The term legal remedy in Germany is the contestation of a court decision . The legal remedy is to be distinguished from the generic term legal remedy , which generally describes the challenge of a state, i.e. also an official decision. Therefore, legal remedies can also be defined as legal remedies against judicial decisions. In contrast to this, in Austria and Switzerland the term legal remedy is used for every challenge to a (judicial or administrative) decision. In state liability law , in addition to appeal, revision and complaint against court decisions, there are also all other legal remedies against an official act that are suitable for warding off the official act in question and with it damage. This also includes reminder , counter-presentation , objection to an administrative act and administrative complaint .
Suspensive and devolving effect
The suspensive effect (from the Latin suspendere "to float") has the effect that the decision does not take effect before the appeal has been finally decided. If an appeal is effectively filed, the judgment will therefore initially not become final .The devolutive effect (from the Latin devolvere “rolling around”) has the consequence that the matter is raised to a higher authority for decision (compare iudex ad quem ). In the case of a court decision, this means that a higher-ranking court decides in the instance (e.g. regional court instead of district court ). Despite the suspensive effect, other disadvantageous side effects cannot be ruled out, such as interruptions to the deadline in the register of suitability to drive , the so-called traffic offenders register of the Federal Motor Transport Authority (KBA).
The decision of the appellate court can be purely cash or reformatory.
Appeal in civil proceedings
Since the legal remedies are a formalized challenge, they are limited in number. In German civil proceedings , for example, there are only legal remedies of appeal , revision and immediate complaint (which, however, according to (1) of the Code of Civil Procedure (ZPO) only has a suspensive effect in the cases specified there). Examples of legal remedies in civil proceedings are:
Effects of legal remedies in civil procedural law
An appeal, revision, step revision, action for annulment, action for restitution or restitution to the previous status is followed by a renewed or continued oral hearing. The court (possibly the next higher court) decides on a complaint, immediate complaint or rejection during the oral hearing (inadmissible or delaying proceedings ) or in the event of an interruption of the hearing in the written procedure. After the legal process has been exhausted, a constitutional complaint can generally be submitted. In the absence of a suspensive effect, however, the constitutional complaint only has the character of a final and subsidiary legal remedy to prevent or compensate for a violation of fundamental rights.
Procedural acts in civil proceedings
- Reinstatement in the previous state ZPO (corresponds to the hearing complaint or reinstatement in criminal law)
- Rejection of a judge according to ZPO
Appeal in criminal proceedings
- Appeal according to StPO
- Appeal and simultaneous reinstatement in the previous status according to StPO (e.g. in the case of a judgment in absentia)
- Revision according to or step revision according to StPO
- Complaint according to StPO
- further complaint according to StPO
- Immediate complaint according to StPO
- Making up for the right to be heard in connection with a complaint according to StPO
In criminal proceedings , the incorrect designation of a legal remedy is harmless ( StPO).
A waiver of legal remedies is possible ( agreement according to StPO. A waiver of legal remedies is then inadmissible ( (1) sentence 2 StPO). Revocation (withdrawal) or contestation of a waiver of legal remedies is not permitted (exception: misleading). If all legal remedies are waived, a judgment becomes legally binding immediately. The accused should not be induced to waive the right to appeal following the announcement of the judgment by the chairman (No. 142 (2) sentence 1 RiStBV).StPO), unless the judgment was preceded by an
Instructions on legal remedies are required in criminal proceedings ( StPO).
The general opinion is that the filing of a colorless or indefinite legal remedy is permissible. This is the term used to describe a legal remedy against a judgment of the local court that can be challenged both with appeal and with revision (cf. StPO), without a determination of one of the two options in the filing of the appeal. The appellant can still decide whether the appeal should be an appeal after all until the end of the time limit for the reasons for the appeal. If the colorless appeal is retained, it will be treated as an appeal. The same applies if the revision filing were time-limited. The colorless filing of the appeal can make sense, since within the only one-week filing period the written grounds for the judgment and the minutes of the meeting are usually not yet available and thus cannot (yet) be assessed, appeal or revision are more useful.
Effect of legal remedies in criminal proceedings
A new or continued oral hearing follows an appeal, revision, leap revision or the right to be heard. The court (or the next higher court, if applicable) decides on a complaint, immediate complaint, further complaint or rejection during the oral hearing (inadmissible or delaying the proceedings) or outside the main hearing by way of a decision.
Procedural acts in criminal proceedings (excerpt)
In particular, the following procedural acts are provided for in criminal procedural law :
- hearing according to StPO or according to StPO
- Complaint according to StPO
- Rejection of a judge according to StPO
- Objection to a penalty order according to StPO
- Reinstatement in the previous state StPO
- Resumption of the procedure according to StPO
Prohibition of deterioration
If an appeal is lodged, this usually results in a restriction of the higher instance with regard to the amendment of the decision (→ reformatio in peius ). This means that the higher instance may not tighten the judgment if only the defendant has appealed or appealed.
