Incident Control
An incident check , also an incident check (from the Latin incident (er) = incidental, random) is the legal check of an anticipatory legal relationship , the existence or non-existence of which determines how a legal dispute is to be decided.
Instead of suspending the procedure in order to have the preliminary question clarified in another pending court or administrative procedure, for example according to Section 148 ZPO, the preliminary question is examined in the relevant procedure itself and the decision is based. In the case of interim declaratory judgment ( § 256 para. 2 ZPO) grows, the decision on the preliminary issue of the final judgment in legal force .
In criminal law , for example, on the question of whether an instigator of participation has made to an intentional, unlawful act (offense) punishable not only alone to examine the culpability of the instigator, but incidentally also the predicate offense itself. Because without participation enabled predicate offense is inciting to do so is legally impossible.
In administrative law , for example , the incidental control of norms plays a role in the question of the legality of a building permit . In the contesting process , the legality of the development plan on which the building permit is based may have to be checked incidentally.
The same applies to the relationship between European law and the national law of the member states. In legally unambiguous cases, the national courts have to leave the national regulations unapplicable if an incident check reveals that national law is incompatible with primary or secondary Union law.
Because of the rejection monopoly of the Federal Constitutional Court , the specialized courts , which consider relevant laws to be unconstitutional, have to bring about a decision of the Federal Constitutional Court according to Art. 100 GG.
literature
- Jürgen Basedow : Collective legal protection and individual rights: The effects of the association process on the incidence control of AGB , archive for civilist practice 182 (1982), pp. 335–371
Individual evidence
- ^ Carl Creifelds: Legal dictionary . 21st edition 2014. ISBN 978-3-406-63871-8
- ↑ BVerwG, decision of October 10, 2006 - 4 BN 29.06
- ↑ Ronald Bresich, Alexander Klingenbrunner: Fundamentals of the examination of Community law by national courts (no year)
