ex officio

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The expression ex officio , abbreviated v. A. w. , or ex officio , abbreviated e. o. , means that someone virtue of the delegated duties specific functions , powers or proxies holds or is responsible or that an authority or a court of a particular administrative action or no procedural act application or other document instituting the proceedings measures by themselves in office operation performs. In Austrian legal language, the adjective or adverb amtswegig and the noun Amtswegigkeit are also used. In criminal law , the fact that certain criminal offenses ( official offenses ) must be prosecuted ex officio by the state is referred to as the official principle or maxim .

Functions ex officio

It is very common all over the world that a certain position is associated with additional mandates or functions without a particular vocation. The Pope has been the ex officio head of state of the Vatican since the Lateran Treaty . The Bishop of Urgell and the President of France are heads of state of Andorra because of their office . The US Vice President is the ex officio President of the Senate . The same rule applies to most of the state vice-governors who preside ex officio on their respective state boards. In Poland, the parliament speaker (has Sejm ) in accordance with Article 114 of the Constitution of 2 April 1997 on its own initiative the chair of the National Assembly held.

In Germany the President of the Bundesrat is ex officio representative of the Federal President according to Art. 57 GG . The incumbent President of the Bundestag ex officio has the task of calling the Federal Assembly ( Section 1 of the Federal Presidency Act), of chairing its meetings ( Section 8 of the Federal Presidency of the Election Act) and of declaring the meeting to be over after the election of the Federal President ( Section 9 (5) of the Federal Presidency Act ). Law or statutes can also provide that certain public officials by virtue of their office automatically have to perform functions in committees or organs of other authorities or organizations without having to be specially elected or appointed for this purpose. They are referred to there as "born members". For example, the Lord Mayor of Cologne is ex officio a member of its active corps according to the statutes of the Rote Funken . Born mandates or memberships are also common in the non-political area; The reason is often to exert influence through voting rights. For this reason, for example, the chairman of the administrative board of a savings bank has to be a member of the representation of the local authority under the savings bank laws customary in Germany .

Official investigation in administration and justice

In German law, the application principle generally applies, according to which authorities only take action when someone makes an application. However, this principle is often broken when law or case law requires ex officio intervention . In this case, the authorities must not wait for the parties to submit their case, but have to conduct extensive research of their own in order to fully determine a specific issue. In doing so, they are not bound by the submissions or requests for evidence of the parties involved. It is characteristic of the procedures that are subject to the principle of official investigation that an authority must obtain the necessary facts on its own initiative. The principle of official investigation is provided in particular in the rules of procedure in the following areas:

Civil procedural law

The law of civil procedure is dominated by the principle of production , according to which the parties are obliged to explain the facts and to provide any evidence. Nevertheless, the principle of official investigation is not entirely unknown to civil procedure law. If the public interest in the subject of the dispute requires a comprehensive clarification of the facts, for example in marriage, child and care matters, the principle of official investigation takes the place of the principle of negotiation or presentation.

Courts only act ex officio in civil proceedings in exceptional cases. After § 56 Abs. 1 ZPO the court has a lack of party capacity , the process capability , the legitimacy to be considered a legal representative and the necessary authorization to litigation of its own motion. If the judge needs the support of an expert due to lack of his own expertise ( Section 144 ZPO), the court can also obtain expert evidence ex officio. Even without a request from one of the parties and regardless of the burden of proof, if the outcome of the negotiations and any evidence is insufficient to substantiate its conviction of the truth or falsehood of a fact to be established, the court may question one or both parties " ex officio ”( § 449 ZPO). Without an application and thus ex officio ( Section 448 ZPO), the court can hear a party at its dutiful discretion, regardless of the burden of proof, if the contested allegation has almost been proven and the party hearing is only intended to remove last doubts.

