Objection (law)

The objection is a special remedy which can be inserted in various administrative proceedings or judicial proceedings or against certain administrative acts.

German law

The objection is given in German law in particular

  • Against a default judgment, § 338 Code of Civil Procedure ( ZPO)
  • Against an enforcement notice, § 700 ZPO in conjunction with § 338 ZPO
  • Against a penalty notice for misdemeanors, § 67 of the Code of Administrative Offences ( OWiG )
  • Against an order of punishment, § 410 Code of Criminal Procedure ( CCP)
  • Against tax assessments and other administrative acts of the tax authorities, § § 347 et seq Fiscal Code ( AO).
  • Against patents within the opposition period ( 3 months Germany, Europe 9 months), § 59 Patent Act ( IPA), Article 99 of the Convention on the Grant of European Patents ( EPC)

Must be distinguished from the appeal of the employee at the council against an employer- side termination of employment pursuant to § 3 Cancellation Protection Act ( Consumer Protection Act), but which is not sufficient to safeguard the rights against the dismissal and therefore in practice plays a minor role ( for law respecting an action brought required at the labor court within three weeks after receipt of the notice ).

The appeal in tax law (§ § 347-367 AO)

The appeal is within one month after notification of the administrative act ( opposition period, § 355 paragraph 1 AO ), in incorrect or omitted instruction within one year ( § 356 para 2 AO ), in writing to collect or to explain to the transcript ( § 357 Abs. 1 p 1 AO ).

Empowered objection is acc. § 350 AO by the administrative Complained. In a tax assessment, this is always the taxpayer as content addressee. Opposition to power in standard, separate findings see § 352 AO, to appeal authority of the successor see § 353 AO.

Thus, an appeal is successful, he must be permitted to be admissible and well founded:

  • Instead of prison, he is especially against administrative acts in duty matters, so against tax assessments ( § 347 paragraph 1 sentence 1 No. 1 AO), the tax assessments are treated as administrative decisions and other administrative acts by the AO.
  • Permitted he is, if that can make a right or Ermessenswidrigkeit asserted by the administrative act or its omission patients and a need for legal protection has, so the concern can not be upheld in a simpler way than the opposition ( application order to the Tax Code, Tax Code Application Decree to § 350 No. 6 Abs. 1).
  • Are the two conditions that the contested administrative act is finally physically inspect on its legality ( merits ).

Often, the taxpayer can appeal to an already pending case and request the suspension of the proceedings:

  • Pursuant to § 363 Section 2 Sentence 1 AO if a process is pending over the issue before a Tax Court (FG) - in this case, the tax authorities a discretion in deciding on the suspension of the proceedings;
  • According to § 363 paragraph 2 sentence 2 AO, if because of the constitutionality of a statute or because of a legal issue proceedings before the ECJ (European Court ), the Federal Constitutional Court ( Bundesverfassungsgericht ) or a supreme federal court (usually Federal Fiscal [ BFH ] ) is pending - in this case, the method rests mandatory.

Through the appeal, the execution of the administrative act would not normally be inhibited ( § 361 para 1 AO ), so that, if necessary, tax payments are to continue to make. The suspension of the tax payment can be achieved in special cases by requesting a stay of execution ( § 361 para 2 AO). In case of rejection, the Tax Court can acc. Be called § 69 FGO ( § 361 para 5 AO).

Austrian law

Under Austrian law, there is the objection

  • Against a conditional payment order in civil proceedings ( § 248Vorlage: § / Maintenance / RIS search of Civil Procedure ( Austria ) );
  • Against a penal order in administrative proceedings ( § 49Vorlage: § / Maintenance / RIS - Search WHT ).

The appeal is to be introduced within two weeks with the authority that issued the injunction. An objection may be made orally or in writing and sets the beeinspruchten parts of the penal overridden. May be objected both only the criminal level as well as individual items or the entire available. The reaction of the authorities it is either the termination of the proceedings or the initiation of due process. This must be the accused an opportunity to receive justification ( § 40Vorlage: § / Maintenance / RIS - Search WHT ), if one has not already included in the appeal. This is done by request for a written opinion or summons to attend oral hearing. The following penal no higher penalty shall be imposed as in the beeinspruchten penal order. However, there are 10 percent of the penalty to be paid as court costs.

Furthermore, there is the objection to the grant of a patent ( § 102Vorlage: § / Maintenance / RIS search Patent Law). This must be filed within four months from the date of publication of the grant of the patent in the Patent Gazette, if the object of the patent does not meet certain requirements for a grant.

Law of the United States

Also in American court cases brought against an improper questioning of witnesses objection ( " Objection " ) is translated into German as " opposition ".