Reinstatement in the previous state
Reinstatement to the previous state (Switzerland: "restoration") is used when a party to the proceedings has missed certain deadlines through no fault of their own or only through minor fault, but (usually at their request) is presented as if they had not missed the deadline : He must, however, catch up on the procedural act in question during the reinstatement period.
In Germany re-establishment occurs both in court proceedings and in administrative proceedings.
Effect and meaning
The reinstatement does not result in a statutory period being extended. Rather, it has the effect that a neglected and belatedly made up process action is deemed to have been effected in good time. The consequences of the reinstatement are therefore a matter of fiction . If an appeal period was missed, the re-establishment of rights removes the legal force of the challenged decision.
The decision of the legislature to allow reinstatements in principle is based on weighing legal certainty against material justice. As a result, it should contribute to the realization of individual justice.
In civil proceedings, reinstatement comes into consideration if a party has missed an emergency period or a deadline to justify an appeal. An application is regularly required that is subject to a deadline. Reinstatement without an application is only possible in exceptional cases, namely if the neglected procedural act was made up for within the application period ( (2) sentence 2 ZPO).
Criminal and administrative offense process
Also in criminal procedure law, as well as in the law of administrative offenses, for which the Criminal Procedure Code (StPO) is applied in accordance with § 46 Administrative Offenses Act (OWiG), there is the possibility of reinstatement in the previous state. § 44 StPO enables reinstatement in the previous state on request, if someone through no fault of their own was prevented from observing a deadline for appeal. Missing a deadline for legal remedies is deemed to be through no fault according to § 44 sentence 2 StPO if a corresponding instruction on legal remedies has not been given.
For administrative administrative procedures , the reinstatement is standardized in VwVfG ( Administrative Procedure Act ) and in the 16 administrative procedure laws of the federal states as well as in various special laws (see below).
Request for restitution
According to the respective rules of procedure, the application must be submitted within the prescribed period after the obstacle has ceased to exist. As a rule, this is the point in time when knowledge of the failure to meet the deadline was obtained .
The application for reinstatement in the previous status must contain a substantiated, coherent description of all facts relevant to the decision within the reinstatement period. The credibility must be made through so-called present evidence, so that mere evidence, e.g. B. by questioning witnesses is not sufficient. In the case of lawyers, this requires the conclusive presentation and substantiation of the organization of the deadline, its monitoring and the cause of the error. As an exception, the reinstatement in the previous status is to be checked ex officio (i.e. also without application) if the omitted act is made up for within the period applicable for the reinstatement and the reasons for the reinstatement are proven.
ZPO ( reinstatement period ):
(1) Reinstatement must be requested within a two-week period. The deadline is one month if the party is unable to comply with the deadline for justifying the appeal, the appeal on the law, the non-admission complaint or the legal complaint.
(2) The period begins on the day on which the obstacle is removed.
(3) After one year, counting from the end of the missed deadline, reinstatement can no longer be applied for.
ZPO ( application for reinstatement ):
(1) The form of the application for reinstatement is based on the provisions that apply to the neglected procedural act.
(2) 1 The application must contain information on the facts justifying the reinstatement; these must be made credible when submitting the application or in the procedure for the application. 2 The missed procedural act must be made up for within the application period; once this has been done, reinstatement can be granted without an application.
StPO ( requirements for an application for re-establishment ):
(1) 1 The application for restitution to the previous status must be submitted to the court at which the deadline would have been observed within one week after the obstacle has ceased to exist. 2 To meet the deadline, it is sufficient if the application is submitted in good time to the court that decides on the application.
(2) 1 The facts to justify the application must be made credible when submitting the application or in the procedure for the application. 2 The omitted act must be completed within the application period. 3 Once this has been done, reinstatement can also be granted without an application.
Start of period
The reinstatement period begins with knowledge of the failure. For legal and tax advisors, this knowledge begins with receipt of the letter with which the date of receipt of the timely letter is communicated to the authorities or the court. An instruction about the failure of the deadline is not required for this period start.
