Referral (law)
In procedural law (also: procedural law ), referral is the transfer of a legal dispute to another court .
General
Referral within the same legal process
Within a jurisdiction , legal disputes are referred to the locally or factually competent court if it turns out that the action has been brought to a court that is not competent in this regard. The corresponding regulations can be found in the respective procedural rules ( Section 281 ZPO , Section 48 (1) ArbGG , Section 83 VwGO , Section 98 SGG , Section 70 FGO ).
References are also made between the civil chambers and the chambers for commercial matters of a regional court ( § 97 , § 98 GVG ).
Referral to another legal process
In addition, according to Section 17a of the GVG, there is the possibility of referral to another competent legal channel if the one chosen by the plaintiff is not responsible for the proceedings. The referral is issued as a decision , either on application or ex officio , depending on the respective regulation , and is binding on the court to which the referral was made with regard to legal recourse. This also applies to incorrect references. This is to prevent processes from being delayed by multiple references. In exceptional cases, the legal force may be breached if the referral decision appears to be objectively arbitrary .
Delimitation to the submission of the procedure
A distinction is made between the transfer , which in certain cases is intended as a less formal type of transfer to another court or another panel, e.g. the transfer between similar panels of the same court for reasons of business distribution , the transfer according to Section 23b (2) Sentence 2 GVG or the submission in the dunning procedure according to § 696 Abs. 1 ZPO.
Civil litigation
If the action has been brought before a court that is not competent in terms of subject matter or location and the jurisdiction of the court has not been established by the fact that the defendant negotiated the main matter orally according to Section 39 of the German Code of Civil Procedure (ZPO) without complaining about the lack of jurisdiction, the court called has itself To declare the court to have no jurisdiction at the request of the plaintiff and to refer the legal dispute to the competent court ( Section 281 ZPO). The plaintiff has a choice of several competent courts.
The referral decision cannot be challenged and is binding on the court to which the referral is made. Contrary to the wording of the law, according to the case law, the binding effect does not apply if the referral is arbitrary .
In proceedings before the local court , the court has to refer the dispute to the competent regional court at the request of one of the parties if a claim is made through an extension of the action or a counterclaim for which the regional court is materially responsible ( Section 506 ZPO).
Administrative process
In the administrative process, as in civil proceedings, the reasons are primarily based on the factual or local jurisdiction of the court.
If, in the social court procedure (a special administrative jurisdiction), the action is brought to a locally non-competent social court, the latter expresses its lack of jurisdiction by resolution and refers to the factually and locally competent social court in accordance with § 98 SGG, § 17a GVG. The period of action of one month after the announcement of the contested administrative act ( § 87 SGG) is preserved, because the lis pendens ( § 94 SGG, § 17b GVG) is not affected by the referral.
Criminal trial
The matter can also be referred in criminal proceedings. For example, if, after the main hearing has started, it turns out that the jurisdiction of the court may not be sufficient for a lawful conclusion of a procedure, for example, as a higher penalty is threatened than the sentencing court could impose. In this case, the criminal case can be referred to the relevant court according to § 270 StPO . Even if suspicions arise on offenses which are relevant to the current case can be but negotiations only to a higher court (about state security offenses for which the Court of Appeal would have jurisdiction; see § 120 GVG ) is to issue a referral. If there are reasons for a defendant that may require a measure of improvement and protection , e.g. If, for example, it is necessary to admit to a psychiatric hospital or to impose preventive detention, but the criminal case was not opened before the regional court , which would have jurisdiction over it, a referral is also necessary.
The submission to a higher court takes place in another form if this is to take place before the start of the main hearing. Then the court submits the files to the higher court and the higher court decides whether to take over the matter ( Section 209 (2), Section 225a (1) StPO).
Referral to a lower court is also possible. In the event of a referral to a lower court, the public prosecutor's office can lodge an immediate complaint pursuant to Section 210 (2) StPO .
According to Sections 270 (3) and 210 (1) of the Code of Criminal Procedure, the defendant can not appeal against a referral . An exception is the referral of a higher regional court to a lower court if the higher regional court has jurisdiction in the first instance ( Section 304 (4) No. 3 StPO).
