Kind of action

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The form of action describes the target toward a procedural action . The distinction between different types of action is important in civil proceedings as well as in proceedings under public law. The concept of the type of action is, however, alien to criminal proceedings .

overview

The different types of complaint can be systematized in different ways.

First of all, one can distinguish between objective and subjective procedures. In an objective procedure, a legal norm is checked for its compatibility with the higher-ranking law, i.e. with the objective legal system . If it is unlawful, its nullity is pronounced (cf. nullity dogma ). The objective procedures are therefore procedures in which a standard is the direct subject of the examination; one therefore speaks of “principle” standards control procedures. In a subjective procedure, however, the violation of subjective rights of the plaintiff is examined. The legality of a norm is at best a preliminary question (“incidental norm control”). In administrative procedural law in particular , the admissibility of the action requires that a violation of the plaintiff's rights is possible ( right of action ). Every court is entitled and obliged to ignore unconstitutional sub-statutory norms, whereby such an incidental decision - unlike in the case of the principle review of norms - does not apply in general but only to the present proceedings (→ pre-constitutional law ). For formal laws , on the other hand, the rejection monopoly lies with the Federal Constitutional Court , to which the question must be submitted for a generally binding decision ( concrete control of norms ).

Next you can, depending on the parties, the outer case of the internal dispute differ. While legal subjects , i.e. natural and legal persons, are involved in the - much more frequent - external legal disputes, internal legal disputes take place within a legal person, be it that their organs argue with one another ( inter organ dispute) or the differences of opinion are even settled within the organ ( intra organ dispute ). Internal disputes are an exception because internal law has long been denied the legal quality. While such procedures are sometimes expressly regulated (e.g. the federal organ dispute), there are no corresponding regulations, for example, for the municipal constitutional dispute, so that the existing types of complaint must be used.

You can also go action for performance , design action and declaratory distinguished: due to the power suit, the defendant is sentenced to a capacity while designing action changed the legal situation ( "designed"). The declaratory action, in turn, serves to determine whether a legal relationship exists or not.

Further procedural modes are:

Civil litigation

German civil procedure law knows the performance suit, the structural action and the declaratory action.

The performance suit seeks the statement that the defendant is obliged to perform a certain act. This act can consist of an action, such as the payment of a certain sum of money, or an omission, such as a defamatory statement ( injunction ).

The draft lawsuit requires the court to take its own legal form. An example is the action for dissolution , with which a partner in a company seeks its dissolution, or the action for divorce, in which the marriage is divorced when the judgment becomes final.

The declaratory action finally serves to clarify the existence or non-existence of a legal relationship, the recognition of a document or the determination of its inauthenticity. As in other types of proceedings, it is subsidiary to the performance or structural action, so it can only be brought if the plaintiff cannot achieve the aim of the action with one of these types of action. In the case of the declaratory action, the law also requires ( Section 256 ZPO ) a so-called declaratory interest, i.e. the plaintiff must have an interest in the immediate determination of the legal relationship in dispute. It must not be an exclusively economic or personal interest, the legal relationship must be endangered by actual uncertainty and the declaratory judgment must be suitable to eliminate the endangerment.

A legal relationship that only became disputed in the course of the process, on the existence or non-existence of which the decision of the pending legal dispute depends wholly or in part, can be established by means of an interim declaratory action ( Section 256 (2) ZPO). This interim dispute is then decided by an interim judgment ( § 303 ZPO).

The declaratory action aimed at the non-existence of a legal relationship is also referred to as a negative declaratory action .

Labor court proceedings

Labor court proceedings are generally based on the system of civil proceedings. Questions relating to individual law are decided in the judgment process, issues relating to collective law are decided in the decision process.

Public law proceedings

In public law , disputes can be resolved not only in the specialized courts , but under certain circumstances also in the constitutional courts . Finally, disputes under public law are also conceivable before church courts if they are based on canon law ; the canonical rules of procedure are often based on the types of action of state procedural law.

Specialized courts

The German administrative process as well as the procedures of the financial and social jurisdiction also know structural actions (above all the action for rescission , but also the special case of the principle control procedure), action actions (especially the obligation action , besides to a limited extent also the general action action) and the declaratory action.

