Execution judgment

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A Vornahmeurteil (even obligation judgment called) to § 113 para. 5 sentence 1 Administrative Court Procedure (Code of Administrative Procedure) is in German administrative law a possible verdict form an obligation action .

When Vornahmeurteil obliging court the authority the coveted administrative make without this still a discretion remains. However, this is only possible under the condition that the matter is ready for a decision, i.e. the court can and must make a final decision. Since the court does not issue the administrative act itself, but obliges the authority to do so, its content and scope must be comprehensively determined at the time of the court decision. This serves to guarantee effective legal protection according to Article 19 (4) of the Basic Law. This is then placed at a Vornahmeurteil when the law a bound decision ( "is entitled" as opposed to "can") is laid down, or a so-called discretion reduction to zero is present.

If the plaintiff applies for a preliminary judgment, there is a risk that the complaint will not be fully justified due to a lack of maturity and will therefore otherwise be rejected by the court. As a result, the plaintiff has to bear part of the costs .

According to Section 113 (5) sentence 2 VwGO, the authority is not ready for a decision if the legislature has granted the authority priority decision-making power. This can involve both a margin of appreciation when determining the requirements for the coveted administrative act or a discretion in accordance with Section 40 of the Administrative Procedure Act (VwVfG) when structuring the legal consequences of the administrative act. As long as the authority has several options for making decisions, including a renewed refusal of the administrative act, the court may not disregard this and oblige the authority to issue the administrative act by way of a judgment . In this case, a decision is issued in which the authority is only obliged to carry out the procedure again if necessary and thus to make a new discretionary decision, taking into account the legal opinion of the court ( Section 113 (5) sentence 2 VwGO). A decision judgment can result in the authority, within the scope of its discretion, nevertheless deciding to the detriment of the plaintiff and the plaintiff thus possibly. U. has not "won" anything. The plaintiff has to bear this uncertainty, however, since the court is not entitled to replace the authority's discretion ( Section 114 VwGO).

Also on only one Bescheidungsklage towards the court can as part of his office duty determining the award to maturity (§ 86, paragraph 1 VwGO) file location manufacture and "by decide" with a Vornahmeurteil. The prerequisite for this is that the court is convinced of the plaintiff's claim to the coveted administrative act, i.e. the plaintiff's rights have been violated by the rejection or omission of the administrative act. The decision is made, according to the relevant case law of the Federal Administrative Court and the highest judicial interpretation of § 88 VwGO, often for procedural reasons, so as not to drag out proceedings unnecessarily.

If you are unsure whether or not you are ready for a decision , it is customary to submit an application for an obligation to do so with an auxiliary application (see auxiliary application ) for an obligation to issue a decision (see notification ) in order to avoid a new appeal to the court or the risk of to avoid having to partially bear the costs of the proceedings.

Individual evidence

  1. ↑ Schoch / Schneider / Bier / Riese VwGO § 113 Rn. 213-225. Retrieved July 14, 2019 .
  2. ↑ Schoch / Schneider / Bier / Riese VwGO § 113 Rn. 214-217. Retrieved July 14, 2019 .
  3. ↑ BVerwGE 151, 138 - Extension of an airport. S. Rn. 40 , accessed July 15, 2019 .
  4. ↑ BVerwG, NVwZ-RR 1993, 69 - Calculation of the reference quantity in the case of area transition. Pp. 70–71 , accessed July 15, 2019 .
  5. ↑ Schoch / Schneider / Bier / Riese VwGO § 113 Rn. 218-220. Retrieved July 15, 2019 .
  6. ↑ https://www.jurion.de/Urteile/BVerwG/1998-02-10/9-C-2897?from=0:314010 (paragraph 9)
  7. ↑ http://www.bverwg.de/entscheidungen/entscheidungen.php?ent=130112B9B56.11.0 (paragraph 7)