Preliminary injunction

Under provisional legal protection (including interim relief or partly incorrect, but common emergency procedure ) is the ability to effectively protect individual rights before a decision in the main proceedings. The recourse to a court in the main proceedings is not sufficient for an effective remedy when it is feared because of the length of the proceedings, that until the decision on the merits, the contested law will finally shortened or the infringement was continuing. The possibility for the time being to prevent any violation of the law can either be determined by law, as are also arranged by an authority or by a court. While statutory injunctive relief limited to have a suspensory effect appeals or remedies ( suspensive ), also shaping schemes can be achieved by applications.

General

The interim legal discharge is the fundamental right to effective judicial protection, Article 19 of the Basic Law IV.

All forms of interim relief in common is that they do not make a final decision and even if only temporarily creating a fait accompli not permit ( general prohibition of anticipating the main thing). Interim measures may be claimed only as long as a right in the main, is asserted or (even ) may be invoked (so-called latent accessoriness for interim relief ). Basically interim relief is granted in all areas of law.

In preliminary legal protection by a court of the standard of review is reduced ( so-called summary examination ) and the type of exposition deviates from the main action. The court may also decide without a hearing or any other hearing and shorten deadlines. The need to accelerate the process does not usually to carry out a formal evidence ( witnesses, site visit, expert opinion ). Determination is generally based on the presented or known facts and the facts substantiated by the applicant, in such cases, is allowed to consider an affidavit.

Demarcation

The interim relief is to be distinguished from preventive legal protection, which is designed to prevent even before the emergence of legal positions that these rights can not or only with great difficulty or unreasonable penalties will be enforced later. Case in point is the planning law, is referenced in the on a preventive injunction in order not to hinder subsequent planning steps. For this, however, are generally not an emergency procedure available. Empowered action we will rather only so long threatens a violation of a legal and not entering, but specify initial planning and development steps a recognizable level inclination and are still subject to appeal.

Civil Procedure

In civil proceedings may injunctive relief be obtained by:

  • Arrest (§ § 916 ff ZPO)
  • Injunction ( § 890, § § 916 to § 945 ZPO, in particular: § § 935 ff, § 940 ZPO)
  • Interim measures.

Detention

The arrest serves to secure the foreclosure because of an outstanding debt. Most common form is the " seizure of assets " (§ 917 ZPO), which can be arranged, would be if without the imposition thwarted the enforcement of any provisions adopted under the normal procedure judgment or substantially more difficult. The decision is then that is placed because of a certain ( according to reason and the amount to be designated ) money demand the seizure of assets in the assets of the defendant. The seizure of assets is adopted Enforcement and allowed the execution by attachment of movable property or the registration of a collateral mortgage of land, but only for purposes of backup, while a recovery of seized items is excluded because of the arrest.

Injunction

The injunction is the preliminary decision of the court in summary proceedings, which serves to secure a non-monetary claim until the final decision. It is governed by 942 ZPO § § 935 to §. The injunction is to secure the right to any particular dispute ( § 935 ZPO ) ( backup available ) or the law of peace ( § 940 ZPO ) ( scheme available ).

The injunction is therefore adopted under the following conditions:

Both the claim and the available base on which it relies. For this, the applicant is in addition to the five provided in the main proceedings evidence is limited to evidence -present, also the affidavit available (§ § 920, Section 2, § 294 ZPO).

Is an injunction to fear the enemy can bring in advance by Leave a safety signature in the upcoming as being competent in question courts its position to the court at an early stage to be heard. If the injunction was issued, the defendant may reach by contradiction, that the judgment of the interim measure oral argument and decide by judgment.

An injunction is - unlike a judgment in the main action - delivered not from attending to the opposing party, but must be delivered by the applicant himself by means of a bailiff, within one month after the adoption to be enforceable to be ( delivery in party mode, § 936, § 922 para 2, § 929, paragraph 2 ZPO). If the execution made ​​before delivery, 2 Code of Civil Procedure pursuant to § 929 para 3 of the Code, delivery within seven days after the execution and before the expiry of the one month period pursuant to § 922 para be made. This is an exception to the basic provisions of § 750, § 751 ZPO, which, inter alia, may be enforced only when the judgment or the enforcement order has been delivered.

