reformatio in peius

Reformatio in peius ( permissible orthographic also lowercase, from Latin Reformatio - change peius - the worse; German terms: deterioration, vilification ) is a legal term. It means that

  • The administrative act of an administrative authority to a contradiction by the addressee of the administrative act out (not in a third party ) is designed burdensome by the reviewing authority or
  • The judgment of a court of appeal or revision is burdensome.

Germany

Civil and criminal

In civil proceedings the Reformatio in peius is only permitted if the other party has also lodged an appeal.

In Criminal Procedure, this applies to a procedural situation: The Prosecutor's Office has a dual role. If it finds that an appeal lodged in favor of the accused, a refor in peius is prohibited, as in an appeal against an order of punishment if the appeal pursuant to § 411 paragraph 1 sentence 3 Code of Criminal Procedure is limited to the amount of the individual daily rate.

Administrative procedures and process

Authorities

Appeal is brought against the administrative authority of a contradiction, then he will - if the output authority does not rectify the contradiction - reviewed by the reviewing authority that an issues notice ( jurisdiction by virtue of precedent conditional devolutive ). It is undisputed that the initial authority may not be provided with an additional appeal the administrative act in opposition proceedings. You can only remedy this contradiction. It is very debatable whether the appeal decision from baseline notice must include an additional independent complaints.

Distinct from the first-time complaints

If the reviewing authority makes a decision that is more burdensome for the appellant against the original decision is either a case of Reformatio in peius or self occurrence into account. No vilification occurs when the appellant is not in addition, but for the first time in the appeal decision complained in a new administrative act, which may be connected with the appeal decision. To be differentiated according to whether the appellant is high ( then: first-time complaints ) or quantitatively ( then: additional complaints ) is additionally obliged. In a first appeal the reviewing authority shall act as factually responsible authority on the occasion of the opposition proceedings.

State of opinion

The following aspects must be considered:

  • According to § 88 Code of Administrative Procedure shall apply, that the court is bound to the request of the applicant ( ultra petita ); Accordingly, one might think that the reviewing authority is bound by the contradiction of the opposition leader. You could remedy only the application under appeal ( partial). This view is contrary to that § 88 Code of Administrative Procedure shall apply only to legal proceedings from the first instance. The opposition procedure is legal because of its dual nature, but also an administrative procedure. The very fact is clear that the opposition procedure is not perceived by a court verdict chamber, but by an administrative authority. Even if the opposition proceedings are qualified only as a judicial Vorschaltbehelf ( which is hardly justifiable ), would the Code of Administrative Procedure § 88 to § 79 paragraph 2 Code of Administrative Procedure contrary, apparently emanating from the possibility of vilification.
  • When the admissibility of vilification by the appeal decision is to be feared that the person concerned will deterred from the use of contradiction. This could limit the effectiveness of legal protection ( Article 19 paragraph 4 of the Constitution ).
  • Not to be the confidence of the opposition leader worse than he would if he had not initiated the opposition proceedings, is not worthy of protection. From effectiveness of the administrative act, the addressee has a kind of " entitlement" to the future enforceability of the decision because the agency can not unilaterally prevent future legal validity of an administrative act (apart from § § 48 et seq Administrative Procedures Act, which even after achieving power for the authority available). This position has the opposition leaders themselves abandoned by he has given notice of opposition was the matter by the reviewing authority for reconsideration decision.
  • The reviewing authority has a comprehensive legal and perform expediency control. Due to the association of the management of the law (Art. 20 para 3 of the Basic Law ), the reviewing authority must also have the possibility of the opposition leader detriment to decide.
  • Although § 79 paragraph 2 Code of Administrative Procedure is apparently based on the admissibility of a refor in peius; lack of regulatory context at the federal level and at the state level legislative jurisdiction, § 79, paragraph 2 Code of Administrative Procedure may regulate the admissibility of vilification only insofar as that the opposition proceedings is affected as a process Vorschaltbehelf. As far as the opposition proceeding is an administrative procedure, § 79, paragraph 2 Code of Administrative Procedure is irrelevant. § 79 paragraph 2 Code of Administrative Procedure therefore does not govern whether the authority which is responsible for the adoption of an assessment notice verböserten contradiction in the matter. Only if the management procedure law, the authority which is responsible for the adoption of the relevant assessment notice in the matter at the same time, it can verbösern him.

The prevailing opinion in accordance with § 79 paragraph 2 Code of Administrative Procedure governs only the procedural consequences of vilification in the event that after the administrative procedure law, a vilification is permitted. This is the case if the reviewing authority is authorized to act in the matter to the citizen. What the jurisdiction of the authority which gives the citizen to pay an independent additional complaints in the matter must be assessed differently.

