Preclusion

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A preclusion ( Latin for exclusion ) refers to the exclusion of certain legal acts or rights in legal terminology . This can be stipulated in the contract or it can happen if the rights are not exercised within the statutory period . The preclusion is to be distinguished from the statute of limitations .

Procedural law

The preclusion sanctions the failure of a party to present or cooperate in a legal process and restricts noven law . It thus serves to accelerate the process and to improve process economy. Because of a possible violation of the rule of law, concerns are sometimes raised. The problem is the preclusion in the rules of procedure shaped by the principle of official investigation .

A basic distinction is made between material and formal preclusion. Under formal estoppel is understood according to § 87b Code of Administrative Procedure rejecting objections in the current proceedings for failure period with effect only for this procedure. Material preclusion means that the objections due to the failure to meet the deadline will not be heard either in the current or in future proceedings.

The term preclusion is also a purely procedural term and is used e.g. B. used in § 282 , § 296 ZPO . According to Section 282 (1) of the German Code of Civil Procedure (ZPO) , a party in civil proceedings must, in principle, carry out its procedural acts as early as possible with a view to ensuring that the process proceeds quickly; Otherwise , they can be rejected according to § 296 (2) ZPO after free judicial conviction . According to Section 296 (1) ZPO, certain procedural acts (means of attack and defense) that are carried out in violation of the deadline are only permitted according to the free conviction of the judge if they do not delay the process or are sufficiently excused.

Example:

A testator had signed a purchase contract before his death, under which the heir is now sued by the seller for payment of the purchase price. The heir is convinced that the testator still paid during his lifetime, but will only find the proof of payment ( evidence ) in the testator's documents after a certain period of time.

The reason for apology must be made credible upon request ( Section 296 (4) ZPO).

The preclusion does not include the counterclaim . Even a late filing of a counterclaim may not be rejected by the court.

Public law

In public law, rights of objection, e.g. B. Rights of third parties against planning approval decisions are materially excluded. This is the case if those affected by objections do not submit their objections within a period in the official approval process. The legality of the material preclusion was the subject of lawsuits, especially in approval procedures for the construction of nuclear power plants. Examples of preclusions in public law are: Section 10 (3) sentence 5 BImSchG , Section 73 (4) sentence 1 VwVfG or Section 364b of the tax code .

In the judgment of October 15, 2015 in case C-137/14 (European Commission v Federal Republic of Germany), the ECJ ruled that it is inadmissible in proceedings with an EU legal background ( environmental impact assessments , nature impact assessments in accordance with Article 6 of the Habitats Directive , etc.) to limit the court's ability to review to the reasons that were raised as objections in the proceedings up to the expiry of a deadline or up to an oral hearing. Objections can then also be expanded and newly introduced.

literature

  • Martin Haußleiter: Preclusion in family matters. In: NJW -Special. Issue 15, 2011, ISSN  1613-4621 , pp. 452-453.
  • Dieter Kley: The procedural exclusion of factual submissions when contesting a plan approval decision. In: Planning and Plan Control. Developments in building and specialist planning law. Otto Schlichter on his 65th birthday. Published by the members of the 4th Senate of the Federal Administrative Court, Jörg Berkemann , Günter Gaentzsch, Günter Halama, Helga Heeren, Eckart Hien and Hans – Peter Lemmel. Heymann, Cologne et al. 1995, ISBN 3-452-23232-8 , pp. 637-654.
  • Matthias Niedzwicki: Preclusion regulations of public law in the area of ​​tension between acceleration of proceedings, individual justice and the rule of law. For the compatibility of the preclusion with the Basic Law and with European law (= publications on public law. SöR. Vol. 1051). Duncker & Humblot, Berlin 2007, ISBN 978-3-428-12344-5 (also: Bielefeld, University, dissertation, 2006).
  • Kerstin Odendahl , Kerstin Brandt: Preclusion in administrative proceedings. In: New journal for administrative law . Vol. 16, No. 3, 1997, pp. 233-237.
  • Hansjörg Otto: The preclusion. A contribution to procedural law (= writings on procedural law. Vol. 1051). Duncker & Humblot, Berlin 1970 (at the same time: Hamburg, University, dissertation, 1970).
  • European Court of Justice: judgment of 15 October 2015 in case C-137/14 .