No surprise decisions

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The prohibition of “surprise decisions ” is a procedural principle that follows in Europe from the right to a fair trial (Art 6 (1) ECHR ). In Germany it results from the right to a fair hearing anchored in Art. 103 (1) GG . According to the established case law of the Federal Constitutional Court , an inadmissible surprise decision is made if it is based “without prior judicial advice on an aspect that even a conscientious and knowledgeable person involved in the process would not have to reckon with.” This also reflects the protection of legitimate expectations that is immanent in the rule of law . An inadmissible surprise decision can represent a procedural deficiency that can be challenged with appeal and revision or non-admission complaint as well as justify a constitutional complaint after a previous hearing complaint .

Examples

Germany

The inserted decisions are ordered chronologically, not systematically.

“The right to a fair hearing guaranteed in Art. 103 I GG is a consequence of the rule of law for judicial proceedings. The individual should not be the mere object of the proceedings, but should have their say before a decision that affects their rights in order to be able to influence the proceedings and its result. This applies to everyone who is involved in legal proceedings as a party or in a similar position or who is directly legally affected by the proceedings. Since an influence can take place not only through actual submissions, but also through legal implementations, Art. 103 I GG guarantees those involved in the proceedings the right not only to comment on the facts on which the decision is based , but also on the legal situation. This presupposes that the person concerned becomes aware of the facts and the proceedings in which they are to be exploited. In special cases, it may also be necessary to point out to those involved in the proceedings that the court intends to base the decision, so that, when exercising the care required of them, they are able to recognize which aspects may be important for the decision. As a result, it can be tantamount to preventing a presentation on the legal situation if the court, without prior notice, focuses on a legal point of view that even a conscientious and knowledgeable person involved in the process would not have to reckon with, even taking into account the variety of justifiable legal opinions. "

“If a court wants to change a first instance decision and thereby encroaches on the legal status of the beneficiary, the latter must also be given the opportunity to express itself at least once comprehensively on the factual and legal situation, knowing the opinions and applications available to the court. In this case, the scope of the claim to expression corresponds to that of a party in the first instance who has not yet been heard by the court. "

"If the court has (unsuccessfully) submitted a settlement proposal to the parties , it constitutes an inadmissible surprise decision if the claim is dismissed as inconclusive without prior notice ."

If the reporter of a court expressly declares on behalf of his colleagues in the Senate with two detailed reports that the action will be successful, it is a violation of the right to be heard and the requirements of a fair trial if the FG resolves the action after a change by the rapporteur without notice to the plaintiff.

"According to the established case law of the Federal Administrative Court , a surprise decision violating the right to be heard is present if the court uses a legal or factual point of view that has not been discussed up to that point as the basis of its decision and thus gives the legal dispute a turn with which the parties involved follow the previous one The course of the proceedings, even taking into account the diversity of justifiable legal opinions. It is true that the court does not have to inform the parties in advance of its legal opinion or the intended assessment of the subject matter of the proceedings, even in view of the expression that the right to a legal hearing has found in Section 86 (3) VwGO, because the actual and legal assessment results regularly only on the basis of the final consultation . The particular circumstances of a given case, however, may enjoin a different assessment. " " It is a of Art. 103 para. 1 GG offending surprise decision is if the court of appeal without the in accordance with § 139 ZPO required prior notice, in contrast to the judgment of the District Court of the Considers the lecture of one party to be insufficient. "

"According to the case law of the Federal Court of Justice , a party that is victorious in the first instance can rely on receiving a prompt in accordance with § 139 ZPO from the appellate court if it does not want to follow the judgment of the lower court and, in particular, due to its dissenting opinion, an addition to the submission or evidence considers necessary. "

Judicial notification obligations serve to avoid surprise decisions and substantiate the right of the parties to be heard. Legal information must then be given to the parties in their specific situation in such a way that they are actually able to have their say before a decision is made in order to be able to influence the procedure and its result, i.e. they are not prevented from doing theirs in good time To supplement factual presentation .