Deadline for appeal
Since the filing of an appeal prevents the entry into legal force, it is only permissible within a certain period. The reason for this is the desired occurrence of legal peace and legal certainty . If the deadline is missed through no fault, a reinstatement in the previous status is often possible . This means that the proceedings are brought into the state (e.g. before the default judgment ) so that the accused can still be granted a fair hearing .
Deadlines for appeal in criminal law
- simple complaint StPO - usually one week after the announcement of the decision
- further complaint StPO - no deadline
- Immediate complaint StPO - one week after notification of the decision
- Complaint to catch up on the legal hearing StPO - 14 days after knowledge
Comparison with the Austrian Code of Civil Procedure
According to the Austrian Code of Civil Procedure (ÖZPO), legal remedies are divided into legal remedies in the narrower sense and legal remedies :
In principle, legal remedies are all motions by a party to review a decision, unless the party has been completely successful.
Legal remedies are all other applications made in civil proceedings for the amendment or annulment of a legal consequence of a decision ( judgment or resolution ) by a further decision. Legal remedies are, for example: objection to a conditional payment order , legal remedies, objection to a default judgment, application for reinstatement in the previous status , application in the existing procedure, application in the bill of exchange procedure (bill of exchange payment order ).
Legal remedies are also divided into:
- ordinary - extraordinary legal remedies,
- Ascending (devolutive) - remonstrative remedies that remain in the same instance,
- Suspensive - non-suspensive legal remedies,
- unilateral - bilateral appeal,
- full - limited remedies,
- revoking - amending legal remedies,
- independent - reserved legal remedies,
- immediately admissible - legal remedies to be registered.
Comparison with the Swiss administrative process
Here, legal remedies are also constitutional remedies for citizens against potentially illegal administrative acts. With an objection and a complaint , the administration (in the latter case a superior authority) can be stopped to review the administrative act. Thereafter, it is possible to move on to the administrative court .
Economic analysis of the appeal
The economic analysis of law also deals with legal remedies and the (mostly three-stage) path of authority. One can distinguish between two different approaches.
On the one hand, it is argued on the assumption that the plaintiff (injured party) knows with certainty that he is right. Only the court does not know this and makes wrong decisions. The legal remedies and the courts then only have the task of correcting wrong decisions by the lower courts.
On the other hand, it is assumed that the plaintiff (injured party) does not know with certainty whether he is right and whether he is right (incompletely regulated situation, difficult evidence, unclear legal situation, etc.). With the help of a probabilistic approach, one can then estimate the litigation risks and show how the plaintiff and defendant behave or should behave in the course of an appeal, and what consequences this behavior has. The decision calculation leads to expected values that can be compared with the corresponding empirical data and thus analyze the actual complaint behavior.
In the economic analysis of the legal remedies, in addition to the prospects of success, the costs incurred when taking the judicial process (court fees, lawyers' fees, etc.) must be taken into account. There are two principles for charging these costs to the parties, the American rule and the English rule . According to the American rule, each party bears its own costs. This rule applies in the United States. According to the english rule, the loser bears the costs. According to German (European) law, the English rule applies in the form of what is known as liability . This means that the unsuccessful party bears all costs of the proceedings. The economic analysis of the legal remedies determines the corresponding decision calculations and expected values for both principles and thus allows a comparison.
The economic analysis of legal remedies also deals with mediation . The question of whether one should appeal or whether an out-of-court settlement via mediation appears possible must be answered at every point along the way. What is required here is an exact assessment of the litigation risk and the financial, temporal and psychological costs of filing legal remedies in comparison with a possible agreement in a mediation process.
Legal remedies in the EEA
Legal remedies in civil procedure law
- HR Schwarzenbach: Outline of Administrative Law , 1978 (for Switzerland).
- Wolfgang Brandes, Peter Weise : An economic model of legal means . In: German Working Papers in Law and Economics . Volume 2009, Paper 7 (see also the revised version of the process risk analysis of legal remedies: Theory and Empiricism , April 2016).
- BGH NJW 1998, 138
- Meyer-Goßner StPO § 302 Rn. 22nd
- Meyer-Goßner StPO § 302 Rn. 24
- So Steven Shavell: The Appeals Process As A Means Of Error Correction . In: Journal of Legal Studies . Volume 24, 1995, pp. 379-426.
- So Wolfgang Brandes, Peter Weise: An economic model of legal means . In: German Working Papers in Law and Economics . Volume 2009, Article 7.
- See Wolfgang Brandes, Peter Weise: American and English Rule on Appeals . In: German Working Papers in Law and Economics . Volume 2011, Article 1.
- See Wolfgang Brandes, Peter Weise: Mediation and legal remedies: tasks and solutions for the mediator . In: Journal for Conflict Management . 13th year, 2010, issue 1, pp. 11-14.
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