If it appears that a preliminary injunction is unjustified (cf. § 945 ZPO ), the opponent can do against the applicant makes a claim for damages. This applies even if the claimant is not at fault. For this reason, obtaining an injunction always a cost risk for the applicant dar.

If the contents of the available in the omission of an act or the toleration of the act, it can be enforced by administrative fine or imprisonment. This order means to threaten before. The allowable frame is 250,000 euros or six months imprisonment, the penalty imposed total detention period may not exceed two years.

Simple formulation in the application: " on pain of administrative fine of up to 250,000 euros, alternatively, order detention or imprisonment up to six months "

However, the threat of this frame does not say anything about the amount of actual expected order agent. The condemnation to an administrative agent requires the implementation of a new method (see § 890, § 891 ZPO).

Interim measures

In addition to arrest and injunction are available in different types and stages of the procedure even interim relief in the form of interim relief, as under appeal decisions ( § 570 ZPO ) and in process of foreclosure ( § 707, § 719, § 732, § 769, § 770, § 771, § 805 ZPO).

Labor court procedures

In the labor court procedures in accordance with § 9 Arbeitsgerichtsgesetz ( ArbGG ) the so-called acceleration principle. The proceedings before the labor courts are always to accelerate because of the particular importance of employment and labor income in the main proceedings, in particular the inventory disputes. If due to the location of the individual case and this acceleration is not sufficient, the same procedure as in civil proceedings is available, because the Code of Civil Procedure is applicable according to § 46 ArbGG also in the labor court procedures. Of importance here are in injunctions to enforce the holiday entitlement and of salary, as well as the continued employment according to claim recovered dismissal process in the first instance.

Non-contentious proceedings

There are interim measures by interim relief in proceedings under the Condominium Act in accordance with § 44 paragraph 3 WAY and in the context of appeal proceedings pursuant to § 24 para 3 FGG aF With the amendment of the WEG WEG method has been the FGG withdrawn. Since 1 July 2007 WEG matters to be decided in civil proceedings; ie, that in this respect the injunction and not the temporary injunction is the proper procedure.

Provisional measures may be taken in specific types of proceedings after FamFG by interim measures, as in family disputes ( § 119 para 1 FamFG ) in childhood stuff § 157 FamFG in force protection matters ( § 214 para 1 FamFG ) in matters relating to maintenance ( § 242 FamFG ), in care matters ( § 300 to § 302 FamFG ) and in accommodation matters ( § 331 FamFG ).

Criminal

In Criminal Procedure, it largely therefore no need for interim relief, because criminal judgments can be enforced only when they have become res judicata.

With regard to the most engaging provisional measure, pre-trial detention, is ensured by appropriate provisions in the Criminal Procedure Code that will be decided shortly and next into periodically at any time can take place a new habeas corpus at the request of the person concerned ( § 115, § 115, § 117, § 118 Section 5 Code of Criminal Procedure ).

In appeal proceedings ( § 307 para 2 CCP) and in some specific decisions ( § 360 para 2 or § 458 para 3 Criminal Procedure Code ), there is the possibility to suspend the execution of a decision or to make an interim order.

As a special kind of interim relief of an injured by a criminal offense items can by law enforcement agencies in the interest be seized in order to assist the injured in the pursuit of claims for compensation ( recovery aid, see § 111b para 5, § 111h, § 111i Code of Criminal Procedure ).

Appeals from judicial administrative records

Injunctive relief in the way analogous application possible - in the trial of Judicial Administration Act ( § 23 to § 30 EGGVG ) is lack of regulations in EGGVG - albeit controversial. In particular, refers to § 29 paragraph 3 EGGVG on the FamFG, especially § § 71 et seq FamFG.

Administrative jurisdiction

Against an administrative act which engages rights of the citizen, injunctive relief is usually already granted by the law. The citizen is in principle protected from immediate enforcement of such acts of administration, once he formally takes action against them. Objections to and appeals have suspensive effect ( § 80 para 1 sentence 1 Code of Administrative Procedure ).

The administrative power is the suspensive effect provisionally enforceable or not enforceable, although it is effective to comply with the notification and. Also other legal or factual conclusions may not be drawn from the administrative (eg, fines ).

