The legal concept of contradiction (as a legal rebuttal) denotes an appeal against administrative and judicial decisions , a special legal institution of the land registry law and the possibilities of housing tenant , at termination to take action by the landlord against this, or the employee , the transition of his employment relationship to prevent the operation acquirer. In trademark law , the opposition procedure offers owners of older rights the opportunity to take action against a newly registered trademark .
Land register law
In the land register law , the objection is a security means of its own according to BGB . It states that, in the opinion of the registrant, the true legal situation does not match the one registered. It is entered as a contradiction to the correctness of the land register and, if the land register is incorrect, is intended to prevent a loss of rights by the true entitled person through acquisition in good faith . The registered opposition destroys the - otherwise existing - public belief in the correctness of the land register. In contrast to the reservation that a change of the land register prophesied , protested the opposition to the accuracy of the land register.
In tenancy law , BGB gives the tenant of living space the opportunity to protest against the ordinary termination of the landlord and to continue the tenancy. The prerequisite is that the termination represents a social hardship and that the interests of the landlord do not weigh more heavily.
In labor law , an employee can object to the legal transfer of his employment relationship to the purchaser of the company in which the employee works in accordance with (6) of the German Civil Code . The employment relationship then remains with the previous owner. As a rule, however, after the company has been sold, the employee will no longer have the opportunity to employ the employee, so that the contradicting employee runs the risk of being dismissed for operational reasons. An objection is therefore only recommended in rare exceptional cases. The objection can be declared to the previous owner as well as to the new owner. This must be done in writing and within a period of one month after the employee has been informed in writing about the transfer of business .
At the German Patent and Trademark Office (DPMA) , an objection can be raised against the registration of a trademark or against the granting of protection for an internationally registered trademark if this conflicts with relative obstacles to protection (in particular, rights of prior priority from another trademark registration). The opposition procedure follows the registration procedure and ends either with a deletion or partial deletion of the newly registered trademark (or withdrawal of protection of the international trademark in Germany), or the opposition is rejected. The decision of the DPMA in opposition proceedings can be contested with the remedy of reminder ( Trademark Act ). An appeal to the Federal Patent Court (BPatG) is possible against the decision of the DPMA in the so-called reminder procedure . There is no compulsory lawyer at the Federal Patent Court .
Civil procedural law
In civil proceedings, the objection may arise. a. in the following cases:
- In the dunning procedure , the legal remedy directed against the issuing of a dunning notice by the defendant is called an objection, Code of Civil Procedure (ZPO). The objection has the effect that the applicant cannot obtain an enforcement order , but can instead transfer to the ordinary civil proceedings to clarify the disputed claim.
- An objection can be raised against an arrest or an interim injunction issued by resolution without an oral hearing according to , ZPO. Then, after an oral hearing, a final judgment will be made about their legality .
- In the distribution procedure , an objection can be raised against the division plan ( ZPO).
- In the foreclosure auction , among other things, the objection to the admission of a bid without security deposit ( (3 ) ZVG ), the admission of an overbid ( (1) sentence 1 ZVG), the rejection of a bid ( (2) ZVG ) or against the division plan ( ZVG).
According to the general opinion, the objection procedure in administrative proceedings and administrative procedural law essentially serves three purposes: self-regulation by the administration , legal protection of the citizen and relief of the administrative courts .
In administrative law , those affected by the administrative act of an authority can raise an objection against it within the appeal period (one month) from its notification and thus cause the competent authority to review the legality and appropriateness of the administrative act. The same applies in the event that the authority refuses to issue a coveted administrative act (e.g. approval).
If the right of objection has not been instructed or not correctly instructed , the right of objection should only expire after one year. The objection must be made in writing or to be recorded. In the administrative process, the objection opens the preliminary proceedings before an administrative court action, VwGO . Without preliminary proceedings, apart from the possibility of an action for failure to act (cf. VwGO), no action for rescission or obligation can be brought (cf. VwGO). However, there are exceptions to this in both federal and state law. A lawsuit must then be filed immediately.
Special features in individual federal states
In Lower Saxony , the objection procedure has been in place since 2005 with a few exceptions - e.g. B. in building law, school law and social law - permanently abolished.
- Section 80 Lower Saxony Justice Act (NJG)
- Section 105 Lower Saxony Civil Service Act (NBG)
- Section 4a Lower Saxony Implementation Act to the Social Court Act (Nds. AG SGG)
In Bavaria the objection procedure has been abolished in many areas. Without an objection procedure, legal action against an administrative act must be brought before the competent administrative court. Objections as well as immediate legal action are only possible against administrative acts, which deal with the areas mentioned in Art. 15 Paragraph 1 of the Act for the Implementation of the Administrative Court Regulations (AGVwGO).
In April 2007, the objection procedure for building and trade law was abolished in North Rhine-Westphalia . The state parliament of North Rhine-Westphalia then abolished almost all other objection procedures under state law with effect from November 1, 2007 (initially limited to December 31, 2015) through the 2nd bureaucracy reduction law. Examination decisions, administrative files by schools, universities, the Westdeutscher Rundfunk Köln (WDR) and the GEZ , aid notices in civil service law and third-party contradictions are mainly excluded . The discontinuation of the objection procedure does not affect the cases of a general action suit and declaratory action or continuation declaratory action .
Unless the preliminary proceedings have been abolished in the specific matter, actions, with the exception of the action for failure to act , are inadmissible before the preliminary proceedings are concluded. This does not affect applications to the social court that are not legal actions (in particular for interim legal protection according to (2) SGG).
In Lower Saxony, the preliminary procedure for childcare allowance and blind allowance has been abolished (Section 4a of the Lower Saxony Implementation Act to the Social Court Act (Nds. AG SGG)).
In the event of a dispute, the social law route is specified for all social benefits , in particular for measures and benefits that are granted according to the First to Seventh Book of the Social Code (e.g. unemployment benefits or social assistance ).
- Harald Hofmann, Jürgen Gerke: General administrative law with notification technology, administrative enforcement and legal protection. 10th edition. Kohlhammer, ISBN 978-3-555-01510-1 .
- Pilot project Probeweise abolition of the objection procedure in the administrative district of Middle Franconia ( Memento from June 22, 2008 in the Internet Archive )
- NRW draft law on bureaucracy reduction law II printed matter 14/4199 of April 23, 2007 (PDF file; 44 kB)
- NRW Bureaucracy Reduction Act I 14/49 of April 15, 2007 (PDF file; 30 kB)
- NRW Bureaucracy Reduction Act II 14/68 of November 1, 2007 (PDF file; 23 kB)
- Opposition proceedings ( Memento from August 2, 2009 in the Internet Archive ) - Excerpt from the statement of the President of the Lower Saxony Higher Administrative Court Dr. Herwig van Nieuwland to the Lower Saxony Ministry of Justice on October 20, 2003 for the abolition of objection procedures.
- § 80 NJG.
- § 105 NBG.
- § 4a Nds. AG SGG.
- Law for the implementation of the Administrative Court Regulations (AGVwGO) in the version of the announcement of June 20, 1992 (GVBl p. 162) BayRS 34-1-I, last amended by Art. 10b para. 4 G for the implementation of the Federal Registration Act of June 23 2015 (GVBl p. 178).