Legal appeal

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Information on legal remedies (in the broader sense) is in German usage the instruction as to whether and how an official or judicial decision can be attacked by a legal remedy .

In Germany, a distinction must be made between the instructions on legal remedies , which deal with the possibility of contesting a decision by means of an appeal , i. H. a special legal remedy with devolutive and suspensive effect. In contrast to the instructions on legal remedies, the instructions on legal remedies (then in the narrower sense) are also called legal remedies in the broader sense, which concern legal remedies other than legal remedies.

In Austria only the term legal remedies exists , which is used instead of the federal German term legal remedies (in the broader sense), which is unknown in Austria .

Germany

Administrative law

A proper instruction on legal remedies contains according to ( § 37 Abs. 6 VwVfG )

  • the type of legal remedy or other legal remedy permitted ,
  • the authority or court to which the legal remedy is to be lodged and its seat,
  • the period within which the legal remedy is to be lodged and, if necessary, justified (according to Section 70 VwGO, one month after notification of the administrative act) and
  • any formal requirements to be complied with when filing or justifying (e.g. signature of a written justification by a lawyer ).

If the information on legal remedies is incorrect or is even missing completely, a period of one year applies to the filing of legal remedies in accordance with Section 58 (2) VwGO. The same applies according to § 66 SGG for the social court procedure and according to § 356 AO in the appeal proceedings before the tax authorities.

Also in the administrative area there are no generally applicable regulations on the obligation to provide legal remedies. Federal authorities are obliged to add instructions on legal remedies to the written administrative act ( Section 37 (6 ) VwVfG ). All notice of objection (regardless of whether issued by federal or state authorities) must be accompanied by information on legal remedies ( Section 73 (3) VwGO). In the area of ​​state administration, substantive law sometimes requires the addition of instructions on legal remedies (e.g. social law, § 36 SGB ​​X ). In the state area there is otherwise, unless this is expressly stipulated by law, there is no general obligation to give instructions on legal remedies.

In proceedings before the administrative courts, there is a general duty to provide information ( Section 117 (2) No. 6 VwGO).

civil right

In civil law, the law introducing information on legal remedies in civil proceedings and changing other regulations introduced a comprehensive obligation to provide information with effect from January 1, 2014.

According to the then new § 232 ZPO there is for "every judicially contestable decision"

  1. a fundamental duty to instruct in proceedings without the obligation to use a lawyer (Section 232 sentence 1 ZPO),
  2. In principle, there is no obligation to provide information in proceedings where a lawyer is required (Section 232 Sentence 2 Clause 1 ZPO)
- except in special procedural situations (Section 232 sentence 2 clause 2 ZPO).

Judicially contestable decisions within the meaning of Section 232 ZPO are decisions against which an appeal, objection, objection or reminder are permitted:

  • Legal remedies : appeal (§ 511 ZPO), revision (§ 542 ZPO), immediate complaint (§§ 567, 793 ZPO) and legal complaint (§ 574 ZPO) - against judgments and decisions. An exception to this is the step revision according to Section 232 Sentence 3 ZPO (Section 566 ZPO);
  • Objection : against a default judgment (§ 339 ZPO) or against an enforcement order (§ 699 ZPO);
  • Objection : (against an arrest issued by resolution (arrest order) (§§ 924, 926 ZPO) or a temporary injunction);
  • Reminder : (the reminder against the decision of the Rechtspfleger according to § 11 RPflG; whether the enforcement reminder according to § 766 ZPO is also in dispute).

No legal remedies within the meaning of Section 232 ZPO are:

  • Requests for correction or amendment (§§ 319, 321 ZPO),
  • Applications for enforcement protection (§ 765 a ZPO),
  • Requests for an order to bring an action (§ 926 ZPO) that
  • enforcement actions according to §§ 731, 767, 771, 805 ZPO or
  • the hearing complaint according to § 321a ZPO.

Missing or incorrect information on legal remedies does not render a decision ineffective and does not change the deadline for legal remedies. If the deadline is missed, however, reinstatement in the previous status can be granted. Its success assumes, among other things, that the error was causal for the missed deadline. This is presumed according to § 233 sentence 2 ZPO. However, if a party is represented by a lawyer, something else applies according to case law: the lawyer is required to review instructions on legal remedies.

If a decision does not contain an admission of the appeal on a point of law , admission is also not given by an attached, signed instruction on legal remedies if - as is usually the case - it is only a declaration of knowledge and does not indicate the will to be admitted.

Employment Law

In labor court proceedings , according to Section 9 (5) sentence 1 ArbGG, there is an obligation to provide “all decisions that can be challenged with a limited legal remedy” with instructions on legal remedies. If there is no legal remedy against the decision, then according to Section 9 (5) sentence 2 ArbGG you must also be instructed about this.

Section 9 (5) ArbGG only covers legal remedies in a technical sense, not other legal remedies. According to § 59 sentence 3 ArbGG, there is an obligation to provide information on legal remedies in the event of a default judgment.

To instruct is thus on the appointment ( ff §§ 64th ArbGG), revision ( §§ 72 et seq. (ArbGG), the revision complaint 77 § m ArbGG i. V. §§ 574 et seq. ZPO ), an immediate appeal ( § 78 Abs. 1 ArbGG in conjunction with § 577 ZPO), the complaint according to § 87 ArbGG, the legal complaint ( §§ 92 ff. ArbGG).

According to the - controversial - opinion of the BAG , there is no need to be instructed about the possibility of a non-admission complaint in accordance with § 72a , § 92a ArbGG.

Instructions on legal remedies are only effective if they are signed by the responsible judges. In the LAG , these are also the honorary judges, in the ArbG only the professional judges ( Section 60 (4) sentence 1 ArbGG).

