Cash decision

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A cash decision (from French casser , to destroy, to destroy ”) is an annulling appeal decision, after which the matter is referred back to the lower court for a new decision. In contrast, in the case of a Reformation decision, a new factual decision is made by the appellate authority itself.

Courts that only have the power to collect are called courts of cassation .

Germany

There is no legal remedy known as cassation in German procedural law. Perhaps best compared corresponding revision to what is known in other countries as cassation. However, in Germany there is the possibility that the appellate court overturns the judgment of the lower court and then immediately decides itself instead of (which happens more often) referring the matter back to the lower court. This option exists in multiple jurisdictions .

Austria

In civil and criminal procedural law, z. B. in the case of an appeal, the court of appeal collectively in the event of procedural errors ( grounds for invalidity and other procedural deficiencies) and reformatory in the case of decision errors (incorrect factual assessment, incorrect legal assessment).

The Administrative Court is no longer limited in decision complaints since July 1, 2012 cassatory decisions, but may in the interest of procedural economy also decide on the merits. According to the Constitutional Court , the administrative courts according to 28 VwGVG is fundamentally obliged to make a reformatory decision.

Switzerland

In the civil case law of the Federal Supreme Court, when choosing between the two types of decision “reformatory” or “collective bargaining”, procedural economic considerations are often decisive. The decisive factor is usually the Reformation decision, along with a negation of the cassation.

In civil proceedings, the appeal (Art. 308ff ZPO) is always reformatory (BSK Art 310 ZPO Rz 5), whereby the complaint (Art. 319ff ZPO) can be reformatory or cash (BSK Art. 327 ZPO Rz 12).

Italy

see Corte Suprema di Cassazione

Individual evidence

  1. ↑ Appeal - General ( Memento of May 16, 2018 in the Internet Archive ) University of Zurich 2016, p. 5
  2. ↑ on the process economy in procedural law: Christoph von Mettenheim : The principle of process economy in civil proceedings. Duncker & Humblot, Berlin 1970, DNB 457587474 .
  3. ^ Criminal law: § 354 StPO. Civil law: § 563 ZPO. Administrative law: § 144 VwGO. Tax law: § 126 FGO. Social law: § 170 SGG.
  4. ↑ cf. For example, the Supreme Court, decision of 6 June 2016 - 17Os4 / 16s (17Os5 / 16p.17Os11)
  5. ↑ Wolfgang Berger, Wilhelm Bergthaler: The new administrative courts: reformatory courage or cashiery carousel? Law of the Environment 2012, pp. 69–70
  6. ↑ Federal Act on the Procedure of Administrative Courts (Administrative Court Procedure Act - VwGVG) RIS , accessed on May 15, 2018
  7. ↑ VfGH: Administrative courts have a fundamental obligation to make reformatory decisions Website of the Administrative Judges Association , August 21, 2014
  8. ↑ Beat Brändli: Litigation Economics in Swiss Law - Basics, Federal Court Jurisprudence and Effects in Swiss Civil Procedure University of St. Gallen 2013, No. 352
  9. ↑ Lukas Handschin, Christof Truniger: On the “cashier nature” of the action for avoidance according to Art. 75 ZGB SJZ 2003, pp. 142–144
  10. ↑ Karl Spühler, et al: Basler Comment Zivilprozessordnung . Ed. 1st edition. Helbing & Lichtenhahn Verlag AG, Basel 2010, ISBN 978-3-7190-3230-2 .