Legal force (Germany)
The legal term res judicata denotes certain legal effects that emanate from a court judgment or order , as well as the conditions under which these effects occur.
The legal force of court decisions serves the legal security and thus the legal peace . The force of law and enforceability are comparable to the force and affect the validity of court decisions and administrative acts .
The effect of the legal force can be translated with the Roman principle "contra rem iudicatam non audietur" as follows: "One is not heard against a decided matter" . The aim of the legal force is thus to make the finality of judicial decisions effective in order to serve legal peace and legal certainty. The opposing legal force therefore leads to inadmissibility in the event of a new similar action or a new similar application . Special case constellations are reserved for the possibility of initiating amendment proceedings.
In principle, only the operative part of the judgment has legal force, i.e. the court decision itself, but not its justification or any factual findings. The tenor and part of the verdict are to be interpreted “in the light” of the reasons, especially in the case of negative judgments.
In Germany, the incontestability of administrative decisions, in contrast to Austria, is referred to as final and must be clearly distinguished from legal force. Although the administrative authority does not decide by means of an administrative act in the case of administrative offenses in the fine proceedings , the administrative authorities do not only have legal force but are not only valid, Section 84 OWiG .
A further distinction is to be made, on the one hand, between formal legal force and material legal force and , on the other hand, between the legal force of litigation and factual judgment .
Formal legal force
Formal legal force means incontestability. Permissible legal remedies prevent the (formal and material) legal force from occurring ( suspensive effect ). The legal remedies include in particular appeal and revision . The formal legal force takes effect when there is no longer an ordinary legal remedy against the decision (cf. § 705 ZPO ). This is the case if those entitled to lodge legal remedies allow the period provided for this to elapse, waive it ( waiver of legal remedies ) or do not intend to do so, in particular if the last instance has decided.
The constitutional complaint is not a legal remedy, but an extraordinary legal remedy . The filing of a constitutional complaint or the possibility to do so does not prevent the entry into formal legal force.
The formal legal force that has arisen can only be canceled retrospectively in exceptional cases. If the deadline for appeal is missed through no fault of one's own, reinstatement in the previous status (§ § 233 ff. ZPO, § § 44 ff. StPO ) can be granted. The proceedings can be resumed under strict conditions (Section 578 ff. ZPO, Section 359 ff. StPO). A final decision can also be overturned in response to a constitutional complaint , Section 95 BVerfGG .
Material legal force
Material legal force means binding effect in terms of content in personal, factual and temporal terms. It presupposes the entry of formal legal force and determines all courts and the parties also in later proceedings on the legally established legal consequence. Among other things, this should prevent contradicting judgments and create legal certainty for the parties. On the other hand, the binding does not extend to third parties who were not involved in the proceedings (cf. § 325 ZPO).
In civil proceedings, it is generally no longer allowed to make the same request (the same subject of dispute or procedural claim) the subject of legal proceedings again ( ne bis in idem ). In addition, in a later process, if the decided question arises as a preliminary question for another claim ( prejudiciality ), the court is bound by the determination. The legal force usually only extends to the claim raised; The reasons for the judgment, however, do not become final (see Section 322 (1) ZPO).
In criminal proceedings, the legal force of the judgment leads to a consumption of criminal charges (ne bis in idem), so that repeated prosecution for the same offense is excluded.
Furthermore, according to the Basic Law (cf. Art. 19 (4) sentence 1 of the Basic Law and the rule of law (above all legal security)) all state organs, in particular administrative authorities, must observe the substantive legal force.
The final force develops similar effects in public law with administrative acts of legal force. The constitutional procedural law also knows binding effect according to. Section 31 BVerfGG. It covers all courts and authorities and thus extends beyond the effects of legal force.
Litigation and factual judgment
Trial judgments are judgments in which the action is rejected as inadmissible. They are capable of formal legal force (for example, if the deadline for filing a complaint has been missed) without ever growing into material legal force: A deficiency in the ability to postulate, for example, can be remedied if the citizen does not return his or her complaint, for which a lawyer is required lodges himself, but still hires a lawyer. The substantive legal force of a trial judgment relates solely to the lack of admissibility due to which the court failed the action.
Factual judgments are judgments in which a decision is made on the admissible action on the merits and thus on the merits of the action. They are capable of formal and material legal force. The above applies.
Partial legal force
A decision can also become legally binding in part. A distinction is made between vertical partial legal force and horizontal partial legal force .
Vertical partial legal force exists if part of the material in the process, which could also have been the subject of an independent proceeding, becomes legally binding and continues to be litigated because of the remaining material. The vertical partial legal force does not present any particular dogmatic difficulties. The situation is no different than if two different proceedings had been started from the start, one of which is ended by a decision that has become final.
Horizontal partial legal force, on the other hand, describes the case that a stage of a procedure has become legally binding while the rest of the procedure is continued. This is especially the case in criminal proceedings , when a final judgment is only attacked with an appeal in the sentence . Here the guilty verdict becomes legally binding, so that it can no longer be changed by the appellate court, while the sentence still has to be decided.
Breach of legal force
Ultimately, it is possible to breach the legal force in numerous case groups. A breach of the legal force takes place if the individual justice claims priority over legal certainty. This is e.g. B. in an official liability suit according to. § 839 II 1 BGB i. V. m. 339 StGB i. V. m. Art. 34 GG the case. Here, individual justice demands that the concerns of legal security be put aside.
The cases of breach of legal force in German civil procedure law are mainly the following:
- The resumption of proceedings according to §§ 578 ff ZPO or according to. Section 185 FamFG
- The reinstatement in the previous state according to Section 233 ZPO
- The enforcement action according to Section 767 ZPO
- The amendment action according to 323 ZPO or in accordance with Section 238 FamFG
- The claim for damages according to § 826 BGB in the case of creeping judgment
- The hearing complaint according to § 321a ZPO or acc. § 152a VwGO
- The constitutional complaint to the BVerfG or to the state constitutional courts
- The non-binding referral decision for blatant legal infringement and finally
- The official liability suit according to § 839 II 1 BGB i. V. m. 339 StGB i. V. m. Art. 34 GG
- ↑ BVerfGE 2, 380 , 402
- ↑ Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . P. 203.
- ↑ BVerfGE 103, 111 (139); BAG [22. July 2014] - 9 AZR 1066/12 - Rn. 23 = NZA 2014, 19330.
- ↑ BVerfGE 103, 111 (139) with reference to Wolfgang Grunsky : Basics of procedural law , 2nd edition 1974, p. 484 f.
- ↑ Rosenberg / Schwab / Gottwald, 16th edition, § 150 marginal number 1, § 151 marginal number 19
- ↑ Overview in Zimmermann, Commentary on the ZPO, 9th edition 2011, marginal note 1 to § 578 ZPO
- ↑ BAG decision of June 16, 2015, 10 AS 2/15, NJW 2015, 2523