The instructions on legal remedies must meet content-related requirements ( Section 9 (5) sentence 3 ArbGG), otherwise it is ineffective. Verified forms are generally used in court practice.

The normal period of appeal only begins when the parties receive effective instructions on legal remedies ( Section 9 (5) sentence 3 ArbGG). Without effective instructions on legal remedies, an extended legal remedy period of one year from delivery of the decision applies ( Section 9 (5) sentence 4 ArbGG), unless the filing within the one-year period was not possible due to force majeure or the legal remedy instructions (incorrectly) contained, that no legal remedy will be given ( Section 9 (5) sentence 4 penultimate ms. ArbGG).

If in the instructions on legal remedies the possibility of filing an appeal contrary to the objective legal situation is declared, this does not lead to the admissibility of an objectively incorrect legal remedy. The jurisprudence does not see a tacit admission of a legal remedy in wrong information on legal remedies.

If a decision is not served at all, Section 66 (1) and Section 74 (1) ArbGG supersede Section 9 (5) sentence 4 ArbGG.

If a decision is made incorrectly by its nature (example: a default judgment is issued although a final judgment should have been issued), the principle of most favored nation treatment applies : the party can choose whether to appeal against the correct decision or against the actual decision (in the example: right to choose between objection or appeal).

The correction of a decision with incorrect information on legal remedies is made by means of a correction resolution against which the complaint is permissible ( Section 78 (1) ArbGG in conjunction with Sections 567 ff. ZPO). Notification of the correction decision alone is insufficient. The entire decision must be delivered again.

Family law

In family matters and in matters of voluntary jurisdiction, according to § 39 FamFG, every resolution must be provided with information on legal remedies.

This must specify the legal remedy, objection, objection or reminder as well as the form and deadline and the court with its registered office at which the legal remedy is to be lodged.

According to Bundestag printed paper 16/6308, the legal idea behind this was:

The instruction on legal remedies is, although so far only provided in individual areas of the FG proceedings, an expression of the legal welfare character of these proceedings. In accordance with this legal idea, the parties involved in all FamFG proceedings must therefore be instructed about legal remedies or other ordinary legal remedies.

According to this, a party involved should be able to lodge the envisaged legal remedy without consulting a lawyer:

On the other hand, the provision regulates the necessary content of the information on legal remedies. With the designation of the court at which the legal remedy is to be lodged, its seat as well as the form and deadline to be observed, it must contain all the essential information that enables the parties involved to lodge the permissible legal remedy against the decision made without the assistance of a lawyer .

If such is not included, this may result in reinstatement in the previous state via the legal presumption of culpable failure to meet the deadline for complaints ( Section 17 (2) FamFG).

Criminal law

In criminal law, the relevant legal remedy must be provided with the pronouncement of the judgment, even before the reasons for the judgment are drawn up in writing ( Section 35a of the Code of Criminal Procedure ).

Austria - Administrative Law

Every decision from an Austrian administrative authority (but not also a decision from an Austrian court!) Must contain instructions on legal remedies (RMB).

Basics

The instructions on legal remedies must state:

  • Whether the decision can be challenged or not,
    • if so:
      • with which authority and
      • within which period the appeal must be filed,
      • that the contested decision must be specified therein and
      • that the appeal is a specific request as well
      • must contain a reason for this request.

If the decision can no longer be challenged because it was issued by the administrative authority of last resort, the RMB must point out that complaints to the

can be introduced. It must also be pointed out

  • the fact that such complaints must be signed by a lawyer
  • the fees to be paid for such complaints.

Flawed

When the legal remedies

  • missing at all,
  • misleadingly states that no legal remedy is admissible,
  • specifies no deadline or a shorter deadline for filing an appeal than provided by law,

the legal remedy is considered to be filed in good time if it was filed within the statutory period. (The statutory deadline is usually two weeks from delivery or verbal announcement; however, there are - few and therefore largely negligible - exceptions, for example in the procedure for entering the electoral roll.)

If the RMB specifies a longer deadline (than the legally stipulated), the appeal is deemed to have been filed in good time even if this longer deadline has been used.

If the RMB does not state the authority with which the appeal is to be lodged, or if a wrong authority is specified as the filing agency, then the appeal is correctly filed if it

  • is submitted to the authority that issued the decision,
  • or is brought to the wrongly specified authority.

The Austrian administrative law has no regulation comparable to German law, according to which the period of appeal is one year if the RMB is missing or incorrect.

However, the authority must approve the reinstatement in the previous status if the period for appeal was missed because of the decision

  • contains no RMB at all,
  • does not contain a period of appeal or
  • contains the false statement that no legal remedy is admissible.

See also

Individual evidence

  1. ^ So Creifelds: Legal dictionary. 20th edition. Beck, Munich 2011: Instructions on legal remedies
  2. ↑ Huber, JuS 2014, 972 (974)
  3. ↑ BGH, decision of March 13, 2014 - IX ZB 48/13 - NJW-RR 2014, 639
  4. ↑ See Germelmann / Prütting: ArbGG , 8th edition. 2013, § 9 Rn. 25th
  5. ↑ Details from Germelmann / Prütting: ArbGG , 8th edition. 2013, § 9 Rn. 37-45
  6. ↑ Germelmann / Prütting: ArbGG , 8th edition. 2013, § 9 Rn. 58-58b with further references to the dispute
  7. ↑ Germelmann / Prütting: ArbGG , 8th edition. 2013, § 9 Rn. 59-61
  8. ↑ Bundestag printed paper 16/6308 p. 196 (PDF; 8.9 MB)