Remedy

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A legal remedy is a legally admissible request in a procedure with which an official or court decision may be challenged so that it can be repealed or amended.

In Germany, legal remedy is the generic term for legal remedies . An appeal is a legal remedy with which a higher court can review the contested decision ( devolution effect ), which is associated with the fact that the formal legal force of the contested decision is inhibited ( suspensive effect ).

Based on the Latin appellare "to appeal, to appeal, to turn to another organ", legal remedies are summarized in most legal systems under the term appellation or more specifically regulated.

According to Article 8 of the Universal Declaration of Human Rights , the “right to an effective remedy in the competent national courts against actions which violate the fundamental rights to which he is entitled under the constitution or the law ” is a fundamental human right .

general characteristics

Remedies have different characteristics that also serve to differentiate them, such as:

  • formal or informal
  • Limitations in terms of time or value, authorization requirement or unlimited
  • Submission to the body from which the disputed measure originates ( iudex a quo or exit authority), or to a higher-level body (see iudex ad quem )
  • Decision by the body from which the disputed measure originates or by a higher-level body ( devolving effect )
  • Inhibition of the implementation of the objected measure ( suspensive effect ) or not
  • ordinary or extraordinary (. e.g., re-establishment , reuptake )
  • as a result, properly contestable or fundamentally final.

Individual remedies

Formal remedies

Appeal

The purpose of legal remedies is twofold: on the one hand, they should inhibit the legal force of the decision and, on the other hand, bring the legal dispute to the higher court. The other non-appeal remedies lack at least one of these two effects.

  • Appeal / Appellation: The review of a decision in a further cognitive process, i.e. with the possibility of introducing new evidence in addition to the review for legal errors, → Court of Appeal ; as a reactive remedy that can cross-appeal to be admissible
    • In Austria, new evidence in appeal proceedings can only be asserted in administrative or administrative criminal proceedings, but not in court proceedings
  • Revision : the review of a decision
    • limited to errors of law
    • with or without the auditor's power to make decisions
  • Cassation : The review of a decision for errors of law without the power to make decisions, whereby in some legal systems such as France there is a strict limitation of the scope of the application for cassation ( tantum devolutum, quantum appellatum - [only] transferred as far as contested). Also common in Belgium and Bulgaria. The cassation also describes a decision technique, → cassation decision .
  • Follow -up revision - analogous to follow-up appeal
  • Super revision: revision of the revision
  • Appeal: Collective term for devolutive legal remedies, addressed to another organizational level such as ministry, government or court
    • no longer common in Germany
    • in Austria for legal remedies against court decisions, i.e. depending on the type of decision
      • Further ascending legal remedy against decisions on appeals in Austria (if permissible): revision appeal
    • in Switzerland especially in tax matters
    • in Italy synonymous with appellation

In Switzerland, appeal is the legal remedy with which the ruling (or the decision on objection) of an administrative authority is challenged at the first appellate instance. The first instance of appeal can be an administrative authority (municipal council, cantonal department, in exceptional cases the government) or a court (insurance court, administrative appeals committee). The competent court of appeal is specified in the instructions on legal remedies for an order. The appeal can be used to complain about all deficiencies in a ruling (lack of competence, incorrect determination of facts, illegality, inappropriateness). Formal requirements and deadlines must be observed.

Other formal legal remedies

Informal remedies

Oversight complaints

Other informal legal remedies

  • Counter-presentation : for informal objections of any kind, including those of a non-legal nature, addressed to the deciding body
  • Petition : a petition to offices, courts or political institutions in one's own or third-party affairs that aims to attract attention and exert political influence without fear of being disadvantaged; the petition can also be addressed to bodies that have not made the decision complained about
  • Pardon

Common law

In countries with a common law system , i.e. in which principles established under customary law are the framework and basis for standard setting and court organization and which apply alongside positive law, legal remedies are strongly oriented towards procedures and procedural objectives, as the material decision results dominate other procedures. Appeal procedures should also be mentioned, which are also established under customary law and above all have an appellative character (→ devolution effect ). The appellant aims to ensure that a higher court takes over the case, draws it to itself and - if necessary after the hearing - decides on its behalf:

  • Appeals and petitions as general legal remedies, whereby an appeal is usually addressed to a judicial body and a petition to a political or executive body
  • writ of certiorari - Announcement of a court that it wants to review the case and mostly incidental admission of an appeal
  • procedendo - order to proceed according to the legal opinion of the court, often combined with referral of the case after it has been heard in detail
  • quo warranto (Latin: with what authority?) - Legitimation appeal with the aim of citing the addressee in court in order to demonstrate his active legitimation , also applies to executive bodies
  • mandamus - court order in a qualified or general form to do something, to tolerate or to refrain from doing something, which can be carried out as an ancillary to the main case or in isolation; specific forms are:
    • alternative mandamus - usually an initial order, according to which the addressee either has to maintain a certain behavior (doing, toleration, omission) or alternatively to appear at a court at a certain date and to present reasons against the order
    • peremptory mandamus - definitive order to the addressee as a result of default or after hearing his complaint, it cancels the alternative regulation
    • continuing mandamus - order also to a third party, usually of a security nature, to take certain measures immediately to avoid objective legal violations
  • writ of prohibition - complaint of jurisdiction: aims to prohibit a court from continuing to deal with the case and, if necessary, to assign the case to another for decision
  • writ of habeas corpus - Haftprüfung

Prohibition of deterioration (reformatio in peius)

Based on the idea of ​​a petition, legal remedies should help the petitioner, and he may not fear any disadvantages through their use. This mainly relates to disadvantages beyond the contested decision. In the case of some legal remedies, in particular legal remedies, the disadvantageous amendment of the contested decision is inadmissible and secured with a relative prohibition of reformatio in peius .

Germany

A distinction is made between formal and informal legal remedies. An informal legal remedy is always informal, without notice and free of charge. A formal legal remedy often has to meet additional requirements from the administrative procedural laws of the federal states, in addition to the requirements of the procedural rules in which it is standardized.

Administrative law

Administrative decisions in Germany usually have to be accompanied by instructions on legal remedies that explain the possibilities of appeal. If the information on legal remedies is incorrect or completely absent, this means that the period within which the decision can be challenged does not begin to run; it is replaced by a one-year preclusive period . If the decision indicated that no appeal was possible, there is no time limit and the appeal can be lodged indefinitely.

Austria

In Germany as a term of the term - in Austria only the generally remedy used - Designation appeal for any challenge a decision in court or in administrative and made common.

Decisions by the administrative authorities (not the courts!) Must contain information on legal remedies . The consequences of incorrect or missing legal remedies are differentiated and depend on the respective error.

The general administrative procedure in Austria does not recognize the prohibition of a reformatio in peius : the appeals authority is entitled to change the contested decision in any direction, i.e. possibly to the detriment of the appellant.

The prohibition of the reformatio in peius does, however, apply in administrative criminal law.

Switzerland

A legal remedy can be lodged in Switzerland against acts of the administration, even if no formal order has been issued. It is either a supervisory complaint or a reconsideration for application. In contrast to legal remedies, these instruments, known as legal remedies, are neither bound to a particular form nor to a time limit. The citizen can also submit it to the superior authority of the issuing authority in order to revoke an enacted act or have it changed.

They are to be distinguished from the legal remedies .

Individual evidence

  1. ↑ Article 8 on Wikisource
  2. ↑ gerichte.sg.ch ( Memento of the original dated August 7, 2007 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. @1@ 2Template: Webachiv / IABot / www.gerichte.sg.ch
  3. ↑ up there