Revision (law)

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The revision is an appeal against a court decision . Unlike in the case of an appeal, the actual circumstances of the case are generally not examined again, but only the judgment of the previous instance is checked for legal errors. The person filing an audit is called the auditor or auditor (seldom also auditor) .

Germany

In German law, revision is an appeal against judgments which, according to the individual procedural rules, requires separate approval.

The revision cannot be based on new facts, but only on a legal error in the judgment under appeal, i.e. on a violation of formal law or substantive law . The revision instance is therefore not an instance of fact . In contrast to an appeal , no evidence is collected. A gathering of evidence is however admissible on the subject of the revision or ex officio in any stage of the proceedings under the procedural requirements to be examined. If the appeal against a judgment remains unsuccessful, the contested judgment becomes final with the decision of the appeal court . If an appeal is at least partially successful, the appellate court does not usually make its own decision, but rather annuls the contested judgment and refers the matter back to the instance that pronounced the contested judgment for a new decision. It then has to be renegotiated before the court of origin. In criminal law, the decision in this case is made by a different panel than the one that issued the original judgment.

A super-revision, i.e. a further review of a decision for legal errors by a higher-level court, does not take place. Even the constitutional courts do not check revision judgments for simple legal errors, but only for violations of constitutional law.

The revision is admissible in one

Only the Federal Court of Justice (BGH) is the court of appeal in ordinary jurisdiction in civil proceedings . In criminal proceedings , the higher regional courts or the Federal Court of Justice are the competent authority for an appeal. In the other jurisdictions it is the highest federal courts ( Federal Administrative Court , Federal Labor Court , Federal Social Court and Federal Fiscal Court ).

The revision by the lower courts of first instance , bypassing the appeal instance , is called a jump revision . In administrative law, there is also a substitute revision instead of an appeal in certain constellations .

Revision in civil proceedings

Since the revision law was redesigned through the introduction of a general approval revision in 2001, revision in civil proceedings has to be approved by the appellate court in the appeal judgment or by the appellate court in response to a complaint against the non-admission ( Section 543 (1) ZPO). The revision is to be permitted if the legal matter is of fundamental importance or the further development of the law or the safeguarding of a uniform jurisprudence requires a decision of the appellate court (so-called divergence revision ), § 543 Abs. 2 ZPO. The non-admission of the appeal by the appellate court can be attacked with the non-admission complaint to the appeal court (the Federal Court of Justice ) ( § 544 ZPO).

For a transition period that was extended several times, the non-admission complaint in accordance with Section 26 No. 8 EGZPO presupposed that the value of the complaint made with the revision exceeded 20,000 euros. On June 8, 2018, the German Bundestag decided to extend the deadline to December 31, 2019 for the last time. On January 1, 2020, Section 26 No. 8 EGZPO was repealed. Since then, the minimum complaint has been regulated for an unlimited period in Section 544 (2) ZPO.

Revision in the labor court process

An appeal to the Federal Labor Court against the rulings of the regional labor courts is permissible, § 72 ArbGG, if the regional labor court has admitted the appeal in the judgment or the Federal Labor Court has allowed the appeal on a complaint against the non-admission, § 72a ArbGG.

The revision is only permitted if a legal question is of fundamental importance or if the decision of a court of equal or higher ranking is deviated from. In addition, the absolute reasons for revision of the Code of Civil Procedure ( § 547 ZPO) and the violation of the right to be heard can be asserted.

The Labor Court Act does not know a minimum limit for the revision value (value of the complaint) as in the Code of Civil Procedure.

Revision in criminal proceedings

General

The revision in the criminal process is an appeal against judgments of a criminal court. The purpose is to achieve justice in individual cases and to maintain legal unity (see also separability formula ).

While the taking of evidence can be repeated in the appeal , a renewed taking of evidence in the appeal is excluded. The appellate court only examines whether the judgment is substantively correct and whether it was reached in accordance with procedural law. If the facts have been incorrectly established, they will be overturned by the appeal court.

