Waiver of appeal
A waiver of legal remedies is defined as the declaration by a party involved in the process to waive the lodging of legal remedies or legal remedies against a judicial or administrative decision.
Germany
requirements
In judicial proceedings, the waiver of legal remedies is a procedural act and as such is fundamentally withdrawn from revocation or contestation.
In view of its procedural scope, the waiver must be clearly, unequivocally and unambiguously explained.
In the event of a serious lack of will , the waiver is therefore ineffective, for example if the person concerned has not been adequately instructed about the legal consequences of the waiver.
It must also be ensured that those who consider waiving legal remedies can carefully consider the reasons for and against such a decision and are not clinging to rash and hasty statements.
In a procedure in which the parties involved have to be represented by lawyers ( lawyer process ), for example in matrimonial matters according to 114 FamFG, the declaration to waive legal remedies can only be made by an authorized lawyer.
The admissibility of the waiver of legal remedies is regulated differently in the individual procedural rules. The waiver of legal remedies is generally to be regarded as permissible.
In criminal proceedings , the waiver of legal remedies can be found in Section 302 (1) sentence 1 alt. 1 StPO (as of August 23, 2019). However, a party may only after promulgation give sentences of appeal waiver. In criminal procedure law, a waiver of legal remedies by the defendant or his defense counsel is invalid if the judgment was preceded by an agreement in criminal proceedings ( Section 302 (1) sentence 2 StPO).
Legal consequences
If all those involved declare a waiver of legal remedies, the judgment in question becomes legally binding immediately ; the administrative act issued becomes final .
An appeal lodged despite the declaration of waiver of appeal is inadmissible and must therefore be rejected.
Austria and Switzerland
In Austria and Switzerland, principles comparable to German law apply.
Web links
- Frank d`Alquen, Christian Daxhammer, Hans Kudlich: Effectiveness of a juvenile defendant's waiver of legal remedies immediately following the pronouncement of the verdict? Trial report on the procedure LG Berlin (507) 1 Kap Js 2358/03 Kls (16/04), BGH, decision of March 16, 2005 (5 StR 561/04)
Individual evidence
- ↑ BVerwG, judgment of April 28, 1978 - VII C 50/75
- ^ BGH, decision of September 5, 2006 - VI ZB 65/05
- ↑ BVerfG, decision of January 25, 2008 - 2 BvR 325/06
- ↑ BGH, decision of February 25, 2014 - 1 StR 40/14
- ↑ Detlef Burhoff: Late (re) regret - the no (no longer) wanted waiver of legal remedies to BGH, decision of August 22, 2012 - 1 StR 170/12
- ↑ Sample of a waiver of legal remedies against a notification of subsidy ( memento of the original from December 22, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ^ Decisions of the Supreme Court legal information system of the Federal Chancellery RIS
- ↑ KGE ZS of September 18, 2007 Cantonal Court of Basel-Landschaft in the sense of A. against A. (100 07 627 / LIA)