Register right

In register law, it is provided for commercial , association , partnership , property registers and land registers that the registration courts must conduct their own official investigations in addition to the application principle in order to ensure the correctness of the register entries . In Section 26 of the FamFG, the registration courts are required to check registration applications for their formal and material accuracy and, if necessary, to carry out their own investigations through official investigations. Your own research is required if the registry court, when examining an application to be entered, comes to the conclusion that the application does not correspond to the facts . In particular, the court has to commence the necessary investigations ex officio and in this context can register a company deletion e.g. B. send the tax office to comment on whether the liquidation balance sheet has been submitted and the tax assessment has been completed. In the land register law there is an official need to correct the land register in accordance with § 82a GBO , official deletions must be carried out according to § 84 GBO. If the easement on a condominium unit encumbering the property expires due to the foreclosure auction , it expires on the entire property and is to be officially deleted on the other units as inadmissible in terms of content within the meaning of Section 53 (1) sentence 2 GBO.

Administrative law

The principle of official investigation also applies in many areas of administrative law. In the administrative procedure, the authorities are obliged to investigate facts ex officio (principle of investigation; § 24 VwVfG). The investigation principle is of decisive importance for the entire administrative procedure, according to which all facts relevant to the individual case are to be ascertained on the authority's own responsibility. Even if the activity of an authority depends on an application, the further procedure is based on the principle of official investigation, which requires the authorities to independently determine all circumstances that are significant for the decision on the application. If authorities do not or not fully comply with this investigation obligation , this failure to conduct necessary investigations constitutes a breach of official duty .

This also applies in the area of administrative jurisdiction , where research into the facts ex officio is not bound to the submissions or the requests for evidence of the parties involved ( Section 86 VwGO). In this case, documents are officially forwarded to the parties involved ( Section 86 (4) VwGO).

Criminal law

In criminal law, the application principle only applies in exceptional cases to minor cases that require a criminal complaint by the injured or injured party ( complaint offenses ). If no criminal complaint is filed, there will be no preliminary investigation , unless the special public interest in intervening ex officio is affirmed (which is possible for some, but not all, offenses). The criminal complaint is a prerequisite for criminal prosecution in the case of a complaint. However, this does not apply to most other offenses. Official offenses are all other criminal offenses which have to be officially prosecuted without regard to the will of the injured party. In criminal justice , the responsible investigative body is obliged to investigate and prosecute official crimes ex officio and without the need for a criminal complaint from the injured or injured party ( Section 152 (2) of the Code of Criminal Procedure). According to the principle of official investigation, the taking of evidence is to be extended ex officio to all facts and evidence that are relevant to the decision in order to investigate the truth. Since the state acts repressively through the criminal judgment, it is responsible for objectively researching the facts themselves; he cannot leave it to the "parties" - the public prosecutor's office and the defense - to collect incriminating and exonerating matters ( Section 244 (2) StPO).

Prosecution is therefore a state responsibility. The official maxim demands that criminal offenses must be prosecuted ex officio. In the case of prosecution, the public prosecutor must ex officio retain the authority to decide on the course and conclusion of the investigation. Therefore she is referred to as the " mistress of the preliminary investigation ". A "withdrawal of the notification" does not end the procedure, but it can lead to its discontinuation . If, in the cases provided for by law (e.g. § 232 , § 248a , § 303c StGB ) the public prosecutor's office replaces the missing criminal complaint by affirming the special public interest , then this cannot be challenged in court because the accused is not in his / her decision Rights are violated.

In criminal proceedings, the legally admissible evidence must be carefully investigated ex officio without being bound by the parties' requests for evidence. In practice, the police are usually the first to deal with a crime. The so-called first access ( Section 163 StPO) has the greatest chance of clearing up an act. The scope of the investigation also depends on the importance of the matter (No. 4-6 RiStBV). In the main proceedings, the judge ex officio re-investigates the accused on all sides independently, without relying on the results of the investigation by the police and the public prosecutor's office or on the evidence requested by the defense. The criminal judge hears the witnesses himself again, inspects the crime scene and checks the original documents himself or hires experts. Because no innocent person may be convicted, the judge is obliged to clarify the matter as best as possible. The appeal hearing, which is permitted in many cases , may lead to a renewed taking of evidence before the court of appeal.

