Concept and significance of the appellation
Die Appellation is a legal term derived from Latin, which is particularly significant in procedural law. Appellation generally refers to the lodging of an appeal against a judicial decision with the aim of obtaining a renewed review of the case by an appeal court. In many legal systems, the term ‘appellation’ is used synonymously with ‘appeal’, but it sometimes differs in its scope of application, procedure, and legal effects.
Historical development of the appellation
The origin of the appellation lies in Roman law, where it was introduced as a remedy against court judgments. Over the centuries, the principle of appellation was adopted and further developed in most continental European legal traditions. In particular, in French and German law, the appellation developed as a firmly established legal remedy in the court hierarchy.
Legal aspects and fields of application
Appellation in German law
In the German legal system, the term “Appellation” today is largely of historical nature; the term “Berufung” is most commonly used as its synonym (§§ 511 ff. ZPO). Nevertheless, the term can still be found in certain regional rules, especially in the Courts Constitution Act (GVG) and in the justice acts of the federal states. The term is also used in judicial parlance, as well as in commentaries and textbooks, to clarify the function of the legal remedy.
Procedure and requirements
An appellation enables the renewed review of a first-instance judgment by a higher court. The procedure typically includes the following requirements:
- Time limit: The appellation must be lodged within a statutory deadline (usually two weeks after service of the judgment).
- Form: The legal remedy must be submitted in writing and, as a rule, must be substantiated.
- Grievance: The appellant must be aggrieved by the judgment, i.e., the decision must have gone to their disadvantage.
- Court hierarchy: The appellation is primarily admissible against final judgments of the court of first instance; further appeals may be made through revision or other means.
Effect of the appellation
The effect of the appellation is suspensive (suspensive effect): the contested judgment does not become final with the filing of the appeal. At the same time, it generally leads to a complete or partial renewed review of the matter in both factual and legal respects (devolutive effect).
Appellation in international and European law
In international legal transactions and in some European countries, particularly in France, Switzerland, and Italy, the appellation remains a term denoting appellate proceedings. The regulations vary by country and feature specific national characteristics:
- France: The appellation is the central legal remedy against judgments of first-instance civil courts and leads to a complete retrial before the ‘Cour d’appel’.
- Switzerland: In the Swiss Code of Civil Procedure, “Appellation” refers to an appeal to the higher court; in some cantons, there are differing rules.
- Italy: The “Appello” is provided as the classic legal remedy against first-instance judgments.
In international arbitration proceedings, appellation refers in individual cases to a special review of arbitral awards, provided that the arbitration rules allow for it.
Appellation and related legal remedies
Difference from revision
Revision, in contrast to appellation, is limited to the review of legal errors. While the facts of the case can be examined anew in the course of appellation, in revision only the judgment is analyzed for legal errors.
Difference from complaint
The complaint is among the other, less extensive legal remedies and is directed against certain judicial decisions that do not constitute final judgments. In contrast, the appellation regularly applies to final judgments and provides for a full review by the appeal instance.
Legal consequences and significance of the appellation
The appellation represents a fundamental constitutional element of the judicial instance system. It guarantees the review of judicial decisions and provides legal protection by enabling alleged errors to be submitted to a higher instance for review. Finality of the decision is only reached upon completion of the appellate procedure.
Literature sources and further reading
- Code of Civil Procedure (ZPO)
- Courts Constitution Act (GVG)
- International and European procedural codes
- Legal dictionaries and commentaries on procedural law
Summary
The appellation is a significant legal remedy that allows the review of judicial decisions by a higher court. It differs from other legal remedies by its scope and effects. Designed differently across various legal systems, it appears either as an appeal or with its own procedural characteristics and ensures review and control of judicial judgments in the appellate process.
Frequently asked questions
Who is entitled to file an appellation and how is the right to appeal examined?
