Remittal
The remittal is a possible appeal decision by courts from the second instance. It is preceded by a collection decision , with which the court cancels the judgment of the lower instance, but does not decide on the matter itself, but submits it again to the court of the lower instance so that it can be passed on again, possibly taking into account the legal opinion of the referring court the matter at issue is decided.
Civil litigation
Referral back in the appeal process
Referral back is the rule in the revision procedure and follows from § 563 ZPO. Since the revision is not an instance of fact, the procedure, if the revision is successful, will be referred back to the appellate court after the judgment has been reversed or, in the case of a leap revision, to the court of first instance so that it can carry out further necessary factual determinations to finally settle the disputed Thing to be able to decide.
However, the appellate court has to decide on the matter itself if only a violation of substantive law is found and the matter is ready to be judged.
The court of appeal can also refer the matter back to the court of appeal if the violation of the legal hearing is established in a non-admission complaint . ( Section 544 (7) ZPO)
Referral back on appeal
Referral back during the appeal process is only permitted in exceptional cases according to § 538 ZPO, since the appellate court has to decide on the matter itself. However, referral back is possible at the request of one of the parties in the following cases:
- the procedure suffers from a major flaw and extensive evidence is required
- an objection was rejected as inadmissible by the lower court
- the court of lower instance only decided on the admissibility of the action and not on the matter in dispute
- In the dispute over a legal claim , the court of the lower court either only decided on the reason or dismissed the claim entirely
- against reservations in the document and bill of exchange process
- against a default judgment
- against a partial judgment if this is legally inadmissible
Criminal trial
Administrative process
Referral back in the appeal process
In the administrative process, according to § 144 VwGO, the Federal Administrative Court can decide for itself whether it decides on the matter itself or refers the matter back to the appellate court. As a rule, a remittal takes place if further findings on the matter are necessary in order to bring about a final decision. In the case of a jump revision, the court can, in deviation from the civil procedure, refer the matter back to the competent higher administrative court, which was previously skipped.
Referral back on appeal
For referral back in the appeal process, analogous to civil court proceedings, it applies in accordance with § 130 VwGO that this is only permissible upon application if the proceedings suffer from a significant defect and extensive evidence is necessary or the administrative court has not decided on the matter.
Referral back to the authority
The administrative court procedure enables the matter to be referred back to the competent authority in Section 113 (3) VwGO. This is an exception to the principle that the court has to decide on the matter itself and is primarily intended to prevent the authorities from passing on recognizable necessary findings to the courts.
The remittal presupposes that significant investigations are still necessary, i.e. extensive knowledge deficiencies up to and including a complete loss of knowledge are present, and that the cancellation is appropriate taking into account the interests of the parties involved. Since this form of referral means for the plaintiff that he will only be able to bring about a judicial clarification in several months, this means that the authority must be in a position to make the necessary determinations much faster than the court, and that from that a new decision is expected.
The decision by which the court refers the matter back to the authority can be contested with the normal legal means (appeal or appeal).