Lack of fault
Reinstatement will only be granted if the party fails to meet the deadline through no fault of its own, i.e. was unable to keep it despite taking the necessary care. Whether this can be admitted depends on the circumstances of the respective case. The facts that should justify the reinstatement, i.e. the circumstances precluding fault , must be presented within the application period and made credible until the decision on the application has been made. In contrast to criminal proceedings, the party in civil proceedings must be held responsible for the fault of their authorized representative (usually their lawyer , but not the lawyer's staff) in the case of office mistakes in accordance with (2) ZPO.
Reinstatement in the previous state is only possible in the event of an office mistake. An office mistake is only present if there is no organizational fault, i.e. there is sufficient deadline control at the consultant and the office worker was sufficiently qualified and controlled.
Organizational negligence and negligence of consultants
A reinstatement is ruled out if the consultant has acted culpably. This is the case if he does not have a proper deadline organization and deadline control and the deadline has been missed as a result. A consultant's fault is also present if he himself - i.e. not the carefully selected and controlled office worker - has incorrectly calculated the deadline. It is also present if he has acted culpably by z. B. has entrusted unqualified personnel such as a trainee with meeting deadlines without checking this themselves or having qualified staff carefully check it. Then the advisor (lawyer, tax advisor, etc.) acts culpably, there is no longer any mistake in the office and a reinstatement in the previous status is ruled out.
Individual reinstatement cases
The case law has re-establishment z. B. failure to meet deadlines
- Longer vacation (if, however, a legal dispute is already being conducted or is to be feared, the vacationer must take precautions so that he learns of important deliveries and can arrange the necessary),
- serious illness, which also makes it impossible to obtain legal advice and the appointment of an authorized representative,
- wrong or unclear legal remedies
If the person concerned proves that he was inpatient in a clinic while the notice of the fine was being delivered, it does not affect his right to be reinstated in the fact that his absence lasted more than six weeks if he made sure that his mail was sent to to sift through at short intervals and the objection deadline was missed.
Overview of legal regulations
In Germany, the reinstatement in the previous status is regulated for the judicial proceedings:
- for civil proceedings in ZPO ( Code of Civil Procedure ),
- for the criminal in CCP ( Strafprozessordnung )
- for the administrative process in VwGO ( Administrative Court ),
- for social justice in SGG ( Social Court Act ),
- for the financial jurisdiction in FGO ( financial court regulations ),
- for the proceedings before the Federal Patent Court in PatG ( Patent Act ).
Other sources for reinstatement in the previous state are:
- Federal Constitutional Court Act ) BVerfGG (
- Introductory Act to the Courts Constitution Act ) GVGEG (
- law on the procedure in family matters and in matters of voluntary jurisdiction ) FamFG (
- FamFG (reference to the ZPO)
- FamFG (reference to §§ 17 ff. FamFG)
- law on court costs in family matters) FamGKG (
- Court Fees Act ) GKG (
- cost regulations ) KostO (
- Judicial Remuneration and Compensation Act ) JVEG (
- Lawyers' Remuneration Act ) RVG (
- Law on Administrative Offenses ) OWiG (
- Prison Act ) StVollzG (
- land register regulations ) GBO (
- Federal Notary ) BNotO (
- Insolvency Code ) InsO (
- Patent Act ) PatG (
- Trademark Law ) MarkenG (
- law on employee inventions ) ArbnErfG (
- UrhSchiedsV - Ordinance on the arbitration board for copyright disputes
- Arbitration Act - Law on arbitration boards in the municipalities
- Building Code (administrative procedure) BauGB -
- Building Code (proceedings before the chambers for building land matters) BauGB -
- Tenth Book of the Social Code SGB X -
- Tax Code AO -
- fiscal amnesty law (Law to promote taxpayer compliance) fiscal amnesty -
- Burden Equalization Act LAG -
- Federal Compensation Act (Federal Act on Compensation for Victims of National Socialist Persecution) BEG -
- UmstG - Third law for the reorganization of the monetary system
All of the foregoing laws contain formulated provisions on re-establishment, some with identical wording, some with their own formulation.
