In procedural law , what matters is formal admissibility. According to general understanding, an authority or a court examines within the framework of admissibility whether it can even make a decision on the matter. Only in the context of the merits of the dispute will be decided in content. Correspondingly, a legal remedy can fail due to inadmissibility as well as unfoundedness.
In the interests of simplifying the procedure and saving costs, filing a lawsuit before a court that is not competent no longer leads to the dismissal of the action as inadmissible, but to a referral to the competent court ((2) of the GVG). In the administrative process, the same applies to local and factual jurisdiction ( VwGO). In some places, therefore, the opening of legal recourse and jurisdiction are no longer viewed as admissibility requirements and are checked separately. The prevailing administrative procedural literature, however, sticks to the two-stage check for admissibility and justification, since the change in the law had purely procedural reasons and does not question this traditional dichotomy.
The admissibility z. B. in administrative legal remedies such as objection or objection , in civil law actions as well as contestation and obligation actions and in legal remedies such as appeal and revision .
Which requirements are to be checked in the context of admissibility depends in particular on the type of action . However, the following minimum requirements must generally be met:
- Kopp / Schenke VwGO , 15th edition 2007, preliminary section 40 marginal note 2; Sodan / Ziekow / Sodan Administrative Court Regulations , 2nd edition 2006, § 40 marginal number 45
- cf. Fourth law amending the VwGO of December 17, 1990, BT-Drucks 11/7030, p. 37
- Hufen Administrative Procedure Law , 7th edition 2008, § 10 marginal note 1
- Martin Heidebach: Preliminary examination, prerequisites for decision-making or admissibility? Expertise structure in the public law exam JURA 2009, 172, 177