The OLG Hamm ruled: “An inadmissible surprise decision exists if the court bases its decision on a legal or factual point of view that has not been discussed so far and thus gives the legal dispute a turnaround that even a conscientious participant in the process did not have to reckon with after the course of the proceedings so far. "

"If, in the course of a legal dispute, an amendment to the law comes into effect that takes immediate effect, the principles of fair trial and the duty of care of the court require that the successful first-instance party be informed in good time that it assesses the legal situation differently than the first-instance Dish. This also applies if the opposing party has pointed out concerns about conclusiveness to the party represented by the lawyer, but it is open to the court that the notice was not correctly understood. "

The OLG Celle had pointed out in an order as well as in the oral hearing that there were numerous typical indications of a manipulated accident (like the first court). The appeal would therefore be unfounded. Without further information or a reopening of the oral hearing, the lawsuit was largely upheld. The Federal Court of Justice has decided: “With this procedure, the court of appeal violated the defendant's right to be granted a hearing under Article 103 (1) of the Basic Law. Article 103.1 of the Basic Law grants individuals the right to have their say before a decision that affects their rights in order to be able to influence the procedure and its result. A party involved in the proceedings must in principle take into account all justifiable legal aspects and adjust his presentation accordingly. A guarantee of a legal hearing that satisfies the constitutional requirement, however, presupposes that a party involved in the proceedings can recognize which aspects may be relevant for the decision by exercising the care required of him. If the court issues a legal note on an issue that is relevant to the decision, it may not decide this issue in the judgment in a way that deviates from its expressed legal opinion, without having previously informed the parties to the change of the legal assessment and given them the opportunity to comment. "

Austria

For decades, the Supreme Court in Austria has consistently held the view that the parties to proceedings should not be surprised with a legal opinion that they did not observe and to which they were not made aware. The inserted decisions are a selection, chronological, not systematic, ordered.

"The procedure of the appellate court, criticized as" surprising ", to regard the action brought against the second defendant as inconclusive without having discussed this legal opinion with the parties beforehand, does not justify nullity , but at most the inadequacy of the appeal procedure ."

“The first court will therefore have to discuss the facts with the parties from this legal point of view and make the findings that are missing. The court must not surprise the parties in their decision with a legal opinion that they did not observe and to which they were not made aware by the court. "

“The decisive question for the legal dispute is therefore whether the defendants are protected from the plaintiff as honest owners on the basis of the last will of Berta B in connection with the agreement between them and Hans L according to § 824 last sentence ABGB . In this context, the appeal must first be agreed that the appellate court - if protection of the defendant according to § 824 last sentence ABGB were in question - should not have assumed without discussion that the defendants had become honest owners of the property . In the previous proceedings, this question had not been raised by either the court or any of the parties; However, the appellate court was not allowed to surprise the parties with a completely new legal view and thus deprive them of the opportunity to make statements and offer evidence on the question that was decisive in the view of the appellate court, especially since the findings made show that at least the second defendant understood the content of the will of the Anton B, however, there is no need to supplement the procedure, since the defendants do not benefit from the protection of Section 824, last sentence, ABGB even in the case of honest acquisition of ownership. "

“The appellate court surprised the parties with its legal opinion on the share burden, which it considered to be the only decisive factor, and denied the defendant the opportunity to present facts and legal views that might appear relevant to this new legal point of view. The appellant rightly complains about this deficiency in the appeal procedure. This requires an addition to the procedure "

“The lower courts deviated from the prevailing case law of the Supreme Court, which the plaintiff had evidently based their request on, and came to the rejection of the claim. According to the established case law of the Supreme Court, a court must not surprise the party with a legal opinion which it has not observed and to which it has not been made aware by the court. The first court should therefore, in accordance with the obligation incumbent on it to conduct the substantive litigation (§ 182 ZPO), should have discussed its legal opinion, which deviates from the prevailing case law, with the parties and should have given the plaintiff the opportunity to change the claim or to make a contingent request. "

“The court of appeal also deprived the defendant of the opportunity to assert circumstances that would have excluded any conceivable endangerment of the interests of the seller . The appellate court surprised the parties with a legal assessment of circumstances that were on record, but not asserted from the legal point of view used by the court and that required a discussion with the parties for a final assessment. The omission of this discussion goes against the principle of the rights of the defense in the context of a fair trial . For this reason alone, the contested appeal judgment had to be set aside in place of the extraordinary appeal and the case had to be referred back to the appeal court for a new decision. It must be reserved for him to supplement his procedure, if necessary, in order to remedy the procedural deficiency indicated, or to make a decision that affects the assessment of the effectiveness of the vehicle sale by the GesmbH & Co. KG to its general partner from the point of view of double representation be able to defeat. "

“However, the plaintiffs rightly complain that they were surprised by the legal opinion of the court of appeal. The courts, in particular the appellate courts , must not surprise the parties with a legal opinion which they have not observed and to which they have not been made aware by the court. In Austria, even if there is no express legal regulation, the same applies as that stipulated in Section 278 (3) of the German Code of Civil Procedure. According to this, the court may only base its decision on a legal aspect that a party has clearly overlooked or considered to be insignificant, unless only an ancillary claim is concerned, if there has been an opportunity to comment. It does not matter whether the party or its representative should have recognized this point of view and its relevance. There is therefore no need to deal with the question of whether the plaintiffs represented by a lawyer would have been able to recognize, with due care, that the claim is to be directed towards an omission of the interference. "

Change of the legal situation in 2002 (creation of § 182a ZPO). With Section 182a of the German Code of Civil Procedure, the court's obligation to discuss it was extended to the effect that it should apply even in those cases in which a party may have clearly overlooked legal aspects that “have already been brought into play by the other side” and may have considered them to be irrelevant.