According to the principle of official investigation, criminal courts and prosecution authorities in continental European criminal law are obliged to introduce all known facts that serve to establish the truth "ex officio" into the proceedings and, if necessary, to conduct their own investigations. Similar regulations exist in the countries of the Romance legal system , where the investigative court acts ex officio.

Tax law

The central norm for the official investigation in tax matters is § 88 AO, which makes it clear that the tax authority is not bound by the submissions of those involved. The favorable circumstances for those involved - such as in criminal proceedings - must also be taken into account. The tax authority uses the evidence finally listed in § 92 AO. A typical case of the official tax investigation is the tax investigation ( § 76 Abs. 1 FGO ). The tax court also investigates the facts ex officio, has to consult the parties involved and to take into account the entire process material completely and properly ( Section 96 (1) FGO).

Other official investigations

If the vehicle tax has not been paid, the registration authority must, at the request of the authority responsible for the administration of the vehicle tax, withdraw the vehicle registration document, correct any trailer lists that have been issued and cancel the registration number (de-registration ex officio; § 14 KraftStG ).

The principle of official investigation ( Section 20 SGB ​​X ) also applies to administrative proceedings under social law . In the case of most social benefits, however, the authority first has to act upon an application; however, benefits in the statutory accident insurance are to be provided ex officio, unless the provisions for the individual insurance branches indicate otherwise ( Section 19 SGB ​​IV ).

The InsO also contains an official investigation principle in Section 5 (1) of the InsO , according to which the debtor's assets are to be determined ex officio by the insolvency court . The insolvency court takes on the task of determining the largest possible bankruptcy estate in the interest of the creditors - regardless of the insolvency administrator employed .

Austria

The principle of authority , also known as the official principle, comprises two fundamental aspects:

  • Basically, every suspicion of a criminal offense that the criminal police or the public prosecutor's office becomes aware of must be investigated ex officio (duty of prosecution, principle of legality). As a result, once a report has been made, it can no longer be withdrawn. A limitation of this principle are the authorizing offenses , in which the public prosecutor's office may only start prosecution with the authorization of the victim. There is also an exception to the principle of public prosecution in the form of private prosecution , in which the victim himself has to bring charges. Prosecution in the context of a subsidiar charge is also an exception to the official principle, since a private participant maintains the prosecution set by the public prosecutor as a subsidy accuser.
  • In the main proceedings, the court has to investigate the offense on which the indictment is based and the defendant's guilt ex officio.

Switzerland

The term is well known in Switzerland . For example, it is regulated that the Swiss Federal Criminal Court informs the public of its case law (Art. 63 Para. 1 StBOG) ex officio through regular publication on the Internet (Art. 3 Clause 1 of the Federal Criminal Court's regulations on the principles of information). The principle of the application of the law “ex officio” obliges the judge to apply to the established facts that legal sentence which he considers to be the correct one and to give him the interpretation of which he is convinced. According to Art. 12 VwVG, an authority establishes the facts ex officio.

Individual evidence

  1. ↑ Michael Lang, Josef Schuch, Claus Staringer: Introduction to Tax Law: Tax Law I + II . Facultas.wuv, 2009, ISBN 978-3-7089-0517-4 ( google.com [accessed May 5, 2016]).
  2. ↑ Public authority. In: Austrian dictionary. Retrieved May 5, 2016 .
  3. ^ Regimental roll call in the Maritime: Henriette Reker becomes the first Red Funkin in Cologne. In: Kölner Stadt-Anzeiger , January 16, 2016, accessed on January 27, 2020.
  4. ↑ BGH NJW 1994, 320
  5. ↑ OLG Frankfurt, Rpfleger 1979, 149
  6. ↑ a b Ralph-Michael Polomski, The automated administrative act , 1993, p. 112 f.
  7. ↑ BVerfG NJW 2003, 2444
  8. ↑ unlike in the Anglo-Saxon legal system , in which the criminal proceedings are also essentially considered to be party proceedings and the parties generally have to obtain all evidence themselves
  9. ↑ BGE 110 V 48 p. 53 f.