The dominant view today following the Federal Administrative Court and then looks at differences of output and reviewing authority, the reviewing authority for vilification by the appeal decision in the matter jurisdiction if it is technical supervision authority of the output authority simultaneously. The authorization to intervene in the rights of the citizen is given by controversial opinion either analog from the rules of revocation and the revocation of administrative acts or the same intervention basis, which is the output authority into consideration.

Action against the verböserten appeal decision

Against the Reformatio in peius by the reviewing authority, the appellant can fight back through legal challenge. The admissibility has the following features:

  • Instead gorgeous suit style: It has to be clarified according to the head of claim ( § 88 Code of Administrative Procedure ) whether the plaintiff is charged with a first-time complaints ( § 79 para 1 Code of Administrative Procedure ) or with an additional appeal by the opposition decision ( § 79 paragraph 2 Code of Administrative Procedure ). In the former case the subject of legal challenge is always the administrative version of the decision. In the second case the plaintiff the initial decision and the appeal decision or just the appeal decision can attack.
  • Pre-Trial: Against the appeal decision may not be appealed further. The legal concept of § 68 Section 1 No. 2 Code of Administrative Procedure - especially the self-control of the executive - is also extended to cases of § 79 paragraph 2 Code of Administrative Procedure.
  • Action opponents: If the initial decision and the appeal decision be attacked, be suit opponents of the legal entity, authority, which issued the initial decision. If only the appeal decision is attacked, the legal entity of the reviewing authority 's action opponents.

In the substance of the following features are observed:

  • Formal legality: In the jurisdiction is in principle a distinction between " Reformatio in peius " and the " own name " to make. In its own name the protest was only the occasion for the burdensome regulation. The reviewing authority shall adopt its own administrative authority in place of the output. This they must only if it is legally authorized to do ( was the initial authority so the decision did not rely ) (because the output authority incorrectly or not executed ), or adopted by it in its original administrative responsibility lies. When Reformatio in peius the reviewing authority shall, within the opportunities provided by the contradiction audit framework. The reviewing authority is only responsible for the deterioration when she was starting service, or is subject to the authority of their starting times supervisory referral.
  • If only the appeal decision is attacked, the initial decision should not be checked (→ ultra petita )
  • Authorization procedure: § 68 Code of Administrative Procedure, although authorized in a formal way, the reviewing authority for full examination of the output Bescheides, there is no substantive legal basis for the deterioration. It is in dispute, what is engagement basis in these cases. One view, the deterioration can be seen as a partial termination of the initial decision. Therefore, the special lifting standards of the special administrative law or subsidiary, § 48 and § 49 are the respective Administrative Procedure Act as an engagement empowerment. According to the prevailing opinion, probably the deterioration shall be based on the general authority of the initial decision. Argument for this is the wording of § 68 Code of Administrative Procedure: "Legal and appropriateness test "

Procedurally, a hearing regarding the deterioration in all cases is required pursuant to § 71 Code of Administrative Procedure.

By courts

A Reformatio in peius by administrative courts is strictly prohibited. Exceptionally, it is permissible in the following cases:

  • At a counterclaim ( § 89 Code of Administrative Procedure )
  • Where misguided application of a necessary fellow soldier ( § 64 Code of Administrative Procedure )
  • In a necessary parties summoned deviant application ( § 66 sentence 2 of Code of Administrative Procedure )
  • In cross-appeals ( § 127, § 141 Code of Administrative Procedure )
  • In the absence of process conditions and still order issued decision in the first instance, the Court of Appeal, the output decision may completely cancel and decide if any further examination of the facts is necessary, and fact-finding and / or evidence to the process requirements is of course permitted or
  • Refer the matter back to the court of origin

Financial trial

In the proceedings before the tax courts should not be verbösert ( § 96 FGO ).

Social trial

The arrangements for administrative courts shall apply mutatis mutandis in the social process ( § 123 SGG ).

Employment tribunal process

In the proceedings before the labor courts, the same principles apply to the referral in § 46 Section 2 Sentence 1 ArbGG as generally in civil proceedings.

Patent Procedure

Austria

In the Austrian tax law means the prohibition of deterioration that less favorable treatment may occur by a supreme court legal interpretation in the tax impact.

The deterioration clause of § 117Vorlage: § / Maintenance / RIS Find the Federal Tax Code ( BAO ) was repealed by the Constitutional Court as unconstitutional.

Switzerland

In civil proceedings, the prohibition applies in the refor peius. It is a manifestation of the MRP Transportation maxim. Durchbrochen this principle is validity of the ex officio proceedings ( disputes concerning child maintenance payments) or if the counterparty is a cross appeal made ​​pursuant to Art 313 E ZPO.

In the Military Criminal follows an appeal against a parking ticket due process before a military court in which a refor is allowed in peius.

Non ultra petita Federal Administrative Court of Germany
676128
de