Admissibility

The revision is admissible against all

  • Judgments of the local courts ( jump revision , § 335 StPO),
  • first instance judgments of the regional courts and higher regional courts, and
  • Appeal judgments of the small criminal chamber of the regional court, §§ 333 , 335 StPO, with restrictions also § 55 Abs. 2 JGG

Jurisdiction

The higher regional court is responsible for appeals against:

  • Appeal rulings by the regional court ( Section 74 (3) GVG, Section 121 (1) number 1b GVG)
  • first instance judgments of the local court, referred to as jump revision ( § 335 paragraph 2 StPO) ( § 121 paragraph 1 number 1b GVG)
  • Exceptionally first instance judgments of the regional court if the appeal is based solely on the violation of a legal norm contained in the regional laws ( Section 121 (1) number 1c GVG)

The Higher Regional Court decides through one of its criminal panels ( Section 116 (1) GVG). This is made up of three professional judges including the chairman ( Section 122 (1) of the GVG).

The Federal Court of Justice is responsible for appeals against:

  • First instance judgments of the regional court (unless the OLG decides in exceptional cases)
  • First instance judgments of the Higher Regional Court, Section 135 (1) GVG.

The Federal Court of Justice decides through one of its criminal panels ( Section 130 (1) GVG). This is made up of five professional judges including its chairman ( Section 139 (1) GVG).

Revision filing

The revision is to be lodged with the iudex a quo , i.e. with the court whose judgment is being contested. The submission can be made in writing or for the minutes of the office ( Section 341 of the Code of Criminal Procedure). For those who are not at large, the special regulation of Section 299 of the Code of Criminal Procedure applies . They can also submit the revision in good time to the minutes of the office of the locally competent district court of the place of custody. An appeal can also be made immediately after the verdict has been announced and recorded in the minutes of the meeting . However, according to No. 142, Paragraph 2, Sentence 2 of the RiStBV, a defendant who wants to appeal must be referred to the office.

According to Section 341 (1) of the Code of Criminal Procedure, the deadline for filing an appeal is one week after the judgment has been pronounced, which consists of reading out the sentence and giving the reasons for the judgment. If the judgment is announced in the absence of the accused, this period begins with the delivery of the judgment ( Section 341 (2) of the Code of Criminal Procedure). If the end of the weekly period falls on a public holiday, Saturday or Sunday, the period does not end until the next working day.

If the deadline for filing was missed through no fault of your own, reinstatement in the previous status must be granted upon application or ex officio . In particular, in contrast to civil procedure law, the defendant's fault cannot be attributed to the defendant. This does not apply if the defendant is aware of the unreliability of the defense counsel.

According to § § 296 , § 297 StPO, both the accused, the public prosecutor and the defense counsel are authorized to make a revision . The latter's declaration of appeal is, however, subsidiary to the defendant's declaration if these contradict one another. However, if the accused has a legal representative , he is also entitled to lodge an appeal and can also undertake this against the will of the accused ( Section 298 of the Code of Criminal Procedure). In addition, in the case of private and secondary actions, the private plaintiff (Section 390 StPO) and the secondary plaintiff (Section 401 StPO) are also entitled to make an appeal. However, the joint plaintiff can only file an appeal on an appeal with regard to an associated criminal offense and cannot appeal against the aim of a different legal consequence ( Section 400 of the Code of Criminal Procedure).

In order for a revision to be admissible, it is also necessary that the person authorized to revise is adversely affected by the court decision and that no effective waiver of legal remedies has been declared ( Section 302 of the Code of Criminal Procedure).

Reasons for the revision

According to Section 345 (1) of the Code of Criminal Procedure, reasons for an appeal must be given no later than one month after the deadline for filing an appeal. If the judgment has not yet been served at this point in time, the period only begins with the service.

The defendant's justification for the appeal can be made in writing by means of a document signed by the defense counsel or a lawyer, or orally in the minutes of the office ( Section 345 (2) of the Code of Criminal Procedure). If the reason for the revision is declared in the minutes of the office, the judicial officer is responsible ( § 3 No. 3c and § 24 Paragraph 1 RPflG). For those who are not at large, the special regulation of Section 299 of the Code of Criminal Procedure applies. In the case of private and secondary plaintiffs, a written document signed by a lawyer is required to justify the appeal (Section 390 (2) StPO or 395ff in conjunction with 390 (2) StPO).