“The provision of § 182a ZPO introduced by the ZVN 2002 standardizes the court's duty to discuss the factual and legal submissions of the parties with them and stipulates the 'prohibition of surprise decisions' already derived from § 182 ZPO by the Rsp. According to this, apart from ancillary claims (interest, costs, etc.), the court may only base its decision on legal aspects that a party has recognizably overlooked or considered to be insignificant, if it has discussed them beforehand with the parties and provides them with them Given the opportunity to comment. With this, the stRsp that the parties should not be surprised by a legal opinion was incorporated into the law. However, according to the previous case law, only a legal opinion was surprising if it was not brought into the meeting by any of the parties until the end of the first instance hearing and therefore there was no opportunity to comment. As the named author correctly continues, Section 182a of the ZPO now extends the duties of the courts, because a party may have overlooked or considered irrelevant legal aspects that had already been brought into play by the other party. If the trial court recognizes this, it must point this out in the context of the discussion of the factual and legal submissions; If the trial court did not recognize the party's error, but if it was recognizable, which can be verified according to the files, there is a procedural defect. "

"The first court saw no reason to discuss the determination interest, especially since it rejected the claim for other reasons. The plaintiff's allegation therefore logically hits the appellate court, which also did not address the question of the determination of interest in three appeal hearings. By denying the determination interest in its appeal decision, it violated the prohibition of a surprise decision ”.

“But nothing has been gained for the plaintiff. The appellant filing a procedural complaint for breach of the prohibition of a surprise decision has to demonstrate the relevance of the alleged procedural violation, i.e. to explain how the proceedings would have taken if the error had not occurred. To this end, in the present case, he had to cite the submission that he would have made if he had been informed of the legal opinion of the court of appeal. The plaintiff complied with this requirement in his appeal. His hypothetical submission does not reveal the relevance of the procedural deficiency. ” “ A legal opinion is surprising if it was not brought into the meeting by any of the parties until the end of the first instance hearing and therefore there was no opportunity to comment. ”

