the Code of Criminal Procedure) if it took place on at least ten days beforehand. The court determines the beginning and end of the suspension by means of an incontestable decision.

Administrative law

An administrative act that is issued to establish or enforce the claim of a legal entity under public law suspends the statute of limitations for this claim in accordance with Section 53 (1) VwVfG . The suspension ends when the administrative act becomes incontestable or six months after it has been dealt with otherwise. If an administrative act within the meaning of Section 53 (1) VwVfG has become incontestable, the limitation period is 30 years (Section 53 (2) VwVfG). A mere legal error by the authorities is not sufficient for the assumption of a statute of limitations. Unfold opposition or legal challenge exceptionally no suspensive effect , see § 80 para. 4 Code of Administrative Procedure and § 80a para. 1 no. 2 Code of Administrative Procedure, the possibility of suspending the enforcement authorities. This official suspension temporarily inhibits the effectiveness of an administrative act (in dispute).

By filing a lawsuit before the tax court , the execution of the contested administrative act is not inhibited, in particular the collection of a tax is not stopped ( Section 69 (1) FGO ).

International

In Austria, the suspension postpones the beginning or the continuation of a statute of limitations (§ 1494 ff. ABGB ). The reasons for inhibition are the “lack of intellectual powers ” ( § 1494 ABGB), certain family relationships ( § 1495 ABGB), absence in public services and a standstill in the administration of justice ( § 1496 ABGB).

The suspension - in Switzerland mostly called the hindrance or standstill of the limitation period - is regulated for the limitation periods under Swiss private law in Art. 134 OR; this standard is, at least analogously, also applicable in almost all cases to the statute of limitations in federal and cantonal public law. Reasons for inhibition are, on the one hand, such a close relationship between creditor and debtor that the creditor cannot be expected to pursue his claims (e.g. during the duration of a marriage) and, on the other hand, the impossibility of asserting the right before a Swiss court. In addition to the obstacles in Art. 134, Paragraph 1 of the OR, there are still other obstacles scattered across the whole of the law. In principle, forfeiture periods cannot be suspended.

Individual evidence

  1. ^ Annette Guckelberger, The Statute of Limitations in Public Law , 2004, p. 644
  2. ↑ Detlef Leenen, BGB general part: Legal business theory , 2015, p. 341
  3. ^ OVG Koblenz, ZBR 2000, 175
  4. ↑ Wolf-Rüdiger Schenke, Administrative Process Law , 2012, p. 334, Rn. 986
  5. ↑ Joseph von Winiwarter, The Austrian Civil Law: Community Provisions of Personal and Property Rights , Volume 5, 1838, p. 227 ff.