Declaratory judgment

The declaratory judgment action is a suit style of German law. Positive declaratory relief and declaratory judgment lawsuit intended to obtain a declaration regarding the existence or non-existence of a legal relationship, such as a contract. The invalidity declaratory action should be to determine the invalidity of an administrative act.

Civil law

In the civil action for declaratory judgment, the goal is to have it established between the parties to a dispute the existence or non-existence of a legal relationship or the genuineness or spuriousness of a certificate by a civil court. Accordingly, a distinction between negative and positive declaratory action. Another case is the interim declaratory action, which may be relevant if the plaintiff ( initially) einklagt only a part of his claim. The interim declaratory action may be brought by the applicant together with a power suit or subsequently, also the defendant in the form of an interim determination counterclaim.

The court's decision includes, when a declaratory judgment is upheld, only the coveted determination and requires the losing party with no specific enforcement enforceable behavior. It can only be collected if on the part of the plaintiff a legal interest in the alsbaldigen determination is made (so-called declaration of interest ). The finding is also interested to exhaustion of remedies, especially in subjective violation of fundamental constitutional rights.

The internationalization of economic relations also leads increasingly to European parallel proceedings within the scope of which came into force on 1 March 2002 EC Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation Brussels I ). There is true - in contrast to the scope of the Code of Civil Procedure ( ZPO) - a Rechtshängigkeitssperre for subsequent actions with the same core point ( focal point theory ), such as in favor of the temporal priority otherwise cases brought negative declaratory action. A previously levied negative declaration leads to the ( not shown here ) jurisprudence of the ECJ in particular in terms of Tatry / Maciej Rataj to Rechtshängigkeitssperre for entitlement to an action for performance by the claimant. This running more danger that interrupt the limitation period effect of bringing an action for performance not being able to bring about ( at home or abroad).

The legal basis is in civil proceedings § 256 ZPO, which in the other branches of the court declaratory action quite a subsidiary measures (ie additional ), acceptable and effective legal instrument for bidding exhaustion of remedies is.

During the collection of positive declaratory action unfolds suspensory effect in favor of the creditor, this is true for negative declaratory relief not to ( see § 204 BGB). Regarding the burden of proof, however, no differences arise. Since this is assessed by the substantive able to prove both the positive and in the negative declaratory action in each case the creditor who is a defendant in the first case, plaintiff, in the second case, that the disputed legal relationship.

Administrative Law

Legal basis in administrative court proceedings § 43 Administrative Procedure Code (APC ):

In addition to the general declaratory relief pursuant to § 43 Code of Administrative Procedure example, there is also the continuation of a declaratory judgment pursuant to § 113 paragraph 1 sentence 4 Code of Administrative Procedure for determining the illegality of completed acts of administration, and the particular action for declaratory judgment under § 16 VereinsG to determine the legality of a club ban.

Tax law

The tax declaratory action is governed by § 41 Finanzgerichtsordnung ( FGO ). They are available both in the form of affirmative action for annulment as well as in the simple declaratory action. The declaratory relief in tax law are a marginal phenomenon, because in most cases, taxpayers seek legal redress against administrative acts and impose onerous legal challenge.