literature

Individual evidence

  1. ↑ See e.g. B. ÖOGH, decision v. December 15, 1988, 6 Ob 739/88
  2. ↑ BVerfG, decision of February 13, 2019 - 2 BvR 633/16 para. 24 mwN
  3. ^ So Dorothea Rzepka in "On Fairness in German Criminal Proceedings" , Juristische Abhandlungen Vol. 37, Frankfurt am Main 1998/1999, Vittorio Klostermann Verlag, p. 168, ISBN 3-465-03035-4 ( available online at Google Books ).
  4. ↑ Benedikt Windau: Always difficult: The requirements for a referral back in accordance with Section 538 (2) sentence 1 no. 1 ZPO June 22, 2017
  5. ↑ cf. BVerwG, decision of December 4, 2018 - 4 B 3.18 marginal no. 14 ff.
  6. ↑ BGH, decision of April 29, 2014 - VI ZR 530/12
  7. ↑ BVerfG, decision of February 13, 2019 - 2 BvR 633/16
  8. ↑ BVerfGE 9, 89 [95] = NJW 1959, 427; BVerfGE 84, 188 [189f.] = NJW 1991, 2823; BVerfGE 86, 133 [144] = DtZ 1992, 317
  9. ↑ BVerfGE 65, 227 [233] = NJW 1984, 719; BVerfGE 101, 397 [404] = NJW 2000, 1709
  10. ↑ BVerfGE 60, 175 [210ff.] = NJW 1982, 1579; BVerfGE 64, 135 [143] = NJW 1983, 2762; BVerfGE 65, 227 [234] = NJW 1984, 719; BVerfGE 86, 133 [144] = DtZ 1992, 327
  11. ↑ BVerfGE 101, 397 [405] = NJW 2000, 1709
  12. ↑ BVerfGE 86, 133 [144] = DtZ 1992, 327
  13. ↑ BVerfGE 65, 227 [234] = NJW 1984, 719, BVerfG, decision of. October 25, 2001, 1 BvR 1079/96
  14. ↑ OLG Zweibrücken , judgment v. November 16, 2006, 4 U 126/05
  15. ↑ BFH, judgment v. November 11, 2008 - IX R 14/07
  16. ↑ Resolutions of May 25, 2001 - BVerwG 4 B 81.00 - Buchholz 310 § 108 para. 2 VwGO No. 34 p. 20 f., Of June 16, 2003 - BVerwG 7 B 106.02 - NVwZ 2003, 1132 <1134> - in this regard in Buchholz 303 § 279 ZPO No. 1 - and from March 2, 2010 - BVerwG 6 B 72.09 - juris Rn. 14th
  17. ↑ Decision of December 28, 1999 - BVerwG 9 B 467.99 - Buchholz 310 § 86 Abs. 3 VwGO No. 51, p. 2, BVerwG, decision of. 19 July 2010, 6 B 20.10
  18. ↑ BGH, decision v. March 10, 2011, Az .: VII ZR 40/10
  19. ↑ Senate judgment of April 27, 1994 - XII ZR 16/93 - NJW 1994, 1880, 1881; BGH judgments of March 15, 2006 - IV ZR 32/05 - FamRZ 2006, 942, 943 and of May 16, 2002 - VII ZR 197/01 - NJW-RR 2002, 1436
  20. ↑ BVerfGE 84, 188, 189 f.
  21. ↑ BVerfGE 84, 188, 190; 86, 133, 144; Zöller / Greger, ZPO 29th edition. § 139 Rn. 14 BGH, decision v. May 4, 2011, XII ZR 86/10, margin no. 12
  22. ^ Judgment of June 7, 2011, I-28 U 173/10.
  23. ↑ BSG, B 3 KR 44/09 B, decision of. October 17, 2010, BeckRS 2010 72598; BSG, B 2 U 268/10 B, decision of January 18, 2011, BeckRS 2011 68947
  24. ↑ BGH, decision v. July 10, 2012, II ZR 212/10
  25. ↑ BGH, judgment v. April 29, 2014 - VI ZR 530/12
  26. ↑ See SZ 50/35 = JBl 1978, 262 [König]; JBl 1988, 467 [Pfersmann]; SZ 64/173 = SSV-NF 5/134 with further evidence; SSV-NF 6/114 and many others; Carnival, ZPR2 margin no.647.
  27. ↑ 2 Ob 95 / 08x
  28. ↑ EvBl. 1964 No. 161, Supreme Court , decision of February 16, 1969, 2 Ob 216/68 and 1 Ob 538/77 of March 2, 1977
  29. ↑ SZ 42/28; JBl. 1978, 262 and many more
  30. ^ OGH, decision of April 7, 1981, 4 Ob 546/80
  31. ^ OGH, decision of February 16, 1984, 6 Ob 8/83
  32. ↑ SZ 54/181; SZ 50/35; JBl. 1983, 316; SZ 42/28 u. a.
  33. ^ OGH, decision of May 2, 1984, 1 Ob 544/84
  34. ^ OGH, decision of December 15, 1988, 6 Ob 739/88
  35. ↑ SZ 42/28; SZ 50/35 = JBl 1978, 262 [König]; MietSlg 34.719 / 13; 4 Ob 2334 / 96f with further information
  36. ↑ Stein / Jonas, Commentary on the dZPO, 20th edition, § 278 dZPO margin no. 43; Thomas / Putzo, Commentary on the dZPO, 19th edition, § 278 dZPO margin number 8; 4 Ob 2334 / 96f
  37. ^ OGH, decision of January 14, 1997, 4 Ob 2347 / 96t, but different opinion in the Supreme Court, decision v. October 14, 1997, 1 Ob 144 / 97a. See also OGH, decision v. July 31, 2011, 7 Ob 176 / 01k and OGH, decision of April 30, 2002, 1 Ob 21 / 02y
  38. ↑ RIS Justice RS0120056
  39. ↑ Beran et al., Franz Klein: The civil procedure amendment 2002 from the point of view of the 'working group on procedural simplification' in RZ 2002, 258 [265]
  40. ↑ SZ 57/85; SZ 63/138; ZVR 1997/147 and many others; RIS Justice RS0037300
  41. ↑ SZ 72/28; JBl 2002, 385; Schragel in Fasching / Konecny2 II / 2 §§ 182, 182a margin no.10
  42. ^ OGH, decision of May 25, 2005, 7 Ob 83 / 05i
  43. ↑ 4 Whether 64 / 12h
  44. ↑ 1 Ob 160 / 07x; 2 Ob 203 / 08d; RIS Justice RS0037095 [T4, T5, T6, T16]
  45. ↑ OGH, decision September 20, 2012, 2 Ob 219 / 11m, margin no.7
  46. ^ OGH, decision of July 25, 2014, 5 Whether 117 / 14p