Inquisitorial system

The official determination principle (also inquisitorial principle Inquisition maxim Official Duty to investigate ) states that a court or a public authority is obliged to issue that should be placed a decision is based, to examine of its own motion that is without application of an interested party or independently.

• 4.1 decision formula
• 4.2 further consequences 4.2.1 Public Liability
• 4.2.2 criminality

Characteristics

Administrative procedures

Here the term Principle of Investigation is common (§ 24 Administrative Procedures Act, § 20 SGB X, § 88 AO).

General and specific administrative jurisdiction

In administrative proceedings is called determination principle ( § 86 Code of Administrative Procedure, § 76 FGO, § 103 SGG ).

Criminal proceedings

In criminal proceedings, the principle of legality applies. Thereafter, the law enforcement agencies - public prosecutor, police, tax authorities and customs office - obliged to pursue crimes in the existence of an initial suspicion of its own motion. They have the duty to intervene. If you are requesting a criminal offense takes place only when a complaint is made ​​, unless the prosecutor makes use of the possibility to affirm the special public interest in prosecution. In offense the principle of legality is limited by the principle of opportunity: prosecutors and court proceedings for könnnen Gringfügigkeit no requirement under § 153 Code of Criminal Procedure without circulation or, if the weight of the debt does not preclude adjust to conditions or instructions pursuant to § 153a Code of Criminal Procedure.

Basically only state organs, particularly prosecutors and police are authorized to prosecute crimes ( ex officio proceedings ). The State with respect to the extent to which prosecution monopoly. At the same time Offizial principle realizes the constitutionally afforded equality before the law (Article 3, Section 1 of the Basic Law). An exception is the institution of private action under § 374 Code of Criminal Procedure is, in which the injured party without recourse to the prosecutor can pursue lighter offenses themselves. Further, the Inquisition maxim (principle of material truth ) pursuant to § 155 para 2 CCP. After that, the criminal courts are entitled and obliged at investigate and rule on the accused, indeed, a self-employed independent of the evidence submitted by the prosecutor or defense made ​​.

In the trial, the court is obliged to establish the truth of its own motion to extend because of the taking of evidence to all facts and evidence relevant to the decision of importance according to § 244 Code of Criminal Procedure. This duty of disclosure extends as far as to the court or at least the chairman from the file by pushing requests or suggestions or otherwise through the process became known facts on the use of evidence or lay it close. The court must all recognizable and meaningful ways to clarify the facts to pursue.

Civil jurisdiction

In civil proceedings applies when applying the Code of Civil Procedure of the Beibringungsgrundsatz, also called disposition maxim (principle of formal truth ). The courts base their decision only the arguments put forward by the parties and, if identified through the facts of evidence ( " Da mihi facta, dabo tibi ius. "). The parties to the extent " Men of the process ." The exceptions are but certain of marriage and filiation things placement procedure, registers affairs etc., for which the civil courts shall also have jurisdiction, the case but according to § 26 Law on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction ( FamFG ) the finding of the perform the material facts necessary investigations ex officio

A special feature is the labor court decision procedure where the court the facts in the framework of the applications made ex officio explored ( § 83 ArbGG ).

Importance

In the administrative and court proceedings at issue, there is a particular public interest in full and "real" collection of the assessed facts and the substantive decision to be taken.

Thus, the management process is not just for subjective judicial protection of the plaintiff, but is also always objective law complaint procedures to the extent that the administrative jurisdiction must inspect the structure of the separation of powers, the activities of the authorities in the public interest. In addition to the parties, therefore, takes a " representative of the public interest " to the process in part (§ § 35 to 37 Code of Administrative Procedure ).

In view of the current in the criminal presumption of innocence, the right to a fair trial and other basic values ​​of constitutional rank of the modern constitutional state may only punish the actual perpetrators and just punishment appropriate. This requires an independent and comprehensive examination of the facts ahead. ( § 244 para 2 CCP).