The principle of § 80 paragraph 1 Code of Administrative Procedure is often broken in practice ( § 80 paragraph 2 APC):

  • At the request of public charges and costs (eg infrastructure contribution, even in municipal taxes)
  • In urgent arrangements and measures of law enforcement officials ( This also includes traffic signs and traffic control. )
  • Relate to others by federal law or state law by state law prescribed cases, particularly for contradictions and third party complaints against administrative acts, investment or job creation
  • With measures of administrative enforcement (eg fixing a penalty payment ) when provided by the State legislature
  • In other cases, where the Authority has especially ordered the immediate enforcement of overriding public interest or in the overriding interest of an interested party (eg, an order to cut down a rotten tree ). In these cases, the overriding public interest or the interest of the majority parties must be special reasons ( § 80 paragraph 3 Code of Administrative Procedure ). The reasoning must not only exhaust in a mere reproduction of the law or merely formulaic twists itself, but rather a case-specific explanation is required. Also a reference to the reasons for the administrative enough not regularly ( otherwise may at security measures ). The arrangement of the immediate enforcement is itself not an administrative, although the legal requirements are for actually met. The purpose, however, speak against the assumption of an administrative act, otherwise a spiral effect would be set up as well against this arrangement again appeal with suspensive effect could be inserted.

The authority which has issued the administrative act and the reviewing authority may, if the objection pursuant to § 80 paragraph 2 Code of Administrative Procedure law or by official order has no suspensive effect, the immediate compliance suspend ( § 80 paragraph 4 Code of Administrative Procedure ).

In the administrative procedural law injunctive relief at the request shall be granted by the court which has to decide on the main action or to decide would ( trial courts ). A distinction must be:

  • Suspensive effect of Objections to and appeals, if it is not originally given, so the rule of § 80 paragraph 1 Code of Administrative Procedure does not apply ( § 80 Section 2 Sentence 1 No. 1 to 3, § 80, paragraph 5, § 80a Code of Administrative Procedure ),
  • Restoration of the suspensive effect, if it was previously removed ( § 80 Section 2 Sentence 1, No. 4, § 80, paragraph 5, § 80 a Code of Administrative Procedure ),
  • Determination of the suspensive effect ( § 80 para 5 Code of Administrative Procedure analog), where the Authority denies the occurrence of the suspensive effect, because it considers that the opposition is filed out of time,
  • Interim measures in all other cases ( § 123 APC): It is necessary to distinguish two Code of Administrative Procedure for adoption of a measure between the fuse assembly according to § 123 paragraph 1 sentence 1 Code of Administrative Procedure for the preservation of the status quo and the control arrangement in accordance with § 123 paragraph 1 sentence.

Also in the process of judicial review of interim relief is given by a temporary injunction ( § 47 para 6 Code of Administrative Procedure )

Financial Court Proceedings

The legal situation is similar in the administrative court process. However, the court orders in enforcement enabled modesty not have suspensive effect on, but the suspension of enforcement of the tax assessment notice ( § 69 para 2 FGO ). Be preceded by needs - similar to levy modesty, their verification is carried out by the administrative courts (see above § 80 paragraph 6 Code of Administrative Procedure ) - a previous application to the financial authority (§ 361 AO), which is unsuccessful ( § 69 para 4 FGO ).

A suspension of enforcement of the case if the tax or liability decision has become final ( non-appealable ), for example, because the appeal period has expired without an appeal has been lodged. Then there is no grant of the stay of execution on grounds of fairness into consideration. A stay of execution for undue hardship is ruled out when there is no doubt as to the legality of the contested administrative exist. (FG Munich on 7 October 2004, 6 V 3036/ 04, nv, Juris further references). Possible stay deferral requests.

If there is no prerequisite efficient administrative act (rejection of deferment and remission, or a refund sought after ), only the interim order comes under § 114 FGO into consideration.

Social Court Proceedings

Interim measures in social justice is configured similarly as in administrative proceedings ( § 86a and § 86b SGG ).

Proceedings before the Federal Constitutional Court

In proceedings before the Federal Constitutional Court, an interim order pursuant to § 32 Federal Constitutional Court Act be adopted.

Examples of interim measures

  • Prohibition order, the Constitutional Court, 1 BvQ 4/06 of 27 January 2006, paragraph no. (1 - 38)
  • Security arrangement, the Federal Constitutional Court, 2 BvQ 70/ 03 of 18 December 2003, paragraph no. (1 - 11)
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