In terms of content, the justification for the revision should contain the necessary revision requests. A revision directed against the judgment in its entirety usually includes an application to set aside the judgment with the associated findings and to refer it back to another panel of the court for renewed hearing and decision. The reasoning must show whether the judgment is being contested because of the violation of procedural law (procedural complaint) and / or because of the violation of substantive law (substantive complaint ) ( Section 344 of the Code of Criminal Procedure). The public prosecutor's office must also provide explanations in the event of a complaint of a violation of substantive law (complaint) (see No. 156 RiStBV ). This is not required on the part of the defendant or his defense counsel. With regard to a procedural complaint, however, a substantiated statement of the complaint is always required. If there is no substantiation of the procedural complaint and the appellant has restricted the appeal in the statement of reasons to it, then in this case this already results in the appeal being rejected as inadmissible.

Reasons for revision

According to § 337 StPO, the revision can only be based on the fact that the judgment is based on a violation of the law. A distinction is made between the lack of procedural requirements , the violation of procedural law and the violation of substantive law .

Lack of procedural requirements

The court examines the absence of procedural requirements (= existence of a procedural obstacle ) ex officio . Such a procedural obstacle can be given in a missing opening decision , a missing criminal complaint in the case of absolute offenses against the complaint , in the event of opposing legal force, an already different lis pendens or in the case of statute of limitations.

Procedural error

A procedural error is present if a legally prescribed procedural act has not been carried out or has been carried out incorrectly or if an impermissible procedural act has been carried out. The evidential value of the minutes of the main hearing is of decisive importance . Furthermore, official declarations can be used to prove the respective legal error in the form of free evidence . In the context of procedural errors to be attacked with the procedural complaint, a distinction is made between the absolute and the relative reasons for revision .

In the case of the absolute reasons for revision according to § 338 No. 1 to 7 StPO, the judgment is irrefutably presumed to be based on the violation of the law . One such case is that of exclusion from judicial office . The remaining procedural errors are relative reasons for revision ( § 337 StPO or, according to the prevailing opinion, § 338 No. 8 StPO), for which the possibility must exist that the judgment would have turned out differently without the error, i.e. based on the respective error . In this context, however, it should be noted that in some cases a complaint may have been lost due to preclusion . A procedural error can then no longer be asserted. An example of such a preclusion is the failure to assert an unlawful composition of the court in good time, which should have taken place in the main hearing before the first defendant was questioned ( Section 222b StPO).

The judgment based on a procedural error is also ruled out, for example, if an error in gathering evidence has already taken place in the preliminary proceedings because a prohibition of gathering evidence was violated there, and the evidence obtained in this way also had an effect on the finding of the judgment, but in the context of the main hearing preceding the judgment the defendant then failed to raise the objection required by the rulings of the BGH in good time. In this case, the judgment is not based on the procedural error, but on the (faulty) defense of the accused, since the objection was not made. The same applies to a failure to complain of an impermissible property line order of the Chairman of the accused defended by the Zwischenrechtsbehelf ( § 238 para. 2 CCP), because in this case the judgment is placed on the failure to act for the complaint Rely.

Violation of substantive law

Material errors are primarily an incorrect legal assessment of the facts and an incorrect assessment of the sentence . With regard to the factual findings and the assessment of evidence, there is only a reason for revision in the event of a legal error. This is the case, for example, if the factual findings do not provide a sufficient basis for the judgment or if the assessment of the evidence is inconsistent or violates established empirical statements. The assessment of the evidence can be incorrect, for example, if the judgment was based on a witness testimony borne by eagerness to cope with the burden .

The judgment is usually based on material defects. An exception are incorrect auxiliary considerations, a further exception are paragraphs 1a and 1b, which were newly inserted in Section 354 of the Code of Criminal Procedure in 2004. Paragraph 1a sentence 1 and sentence 2 enable the appellate court to make its own judgment on the assessment of the facts. The norm is constitutionally manageable (BVerfG, decision of June 14, 2007).

Revision in the social court process

In proceedings before the social courts, an appeal ( § 160 SGG) against judgments of the state social courts to the federal social court is only permissible if it has been admitted by the state social court or the non-admission has been eliminated by a successful non-admission complaint to the federal social court ( § 160a SGG).

Reasons for the approval of the appeal can only be the fundamental importance of the case, the deviation from a decision of the Federal Social Court or a serious procedural defect.

Revision in the administrative court process

An appeal against the judgment of a higher administrative court is possible to the Federal Administrative Court according to § 132 Abs. 1 VwGO, if this was admitted by the higher administrative court or in the context of a non-admission complaint by the Federal Administrative Court. The same applies to the decision of a higher administrative court on judicial review actions according to Section 47 (5) sentence 1 VwGO.