In matters of voluntary jurisdiction, regulated since 1 September 2009 at FamFG has always been considered the official operation principle of investigation ( Offizial operation), because it is there to administration similar proceedings in which legal interests of general interest such as child welfare, public security or public faith of eg trade registers at issue.

Content

In the official investigation, the Authority or the court determines the nature and extent of the investigation and is not bound by the pleadings and the evidence by the parties. All significant for the individual case circumstances, the low for the participants are taken into account ( § 24 para 2 the Administrative Procedure Act ). Especially in the criminal investigation, the prosecution has not only to determine the load, but also serves to relieve circumstances and for the collection of evidence to ensure feared the loss of which is ( § 160 para 2 CCP).

The official determination principle obliged [ to ] to make any investigation of the facts relevant to the investigation in the context of professional judgment. Although not need to be followed up every conceivable way. A reconnaissance and investigative obligation is, however, as far as the arguments of the parties and the facts as such, with careful examination give this occasion. The investigations are only completed if further investigations, a relevant, influencing the decision result is not expected.

Consequence of this obligation to comprehensive examination of the facts is a participation requirement for the parties to which the facts at issue is best known and which can therefore provide information on the best ( § 26 paragraph 2 the Administrative Procedure Act ). For authority or court, it is almost obvious to first ask the participants themselves to provide information.

In the social power law are still regulated further obligations to cooperate, participate as the obligation to appear in person, to undergo a medical or psychological examination or medical treatment or to a vocational integration measure in § § 60 et seq SGB I. If the person fails in his duty to cooperate under certain conditions can be denied the benefit claimed or be withdrawn ( § 66 SGB I). Limit for the duty to cooperate is always the reasonableness or proportionality.

Also in the taxation method, the taxpayer has to contribute to the clarification of the facts. about by the obligation to keep records, to submit tax returns or to cooperate in an external audit ( § § 90, 135, 140, 149, 200 AO). In default, for example, the tax base can be estimated ( § 162 AO), or there is even a misdemeanor or criminal offense (tax evasion, § 370 AO).

It can also be third parties obliged to cooperate, eg acc. § § 315 et seq SGB III employers to the Federal Employment Agency or acc. § 28a SGB IV employer and acc. § § 28m, 28o SGB IV employees against the collection agency for the total social security contribution.

Also in the administrative proceedings ( § § 86 Code of Administrative Procedure, 76 FGO, 103 SGG ) draws the Court, the parties to the investigation of the facts approach, in particular by the invitation to submit written comments, ie submit briefs that the parties then ex officio to are transmitted.

To further determine the hearing of witnesses, obtaining expert opinion, taking of appearances serve ( "Local Date"), certificates, enlisted records and exceptionally also the affidavit (§ § 26, 27 Administrative Procedures Act ).

No obligation to cooperate is of course in criminal proceedings, as no accused or defendant to strain yourself or something ( " Nemo tenetur se ipsum accusare. " ) Must contribute to his own conviction.

Error sequences

A violation of the official duty determination, ie an insufficient examination of the facts constitute a procedural violation.

Decision formula

Authorities may cancel their decision and replaced by a new, error-free process for appropriately justified opposition or objection. A procedural error of judgment can be lifted in appeal or review judgment and remanded to the lower court for further hearing and decision are (§ § 130, 144 Code of Administrative Procedure, § 126 FGO, § § 159, 170 SGG, § 354 Code of Criminal Procedure ).

Further consequences

Public Liability

If any person in the exercise of a public office entrusted to him as against a third official obligations, so does the employer basically compensate the third party be liable for damages ( § 839 German Civil Code, Article 34 of the Basic Law ). An example of such a public liability claim provides the decision of the Munich Higher Regional Court of 28 September 1995. Here the plaintiff's legal fees, which he had for the involvement of a tax advisor to ward off a tax bill in violation issued against the official determination of principle were to pay as compensation may damage awarded.

Criminality

Officials, especially officials and judges may commit an offense because of obstruction of justice in office, if they violate intentionally infringed the principle of legality by thwart it that another criminal law punished accordingly or already imposed a different sentence should be executed ( § 258 StGB ).