Judicial administrative act

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Judicial administrative acts are under German law certain orders, orders or other measures of a judicial authority . Put simply, these are administrative acts of the judicial authorities. The Administrative Procedure Act , however, does not apply ( Section 2 (3) No. 1 VwVfG), nor is legal recourse to the administrative courts available .

Concept and meaning

Section 11 of the 1st implementing ordinance to the Marriage Act of July 27, 1938 (1st DVO-EheG) referred to the exemption from the requirement of marriage, from the prohibition of marriage due to fraternity, from the prohibition of marriage due to adultery and from the provision of the certificate of marital competence for foreigners as judicial administrative decisions . There was an opportunity to appeal to the Higher Regional Court against negative decisions. The decision on the complaint was reserved to the Reich Minister of Justice (Section 11 (2) sentence 2 of the 1st DVO-EheG).

During the National Socialist rule, the administrative jurisdiction was gradually dismantled. The Allied Control Council, with its Law No. 36 of October 31, 1946, ordered the re-establishment of administrative courts. Ordinance No. 165 on Administrative Justice in the British Zone of September 15, 1948 reorganized access to administrative courts. However, in Section 25 (1) sentence 2 "Administrative acts in the field of civil proceedings, criminal proceedings including the execution of sentences, voluntary jurisdiction and denazification proceedings", they were not subject to appeal before the administrative courts.

With the entry into force of the Administrative Court Regulations (VwGO) on April 1, 1960, Military Ordinance No. 165 was repealed and the Introductory Act to the Courts Constitution Act (EGGVG) was supplemented by the provisions on contesting judicial administrative acts ( § 23 to § 30 EGGVG).

According to Section 23 (1) EGGVG, the ordinary courts decide on application on the legality of the orders, orders or other measures taken by the judicial authorities to regulate individual matters in the areas of civil law , commercial law , civil proceedings , voluntary jurisdiction and the Criminal justice will be taken.

The purpose of this general clause , which applies to certain subject areas, is to remove the review of specifically judicial administrative acts from the jurisdiction of the general administrative courts and to ensure that the courts of more specific jurisdiction decide on the legality of these measures and the civil courts of the more detailed jurisdiction decide on the civil law necessary for the review - and have criminal law knowledge and experience.

An order, order or other measure by a judicial authority within the meaning of Section 23 Paragraph 1 Clause 1 EGGVG only exists if the official act in question is carried out in the performance of a task that the respective authority considers its specific task to be in the is assigned to the specified area of ​​law. Measures that go beyond the areas listed in § 23 EGGVG do not fall under §§ 23 ff. EGGVG; rather, it remains with § 40 VwGO.

Basically, the provisions on judicial administrative acts are an exception to Section 40 (1) VwGO, which in principle opens legal recourse to the administrative courts for disputes under public law of a non-constitutional nature . Public law disputes are also those about the legality of the actions of judicial authorities, as long as they are active in administrative and not in judicial matters. Therefore, the review of a judicial administrative act should actually be carried out by the locally competent administrative court . If the order, order or measure was issued by a judicial authority belonging to the area of ordinary jurisdiction , the courts of ordinary jurisdiction should decide because of the greater factual relevance.

If necessary, the administrative court which is not competent will refer the legal dispute to the civil or criminal senate of the competent higher regional court ( Section 17a (2) GVG, Section 25 EGGVG).

Judicial and enforcement authority

Judicial administrative acts are actions taken by the judicial authorities . These are initially the courts, insofar as they do not act in accordance with the law, but rather fulfill their own administrative tasks. An example is the cost estimate or the granting of access to files to third parties not involved in the proceedings by the board of the court in accordance with Section 299 (2) ZPO. The judicial authorities also include prisons. The police , when they repressive for reconnaissance and prosecution of criminal acts, works as a functional part of the judicial authorities in the field of criminal justice. In the case of double-functional measures , it depends on where the focus of the police activity is.

Catalog of measures

First of all, the case law was of the opinion that a judicial administrative act only exists if it is an administrative act within the meaning of § 35 VwVfG , § 42 VwGO.

