Injunction

In civil proceedings, the injunction is a performance suit through which the plaintiff wants to avert a current or future impairment of his rights and the court orders the defendant to refrain from certain impairing acts by means of a court judgment .

General

The action for injunctive relief is based on an injunction , on the basis of which the person entitled is entitled to the legally granted right of injunction.

The action for an injunction is submitted to the locally ( § 12 ZPO ) and factually competent court. The factual jurisdiction of the court depends on the area of law (injunctive relief from civil law or public law ), the amount in dispute ( § 23 GVG , § 71 GVG) is only relevant in civil law.

The injunction action requires a current or future impairment of rights, while the obligation to pay damages compensates for violations of the law that have already occurred ( Section 249 BGB ).

In January 1905, the Reichsgericht (RG) recognized a “general injunction” against the threat of illegal interference in absolute rights and other legal positions.

Areas of law

As areas of law for injunctive relief civil law and public law injunction claims come into question.

civil right

The claims for injunctive relief in civil law are diverse. The main cases are the impairment of property ( actio negatoria , § 1004 BGB), possession disturbance ( § 862 BGB) or the violation of the right to personal honor or the right to a name ( § 12 BGB), but also interests of consumer protection or commercial legal protection . In the case of ineffective general terms and conditions, the Injunctive Action Act grants the consumer protection associations in particular special injunctive relief and revocation claims by way of collective action.

An example of the procedure comes from tenancy law , which prohibits the tenant from using the rental property in violation of the contract. For example, the lessee is not entitled to let a third party use the rental property without the lessor's permission ( Section 540 (1) BGB). If the tenant continues to use the rented property in violation of the contract despite a warning from the landlord, the landlord can sue for an omission ( Section 541 BGB). The law therefore grants the landlord an injunction, which becomes justiciable after a warning has been issued. The basis of the claim arises from § 541 BGB, whereas § 1004 BGB applies to most injunctive relief claims .

The warning usually precedes an action for an injunction even where the law does not require it. However, this can also be used improperly to intimidate the opponent, although in truth there is no claim for an injunction or is not enforceable, known in US procedural law under the acronym SLAPP .

As a rule, an infringement of the law must have already occurred before an action for an injunction can be brought and there must be a threat of repetition ( interest in legal protection ). A so-called preventive injunction action can only be brought under very strict conditions if there has not yet been a violation of the law, i.e. this is the first time. The admissibility of such a preventive injunction requires a qualified interest in legal protection, which is usually only given if the plaintiff cannot be expected to wait for the event to be prevented to occur.

Anyone who is violated in their rights by someone else using a company name without authorization can demand that the company cease to use the company in accordance with Section 37 (2) HGB .

Public law

The public law injunctive relief does not have an independent legal basis , but arises from the fact that a sovereign carries out a public law disruptive act through an administrative act or other administrative action. In public law, claims are therefore mostly based on an analogous application of civil law norms . The right to cease and desist is directed at repetitive sovereign interventions or the defense against threatened interventions. Use cases are, for example, immissions from public facilities such as the ringing of bells at night or at the playground .

He can also focus on the defense or the omission of sovereign statements or simple administrative actions, such as the publication of a list of all wines contaminated with diethylene glycol ("glycol") in Germany stating the respective bottlers or public funding of projects against the " Osho movement ” .

Court ruling

In the application for an injunction, pursuant to Section 253, Paragraph 2, No. 2 of the Code of Civil Procedure, in addition to the designation of the parties and the court, the action for an injunction must above all contain a specific indication of the subject of the dispute and the reason for the claim as well as a specific application. The complaint must be for the failure to perform a certain type of disturbance, for example making noise of more than 35 dB (A) during the night ; The house ban is also aimed at omission. The court has the option of dismissing an action for injunctive relief or of convicting the interfering party for omission. The rejection of the complaint means that the previous behavior of the interferer may continue. The judicial injunction order , on the other hand, amounts to a prohibition . The interferer is legally prohibited from continuing to carry out the actions precisely described in the judgment. In the event of disregard, the court threatens, in accordance with Section 890 (1) of the ZPO, a fine at the request of the obligee for each violation and, in the event that this cannot be recovered, orderly detention for up to six months. The individual fine may not exceed the amount of 250,000 euros, the amount of regular detention may not exceed two years.

International

In Switzerland and Austria , injunctions can be based on the same impairments as in Germany. In Switzerland, the injunction is intended as a provisional legal protection measure and is particularly useful if the person concerned is threatened by a violation of personal rights (Section 28 (1) (1) ZGB ). Actions for injunctive relief must be aimed at the prohibition of precisely defined behavior.

The action for injunctive relief is not regulated separately in the Austrian Code of Civil Procedure , but is understood as a substantively and legally justified form of legal protection (no-fault injunction) with which further or imminent legal violations are to be averted. If property ownership is impaired in Austria, for example due to violations of the obligation to be considerate in accordance with Section 364 of the Austrian Civil Code , this gives rise to claims that the property owner can assert against the interferer. In the event of a repetition risk or an ongoing current risk, the property owner has a claim for injunctive relief that can be asserted through a preventive injunction. According to the Supreme Court (OGH), there is a risk of repetition if a situation continues that does not offer any safeguards against further legal violations. In addition, there is a risk of repetition if the defendant who is obliged to cease and desist does not see his injustice.

In common law , there is also the injunction ( English injunction ), in which between actions in preventive legal protection ( English interlucatory injunction ) (and actions for compliance with the obligations to omit English prohibitory injunction is) to distinguish. In the event of a future breach of contract , an action for an injunction is already possible.