Instance (law)

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The instance (legal process, legal process) is the legally competent court according to the hierarchical structure of the jurisdiction in the individual judicial branches . Access to the jurisdiction of a particular branch of the judiciary is the judicial process . Modern legal systems provide effective legal protection through a multi-stage procedure, called a court appeal (also a legal remedy ). The rules of procedure allow a limited review of resolutions, orders, judgments and the inactivity of subordinate courts (subordinate jurisdiction) by the higher courts(superior place of jurisdiction) by taking the competent legal process. The back court (back judge) reviews the decision of the front court (front judge ). The contestability of court decisions is limited according to their type, lapse of time, value limit, subject matter. The (adult, passed) (incontestable) court decisions that have become legally binding are to be accepted as unchangeable by those subject to power and law. In this respect, they have been resigned from the high hand .

Instance train in Germany

There is no constitutionally guaranteed right to more than one instance in Germany . The Art. 19 para. 4 of the Basic Law granted effective legal protection in one process step. According to Article 47 of the Charter of Fundamental Rights of the European Union, to which Germany is a party, and the corresponding practice of the European Court of Human Rights (ECHR), there is a right to be heard before at least two instances . A course to the next higher instance is opened solely by the procedural admissibility of a legal remedy and is excluded if it is inadmissible. The three remedies are appeal , appeal, and appeal .

Against final decisions in Germany for violation of fundamental rights , the constitutional complaint to the Federal Constitutional Court allowed. The constitutional complaint, however, is not an extension of the specialized judicial authority for the procedure before the ordinary courts or administrative courts (so-called super-revision authority ), but it is an extraordinary legal remedy in which only the violation of specific constitutional law is examined.

The factual jurisdiction of the courts is determined by the Law on the Constitution of Courts (GVG).

The names of the courts in the instance are lower court (instructor, formerly after court, after judge ), middle court (middle judge ), upper court ( upper judge ), upper court ( upper judge, abolished in all German states except Bavaria ) and highest courts as federal courts (federal judge as highest judge) .

According to all procedural rules of the court branches, the instances of appeal in Germany are either two-tiered or three-tiered. The ordinary jurisdiction includes civil law and criminal law .

civil right

In civil law disputes, the court of first instance is usually the local court if the amount in dispute does not exceed 5000 euros ( Section 23 GVG ). The district court has jurisdiction in the cases of § 23 No. 2 GVG regardless of the value of the dispute. The court of appeal is the regional court ( Section 72, Paragraph 1 of the GVG), exceptionally the Higher Regional Court as the court of appeal ( Section 119, Paragraph 1, No. 1 of the GVG). The appeal in civil cases is allowed if the value of the complaint item exceeds 600 euros or has approved the appointment of the judgment, the Court of first instance ( § 511 ZPO ).

In disputes about claims, the subject matter of money or monetary value exceeding the sum of 5000 euros, the regional court is responsible in the first legal process (several exceptions, § 71 GVG). The court of appeal is the higher regional court. The revision instance is the Federal Court of Justice . Exceptions apply to Bavaria, which maintains the Bavarian Supreme Court .

The court of first instance has jurisdiction for model assessment proceedings .

If the appeal instance is skipped, one speaks of a jump revision (§ 566 ZPO).

In family or child-related matters, the district court is the first instance. The court of appeal is the higher regional court and the court of appeal is the Federal Court of Justice.

Criminal law

The court of appeal against the first instance decisions of the criminal judges or lay judges of the local court is the district court . The appeal body is the higher regional court . Jump revisions are allowed. The court of appeal according to the regional court's primary jurisdiction is the Federal Court of Justice , Section 135 I GVG, with the exception of Section 121 I No. 1. c) GVG.

Decisions by courts which are not competent in terms of their subject matter or location are not in any event and not necessarily ineffective, Section 344 II sentence 1 of the Code of Criminal Procedure.

Specialized jurisdiction

The branches of law in particular areas of law are called specialist jurisdictions .

Labor jurisdiction

The jurisdiction in labor matters is exercised by the labor courts, the state labor courts and the Federal Labor Court (courts for labor matters). In the three-stage court structure, the usual appeal, complaint and review bodies. A jump revision from the labor court to the federal labor court is permissible.

Social justice

The court of first instance in social justice is the social court . Appeal to the regional social court . The appeal body is the Federal Social Court . Jump revision is permitted.

Special case: The Federal Social Court decides in the first and last instance on non-constitutional disputes between the federal government and the federal states or between different federal states in social security matters .

Financial jurisdiction

The financial jurisdiction is two-tiered. The first instances are the finance courts of the federal states as higher regional courts (Section 2 FGO). The second instance as the revision instance is the Federal Fiscal Court in Munich.

Administrative jurisdiction

Courts of first instance in administrative jurisdiction are the administrative courts of the federal states. Appeal to the Higher Administrative Court. In some countries, the higher administrative courts are also called administrative courts . The last instance (revision instance) is the Federal Administrative Court . The administrative court order grants the legal remedy of the jump revision.

Special cases:

  1. If the Higher Administrative Court or the Administrative Court of First Instance (according to § 47 , § 48 VwGO ), there is only the possibility of an appeal to the Federal Administrative Court.
  2. The Federal Administrative Court can be the first and last instance according to § 50 VwGO.

Instance train in Austria

In Austria , too, the courts are organized in several stages . The organization of courts in Austria is characterized by a division into ordinary jurisdiction (for criminal and civil law) and courts under public law (for constitutional and administrative law).

Criminal and civil law

The ordinary jurisdiction is divided into district courts , regional courts and higher regional courts as well as the Supreme Court. In principle, court decisions can be challenged with legal remedies. Legal remedies are appeals , appeals and complaints .

In principle, the higher level court decides on an appeal. In civil matters, a further appeal to the Supreme Court is provided against the decision of the appellate court under certain conditions . In criminal matters, only a two-tier instance is generally set up.

Public law

The courts under public law, the Constitutional Court and the Administrative Court , work uniquely.

Court of Justice in Switzerland

Most of the courts in Switzerland are organized at cantonal level. They encompass all instances upstream of the federal courts. In civil and criminal law, these are

Depending on the canton, also called cantonal court (in certain smaller cantons with only one single court of first instance), district court, regional court, regional court or civil court or criminal court . In civil law, they are preceded by the magistrates of the peace or mediators, who are often at the municipal level .
in another cantonal court , so this term can refer to a court of first or second instance depending on the canton. In the canton of Basel-Stadt appellate court, in canton Ticino appellate court (civil law disputes) or appeal court (criminal law disputes) and in canton Geneva Cour de justice .
  • a third instance, namely the court of cassation , as it was known to a few cantons (Zurich, St. Gallen), has ceased to exist with the federal procedural rules ( ZPO and StPO ) that came into force in 2011

Often there are also specialized or special courts, some with their own instance.

The judiciary at the Swiss federal level consists of the Federal Supreme Court (BGer) with its headquarters in Lausanne and Lucerne (two social law departments), the Federal Criminal Court in Bellinzona (since April 2004) and the Federal Administrative Court (since January 2007) and the Federal Patent Court (since January 2012) in St. Gallen .

See also


Individual evidence

  1. ^ Constitutional complaint, accessed on May 4, 2021.