The following references show that a reference is sufficient:
- Labor Court Act ArbGG -
- Labor Court Act ArbGG -
- Introductory Act to the Civil Code EGBGB -
- GBMaßnG - Law on measures in the field of land registry
- Utility Model Act GebrMG -
- Semiconductor Protection Act HalblSchG -
- Law on the judicial procedure in agricultural matters LwVfG -
Reinstatement in the previous status is expressly excluded in the following cases:
- Sixth Book of the Social Code SGB VI -
- BGSVVermG - law regulating property issues of social insurance in the acceding area
- Law on old-age insurance for farmers ALG -
- Extension Act (law on the extension of industrial property rights) ErstrG -
- Federal Election Act BWahlG -
- BoSoG - Soil Separation Act (Act on the separation of unmeasured and overbuilt land according to the map)
- Statute of limitations
- Official deadlines that can be otherwise extended (e.g. deadline for submitting receipts to the tax office).
In Austrian administrative procedural law , according to the General Administrative Procedure Act 1991, there is a provision that the authority must approve restoration to the previous status at the request of a party who missed a deadline or an oral hearing . However, only if the party
- "Makes credible" that an unforeseen or inevitable event prevented them from meeting the deadline or coming to the hearing, and if they are not at fault or only have a "minor degree of oversight",
- missed a deadline for appeal because of the decision
- contains no information on legal remedies at all ,
- does not contain a period of appeal or
- contains the false statement that no legal remedy is admissible.
Reinstatement must be requested within two weeks. This period begins
- with the removal of the obstacle or
- with the time at which the party has learned that an appeal is nevertheless permissible.
If a deadline has been missed, the missed act (such as the appeal) must be made up at the same time as the request for restitution.
The authority responsible for deciding on the application for restitution is
- where the omitted act was to be performed or
- who scheduled the hearing to which the party could not come, or
- who gave the wrong information on legal remedies.
The request for restitution must also be submitted to this competent authority.
If the deadline for a request for restitution is missed, there is a definitive loss of rights.
There is extensive case law on the legal institution of re-establishment, especially by the Administrative Court . Following a very strict interpretation in the past, it has recently become significantly “milder”.
- The decisive aspects include:
- " Fault ": gross negligence , conspicuous carelessness (the fault of the representative is always the fault of the person represented )
- "Minor degree of oversight": slight negligence; a mistake that is occasionally made by careful people
- “Inevitable event”: it can not be prevented by the will of the person concerned
- "Unforeseen event": it was neither taken into account nor expected (this also includes psychological processes such as forgetting, prescribing, being wrong)
- No re-establishment approval for example error or ignorance of the law
- Error about the time of delivery
- Disease that does not exclude the ability to dispose (= ability to make decisions, to be at disposal)
- lack of language skills
- occupational overload
- Vacation trip
- Inadequate organization of the office of a party representative
- Dismay at the content of the decision
- Disposition inability
- Error or mistake by an experienced and otherwise reliable lawyer
In Switzerland, a code of civil procedure came into force on January 1, 2011 , which has replaced the different procedural codes of the cantons . In this the restoration is in f. ZPO regulated. Here, too, it is a prerequisite that the party is not at fault or is only slightly at fault . The request for restoration must be submitted within ten days after the reason for the default has ceased to exist.
- Peter Kummer: Reinstatement in the previous state . Beck 2003, ISBN 3-406-49137-5
- Karsten Schmid, Failure of procedural deadlines when using auxiliary persons, BB 2001, 1198
- A certificate of poverty for poor law (PDF file; 110 kB). In the article by attorney Thomas Fuchs, Heidelberg, a decision by the Federal Constitutional Court on the subject of legal aid and reinstatement in the previous status is dealt with and shows that even after a constitutional complaint following the legal aid procedure, reinstatement is still possible in a missed period of appeal.
- Helmut Tormühlen, reinstatement in the previous version, AO-StB 2012, 56–60
- Lübeck District Court, decision of May 29, 2019 - 65 OWi 2/19; Journal of Damage Law, 8/19, pages 474–475