An appeal can also be lodged against the judgment of an administrative court if it has been approved by the administrative court or the federal administrative court in accordance with Section 135 VwGO and the appeal is excluded. A leap revision is possible if the plaintiff and the defendant have agreed to this in writing and it has been approved by the administrative court in accordance with Section 134 (1) VwGO.

Revision in the tax court process

An appeal against the judgment of a tax court is possible at the Federal Fiscal Court if this has been approved by the tax court. A non-admission complaint can be lodged with the Federal Fiscal Court against non- admission .

Austria

Revision in civil proceedings

In Austrian civil proceedings, revision (§ § 502 ff. ZPO) is the ordinary legal remedy against judgments of the regional and higher regional courts in the second instance (see: Court organization in Austria ). There is no leap revision in Austrian civil procedure law. The Supreme Court in Vienna decides .

Reasons for revision

As statutory reasons ( § 503 ZPO) only defects in the proceedings before the Court of Appeal, which can either nullity cause, or at least an exhaustive evaluation and thorough assessment of the matter prevent could incorrect legal assessment by the Court of Appeal or Aktenwidrigkeit (if the Court of Appeal contrary to the case files assumed a fact as proven). As in Germany, the Supreme Court is not an instance of fact.

admissibility

The admissibility of the appeal ( § 502 ZPO) assumes in any case that the decision depends on the solution of a legal question of great importance (for example because a case law of the Supreme Court on this question is missing or inconsistent or because the court of appeal depends on the case law of the Supreme Court of Justice), and is also dependent on the amount of the subject of the dispute on which the appellate court has decided (subject of the decision):

  • The revision is in any case inadmissible up to a decision subject of no more than 5,000 euros.
  • If the subject of the decision is more than EUR 5,000 but not more than EUR 30,000 or in disputes about legal maintenance with a subject of the decision not exceeding EUR 30,000, the ordinary revision is not permitted if the appellate court has not declared it to be admissible in its decision . In such a case, the auditor can submit an application to the appellate court to change the ruling on the inadmissibility of the appeal and to declare the ordinary appeal to be admissible ( Section 508 ZPO). The appellate court decides on this with an incontestable decision .
  • If the subject of the decision is more than 30,000 euros, an appeal (extraordinary appeal) is also permissible if the appellate court has declared it to be inadmissible ( Section 505 (4) ZPO). If the prerequisites are not met (because there is no question of law of considerable importance), the Supreme Court rejects the extraordinary appeal with a decision.
  • In certain family law disputes (especially paternity and marriage matters), in dismissal and eviction matters, in collective actions according to § 29 KSchG as well as in labor and social law matters, the extraordinary revision is permissible, even if the appellate court has declared it to be inadmissible.

Revision period

The period for filing the revision or submitting the application for approval of the ordinary revision is four weeks. If the revision is admissible or if it is declared admissible, the opponent has the right to submit a reply (revision response) within a further four weeks. A lawyer is required in the appeal proceedings.

Decision on revision

The decision of the Supreme Court usually takes place in a closed session. The Supreme Court either decides on permissible revisions in the case itself with judgment or it refers the case back to the court of second or first instance for a new decision after the proceedings have been completed. For this, the legal view expressed by the Supreme Court in its reasoning is binding.

Revision in administrative court proceedings

According to Art. 133 B-VG, an appeal against the findings and decisions of the administrative courts can be brought to the Administrative Court on grounds of illegality .

admissibility

An appeal against a decision or a decision of an administrative court is permissible if it depends on the solution of a legal question that is of fundamental importance, in particular because the decision or the decision deviates from the case law of the Administrative Court, there is no such case law or the legal question to be solved has not been answered uniformly in the previous case law of the Administrative Court. Revisions due to infringement of rights are not permitted against findings that are only concerned with small fines.

In its decision, the administrative court has to state with a brief justification whether an appeal is admissible ( § 25a VwGG ). If the revision allows, an ordinary revision can be submitted to the Administrative Court. Otherwise, there is the possibility of an extraordinary revision , in which the reasons must be given as to why, contrary to the ruling of the administrative court, the revision should be admissible ( Section 28 VwGG).

Revision period

The deadline for filing an appeal is six weeks ( Section 26 VwGG). The revision must be submitted to the administrative court itself ( Section 25a VwGG). A lawyer is required in the appeal proceedings.