It is correct and undisputed that when a judicial authority issues an administrative act, a judicial administrative act is mandatory. The prevailing opinion of the current judicature, however, follows from the fact that the law in § 23 para. 1 EGGVG also speaks of "other measures", as well as from the sense of an objective review by the ordinary jurisdiction that also sovereign action, which does not have the quality of a Administrative act, can be the subject of an application according to §§ 23 ff. EGGVG if the applicant has a corresponding need for legal protection . According to this, § 23 EGGVG also applies to real files .

However, a limit must be drawn where the measure in question has no external effect, for example in the case of internal administrative instructions.

Types of procedure

Challenge request

Section 23 (1) EGGVG initially speaks of the decision on the legality of the judicial administrative acts. This means theapplication for contestation , which seeks the annulment of an act ofjudicial administration that is illegal from the applicant's point of view.

Application for commitment

In accordance with the system of administrative procedural law, the law adds the obligation application to this application in Section 23 (2) EGGVG .

Section 23 (2) EGGVG literally reads: With the application for a court decision, the judicial or enforcement authority can also be required to issue a rejected or omitted administrative act .

The application for an obligation according to Section 23 (2) EGGVG has no special features compared to the legal action for the administrative process. As with the former, however, a differentiation must be made as to whether the judicial authority had a discretion when deciding on the coveted administrative act . In this case, as in administrative court proceedings, the court may not substitute its own discretion for administrative discretion. The court decision can therefore only order the coveted act to be carried out directly if the initial decision was a binding decision or if, as an exception, there was a so-called " reduction of discretion to zero "; in other cases, the judicial authority is simply ordered to reschedule the applicant's application, taking into account the legal opinion of the court.

Declaration request

A separate assessment procedure is not provided for in Sections 23 to 30 EGGVG. However, Section 28 (1) sentence 4 EGGVG contains the possibility of an application for a continuation of the assessment . The corresponding provision reads: If the measure was previously taken back or otherwise, the court will, upon application, declare that the measure was unlawful if the applicant has a legitimate interest in this finding .

The determination interest mentioned in Section 28, Paragraph 1, Sentence 4 is to be broadly defined. It will be the case, in particular, if the applicant has to fear that the judicial authority will undertake the illegal measure again (risk of repetition), or if the finding makes it easier for him to assert recourse claims because of the damage he has suffered from the illegal measure.

Inaction request

Again parallel to the provisions of the Administrative Court Code , Section 27 EGGVG provides for an application for inactivity in the event that the judicial or enforcement authority called upon by the citizen has not decided on an application within three months without the existence of an objective reason. In special cases, the application should also be possible before this deadline has expired ( Section 27 (1) sentence 2 EGGVG).

However, the application for inaction can only be submitted up to one year after the complaint was lodged or the application for taking the measure has been made ( Section 27 (3) EGGVG).

Provisional legal protection

Sections 23 et seq. EGGVG do not contain any provisions on provisional legal protection , neither in the form of the suspension of the execution of a judicial administrative act (cf. Section 80 VwGO) nor in the form of an interim order (cf. Section 123 VwGO).

It was therefore largely taken the view that there was no room for a provisional regulation in this context. This is to be agreed to insofar as the direct application of the norms of the administrative court order in a specially regulated procedure under the EGGVG, which wanted to exclude the applicability of the administrative court regulations, is clearly prohibited. A way out seems conceivable through an analogous application of these regulations. Like any analogous application of the law, this presupposed an unintended loophole in the law , i.e. a constellation in which the legislature did not regulate a case that it would have recognized if it had recognized the need for regulation. The assumption of such a legal loophole is problematic in the context of §§ 23 ff. EGGVG, since the legislature has introduced these regulations by amending the administrative court order and designed them largely parallel to the administrative court regulations, which tends to counteract the unplanned non-adoption of the regulations of § 80 , § 123 VwGO speaks.

However, provisional legal protection is generally permissible in the corresponding application of Section 307 (2) StPO, if - as z. B. in contestable matters - the legal protection claim following from Article 19.4 of the Basic Law to the suspension of the execution of a contested administrative act cannot otherwise be realized.

Subsidiarity

The procedure according to §§ 23 to 30 EGGVG is subsidiary: According to § 23 Abs. 3 EGGVG it should not apply where the ordinary courts can already be invoked on the basis of other regulations. An example is the application for a court decision according to Section 98 (2) sentence 2 StPO.