Typically, only the parties to a legal proceeding whose interests are directly affected by the contested judgment are entitled to file an appellation. In addition to the formally involved parties, third parties may also appeal if their own rights have been withdrawn or impaired by the court judgment. The right to appeal (so-called grievance) is limited by the principle of need for legal protection: The party must be actually and presently disadvantaged by the earlier judgment. In civil proceedings, it is sufficient if the judgment does not correspond to the main claim or falls short of the claims presented. In criminal cases, the accused is generally entitled to appeal, as long as the judgment is to their disadvantage, as is the prosecution. Co-plaintiffs may also appeal if they are affected by the decision. The court examines ex officio whether the right to file an appellation exists before addressing the substance of the appeal.
What deadlines must be observed when lodging an appellation?
The deadlines for filing an appellation are strictly prescribed in the respective procedural law and are generally not extendable. In Switzerland, for example, the period is 10 days from receipt of the full written judgment in criminal cases pursuant to Art. 311 (1) StPO, and usually 30 days in civil cases under Art. 311 ZPO. These periods begin when the written judgment, including reasons and instructions on legal remedies, has been duly communicated to the appellant. Only in exceptional circumstances, under the strict conditions for reinstatement pursuant to Art. 148 ZPO or Art. 94 StPO, can missed deadlines be excused. The appellation is declared by a formal submission (statement of grounds) to the competent appellate court, with compliance with the time limit being crucial.
What formal requirements apply to the appellation?
Appeals must generally be filed in writing. Depending on the jurisdiction, different requirements apply to the content of the statement of appeal: in addition to specifying the contested judgment and the appeal application, the precise grounds for appeal must usually be set out according to the relevant procedural law. In particular, it must be clear which aspects of the judgment are challenged and what changes are being sought. In some systems it is possible to register the legal remedy first and submit a detailed statement of reasons later. The statement must be personally signed by the party or their representative and timely submitted to the competent appellate court. A proper statement of appeal is a mandatory requirement for admissibility; defective statements of remedy regularly lead to dismissal.
What effects does a timely filed appellation have?
A timely appellation is generally suspensive, i.e., the contested judgment does not become final for the time being and is not enforceable until the appeal instance has rendered its decision. In civil proceedings in particular, the appellation suspends the enforcement of enforceable titles; in criminal proceedings, the accused initially remains unpunished. This applies unless diverging legal provisions exist (for example, in the case of security measures or partial enforceability despite an appeal). In substance, the appeal instance is usually entitled to a full review of both law and facts (the so-called devolutive effect), so that both factual and legal questions can be reconsidered, provided the law so permits. In some proceedings, it is possible to extend or limit the subject of the dispute.
Under what circumstances can the appellation be withdrawn or waived?
A party may generally withdraw its appellation until a final decision has been made on the legal remedy, thereby making the original decision final. Waiver of the legal remedy is possible even before the expiry of the period for appeal, provided it is declared expressly and unequivocally, for example, by a statement recorded by the court clerk or by written submission. The withdrawal or waiver is binding and cannot be challenged, provided that all appellants or affected parties have so declared and no legitimate interests of third parties oppose. After acceptance of the withdrawal by the appellate court, the appealed judgment becomes final and enforceable to the extent that it is no longer contested.
What are the cost implications of lodging an appellation?
Lodging an appellation usually leads to additional court costs for the parties and may also result in higher attorney fees. The cost burden largely depends on the outcome: the losing party generally bears all costs; in the event of partial success, the costs are split accordingly. Special rules govern to what extent cost exemption is possible in individual cases (e.g. legal aid). If the legal remedy is deemed manifestly without prospect of success, a cost or fee increase may be imposed on the appellant. In exceptional cases, especially if the appeal is withdrawn, it may be possible to keep the costs lower if the proceedings are terminated quickly.
To what extent does the appellate court review the judgment during the appellation?
Within the framework of appellation, most legal systems provide for a renewed review in both factual and legal terms (full appeal). The appellate court is therefore not bound by the findings of fact from the first instance and may admit new evidence if submitted in due time. However, the appellate court’s scope of review may be limited by the appeal petitions and by statutory restrictions. In cases governed by special laws—e.g., appeals in so-called small claims—a limited review of legal questions (partial appeal) is provided. However, the court is always bound by the prohibition of reformatio in peius, where it is provided by law: this means that, in principle, the appellant’s situation may not be worsened, unless the opposing party has itself also lodged a cross-appeal.