Decision on the revision

In the case of a regular revision, the administrative court itself first checks compliance with the formal requirements and can reject them as inadmissible ( Section 30a VwGG). On the other hand, an application for a submission can be submitted within two weeks that the appeal is submitted to the Administrative Court for decision ( Section 30b VwGG). If the administrative court does not reject the appeal, it must give the other parties involved the opportunity to respond to an appeal and then submit the appeal to the administrative court.

In the case of an extraordinary revision, there is no preliminary procedure before the administrative court; the revision is immediately forwarded to the administrative court. The Administrative Court itself has to give the other parties involved the opportunity to respond to an appeal.

Under certain conditions, an oral hearing must be held before the Administrative Court ( Section 39 VwGG). The Higher Administrative Court decides with knowledge, whereby it can reject the appeal or annul the contested decision or - in exceptional cases - also decide on the matter itself ( Section 42 VwGG). If the Administrative Court overturns the decision of the Administrative Court, it must issue a new decision, whereby it is bound by the legal opinion of the Administrative Court.

Switzerland

In Swiss procedural law, revision refers to the resumption of proceedings (cf. Art. 410 ff. Swiss Code of Criminal Procedure, Art. 328 ff. Swiss Code of Civil Procedure).

The equivalent of the revision in the German or Austrian sense is the appeal to the Federal Supreme Court in Switzerland .

France

In French law, the revision corresponds to the pourvoi en cassation to the court of cassation . This may, within two months against any judgment en dernier ressort , the last trial court, are inserted ie. The Court of Cassation does not check the actual circumstances of the case, only the correct application of the law by the lower court. The pourvoi en cassation has no suspensive effect.

On the other hand, recours en révision is a kind of retrial . This is only possible in cases of fraudulent proceedings by the prevailing party, withholding or falsifying essential evidence or false witness statements.

Netherlands

The revision in Dutch law means a reopening of the proceedings . The Dutch equivalent of the revision (in the German or Austrian sense), on the other hand, is called (beroep in) cassatie , and the High Council of the Netherlands decides on it .

Common law

In most jurisdictions of the common law -Rechtskreises is the appeal 's sole remedy against judgments of the first instance and thus corresponds to both the appeal and the revision. In the judicial system of England and Wales , the Court of Appeal is largely tied to the facts of the first instance; the introduction of new facts is severely restricted, which is why the appeal here is more like a revision (in German law).

Individual evidence

  1. ↑ cf. Wolfgang Rupprecht: Reasons for the admission of revision in German procedural rules. A comparison of the civil procedure code, administrative court code, tax court code, labor court law and social court law. European University Law. Peter Lang-Verlag, Frankfurt am Main and others, 2015. ISBN 978-3-653-99802-3 .
  2. ↑ Law on the Reform of Civil Procedure (Civil Procedure Reform Act - ZPO-RG) of July 27, 2001, Federal Law Gazette I, p. 1887
  3. ^ Draft of a law for the reform of the civil process BT-Drs. 14/4722 of November 24, 2000, p. 65 ff.
  4. ↑ see Dirk Wüstenberg: Revision: The fundamental importance of the legal case as a challenge. Tips for the non-admission complaint and the constitutional complaint Anwaltsblatt 2018, pp. 140–144.
  5. ↑ § 26 No. 8 EGZPO in the version valid before January 1, 2020 buzer.de, accessed on May 7, 2021.
  6. ↑ Art. 1, Art. 2 No. 14 of the law regulating the value limit for non-admission complaints in civil matters, expanding specialization in the courts and amending other procedural regulations of December 12, 2019 ( Federal Law Gazette I p. 2633 )
  7. ↑ Alain de Schlichting, Xavier Volmerange: Introduction to the French legal language. 3rd edition, CH Beck, Munich 2011, pp. 22, 30.
  8. ↑ Alain de Schlichting, Xavier Volmerange: Introduction to the French legal language. 3rd edition, CH Beck, Munich 2011, p. 30.
  9. ↑ Ilse Boon, Gerard-René de Groot, Hans von Reden: The Dutch judiciary and the notary. In René de Groot, André Janssen: Festschrift on the occasion of the sixtieth anniversary of the German-Dutch conference of lawyers. Lit Verlag, Berlin / Münster 2009, pp. 65–77, on p. 66.
  10. ↑ Stephan Schiller: The change of action in the revision instance in civil matters. Herbert Utz Verlag, Munich 1997, pp. 93, 95.