This subsidiarity clause corresponds to the character of the legal regulation as a determination of jurisdiction: The regulations regulate a special procedure assigned to ordinary jurisdiction, which otherwise would have to be decided by the administrative courts in accordance with Section 40 (2) VwGO. Logically, there is no need for such a regulation where the ordinary courts are called to decide anyway.

admissibility

The admissibility of the application for a court decision is regulated in § 24 EGGVG. In general, the application is (only) admissible if the applicant can plead that his rights have been violated by the contested measure or failure to take the coveted measure. In addition, Section 24 (2) EGGVG provides that the application can only be made after a previous complaint procedure if the law provides for such a complaint procedure for the specific measure.

Application deadline

In accordance with the administrative procedure, the application deadline according to Section 26 (1) EGGVG is one month. Likewise regulated in § 26 EGGVG is the possibility of granting a reinstatement in the previous status in the event of culpable failure to meet the deadline.

Jurisdiction of the higher regional courts

§ 25 para. 1 EGGVG normalizes the jurisdiction of any civil or criminal Division of the Higher Regional Court in which the judicial or law enforcement authority concerned is situated.

According to Section 25 (2) EGGVG, the state legislature can determine that of several higher regional courts only one particular court is responsible for deciding on applications according to Sections 23 et seq. EGGVG. North Rhine-Westphalia has made use of this authorization , which has concentrated jurisdiction for decisions on judicial administrative acts in the field of criminal justice at the Hamm Higher Regional Court .

After the former Section 29 (2) EGGVG (old version) was deleted when the FamFG came into force and replaced by a regulation on legal complaints, the EGGVG no longer contains a general provision as to which procedural rules are to be applied to the proceedings of the higher regional court.

Legal move

According to Section 29 (1) EGGVG, an appeal on a point of law to the Federal Court of Justice is only admissible against the decision of the Higher Regional Court if the Higher Regional Court has admitted it in the decision at first instance. The appeal on points of law is to be admitted if the legal matter is of fundamental importance or if the further development of the law or the safeguarding of uniform case law requires a decision by the appellate court.

literature

Individual evidence

  1. ^ Ordinance on the implementation and amendment of the law for the standardization of marriage and divorce in Austria and in the rest of the Reich (marriage law) , RGBl. I p. 923
  2. cf. Section 1309 (2) BGB in the version that has been in force since July 1, 1998
  3. Official Gazette of the Control Council in Germany p. 183 ( Memento of the original from July 26, 2018 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. verassungen.de, accessed on June 12, 2018 @1@ 2Template: Webachiv / IABot / www.verfassungen.ch
  4. ^ Ordinance Sheet for the British Zone No. 41 of September 13, 1948 p. 263
  5. Federal Law Gazette I p. 17 , §§ 195 Abs. 2 Nr. 2, 179 VwGO in the version of April 1, 1960
  6. BVerwG, judgment of January 16, 2007 - 6 C 15.06 marginal no. 17th
  7. cf. BVerwG, judgment of December 3, 1974 - IC 11.73 = BVerwGE 47, 255
  8. Petzold in Binz / Dorndörfer, GKG / FamGKG / JVEG, 2nd edition, § 19, marginal no. 2; Hartmann, Kostengesetze, 42nd edition, GKG § 19 marginal no. 1; OLG Cologne JurBüro 2013, 433
  9. cf. BVerfG, decision of December 2, 2014 - 1 BvR 3106/09 no. 18 ff.
  10. cf. OLG Munich, decision of April 21, 2015 - 5 VAs 19/15
  11. Ehlers, in: Schoch, Schmidt-Aßmann, Pietzner (Ed.), VwGO , 22. EL 2011, § 40 Rn. 586 mwN
  12. Justizverwaltungsakt rechtslexikon.net, accessed on June 11, 2018
  13. cf. also § 114 Paragraph 2 Clause 1 StVollzG; Meyer-Goßner / Schmitt StPO 57th edition § 28 EGGVG marginal number 13; Karlsruhe Higher Regional Court, decision of November 11, 1993, 2 VAs 23/93