For the sake of clarity, the illustration should be based on the example of the administrative court procedure.

The action for rescission ( § 42 VwGO ) is aimed at the annulment of an administrative act . It is given if the plaintiff's rights are violated by an onerous administrative act. In the case of an illegal notice of fees, for example, the plaintiff's interest is that the court should remove this notice. Insofar as the plaintiff has to avail himself of provisional legal protection, the application for suspension of the execution of the administrative act ( Section 80 (5) VwGO) is available.

In contrast, the obligation action, which is also regulated in Section 42 VwGO, aims to oblige the authority to issue a specific administrative act. If, for example, the authority refuses to issue a business license, the challenge of the rejection notice would not be of much use to the plaintiff, because even if this notice were repealed, he would not yet have the desired license. The aim of his action is therefore to say that the authority is obliged to issue the administrative act.

In public law, the declaratory action ( Section 43 VwGO) is aimed at establishing the existence or non-existence of a disputed legal relationship or the nullity of an administrative act. As in civil proceedings, it is subsidiary, i.e. only given if the plaintiff cannot pursue his goal with an action for avoidance or obligation. A variant of the declaratory action is the continuation declaratory action ( Section 113 (1) sentence 4 VwGO) with the aim of retrospectively establishing that an administrative act is unlawful. This is significant in cases in which an administrative act was unlawful, but which had already been dealt with at the time of the decision on the complaint. This can be the case, for example, with police measures. The subsequent determination is only permissible if the plaintiff has a special need for legal protection , for example because he wants to assert claims for damages on the basis of the established determination.

The action for performance ( Section 40 (1) in conjunction with Section 43 (2) VwGO) with the aim of carrying out or failing to undertake simply sovereign administrative action or a real act is given where the administration is in a different manner than by an administrative act becomes active. In contrast to the types of actions related to the administrative act, one speaks here of the general performance action. In the financial court proceedings, it should be noted that the Federal Fiscal Court considers it necessary, where possible, to bring about an administrative act, such as a settlement notification, and only if this is not possible does it consider the performance action to be given.

The principle control of norms ( § 47 VwGO) has the goal of checking statutes and other norms ranked below the state law for their validity, e.g. zoning plans, which are statutes according to the building code (BauGB).

The local constitution dispute is a domestic legal dispute at the municipal level . For example, disputes between the mayor and the municipal council or its members can be brought before the administrative courts. The VwGO is designed for foreign legal disputes, so there is no express regulation. For this reason, the norms on action for performance and declaratory judgment are applied, in some cases analogously . Such disputes are also conceivable in other bodies of self-government .

Constitutional courts

The constitutional procedural law of the Federal Constitutional Court and the state constitutional courts also knows different types of action. Their importance is even greater there because, unlike in administrative procedural law, there is no general clause establishing jurisdiction , but the constitutional courts are only called to decide if one of the enumeratively listed types of action is relevant.

The procedural law of the Federal Constitutional Court regulated in the Basic Law and the Federal Constitutional Court Act (BVerfGG) primarily recognizes the following types of action (complete list in § 13 BVerfGG):

As an objective, principled norm control procedure, the abstract norm control , which enables a review of norms without a specific reason, and the concrete norm control , in which a formal law is checked on presentation of a court, the validity of which is important in the specialized court proceedings.

Constitutional procedural law knows the internal litigation of the organ dispute procedure , in which the highest federal organs or their members dispute over internal legal positions, as well as the external dispute of the federal-state dispute and the municipal constitutional complaint as subjective procedures . The violation of fundamental rights can be criticized with a constitutional complaint. If the effectiveness of a law is checked incidentally, the decision here does not only apply to the individual case, but has the force of law as in the case of the principle control procedures ( Section 31 (2) sentence 2 BVerfGG).

literature

  • Oberrath: Public Administrative Law, textbook for business law and law students , Carl Heymanns Verlag KG, Cologne - Berlin - Munich 2005, ISBN 3-452-26103-4
  • Hillgruber, Christian / Goos, Christoph: Constitutional law , CF Müller Verlag, Heidelberg 2006, ISBN 3-8114-8004-9