Concept and Nature of the ‘Decision’ in Law
The term ‘decision’ holds a central and multifaceted meaning in the legal context. It refers both to the formal act of applying the law by a state or private decision-making body and to the legal outcome of this act, which regularly produces legal effects. Decisions are found in virtually all areas of law: they shape judicial proceedings, administrative practice, as well as the corporate and private law spheres. The following sections present the various legal dimensions, forms, and effects of decisions in a comprehensive manner.
Decision in Judicial Proceedings
Types of Judicial Decisions
In the judicial context, the term ‘decision’ encompasses all rulings issued by the court in the course of proceedings that have direct or indirect legal effect. These can be classified in particular as follows:
Judgment
The judgment is the best-known and typically most significant judicial decision. It is issued at the end of a contentious proceeding and conclusively resolves the matter in dispute through legal determination, performance, formation, or declaration of rights and obligations (§§ 300 et seq. ZPO).
Order
The order serves to regulate procedural or final matters and is applied, for example, in family law, criminal procedure, or in interim legal protection (§§ 128, 916 et seq. ZPO, §§ 34, 119 GVG).
Decree
Judicial decrees refer to internal instructions of the court, which primarily serve the organization and management of proceedings, but generally do not have direct legal effects externally.
Formal and Substantive Res Judicata
Judicial decisions have the force of law. Formal res judicata occurs when a decision can no longer be challenged by regular legal remedies. Substantive res judicata binds both the parties and the court to the decision on the same subject matter.
Decision in Administration
Fundamental Significance
In administrative law as well, the ‘decision’ represents the central enforcement element. It usually manifests as an administrative act (§ 35 VwVfG). This act creates directly binding legal consequences when regulating an individual case.
Administrative Action: Administrative Act and General Decree
- Administrative Act: Individual decision with respect to a specific person or matter.
- General Decree: Decision with effect for a specific or determinable group of persons.
Decision-Making and Statement of Reasons Obligations
Administrative decisions are subject to the principles of administrative procedure, particularly the principle of legality, proportionality, discretion, and equality. They must be substantiated in writing, unless they merely constitute factual actions (§ 39 VwVfG).
Finality of Administrative Decisions
Administrative decisions become final upon expiry of the period for lodging an appeal. This grants them binding force and enforceability.
Decision in Private Law
Contractual and Dispositive Decisions
In private law, the declaration of intent is the fundamental form of decision-making: private individuals make decisions by entering into legal transactions (e.g., conclusion, amendment, or termination of contracts). Binding force here arises from the principles of contractual freedom and civil law (§§ 104 et seq., 145 et seq. BGB).
Unilateral and Bilateral Decisions
- Unilateral Decisions: Termination, withdrawal, contestation.
- Bilateral Decisions: Conclusion of contract, agreement on a declaration of intent.
Decisions by Private Law Institutions
Decisions are also made within the framework of association, corporate, or foundation law by bodies (e.g., board resolutions). The requirements and effects of such decisions are determined by the relevant applicable law.
Form, Content, and Validity of a Decision
Formal Requirements
The effectiveness of a legal decision is often subject to certain formal requirements:
- Written Form: Many decisions, particularly in administrative law, must be issued in writing.
- Statement of Reasons: The principle of comprehensibility and acceptance requires stating the essential reasons for the decision.
Notification and Service
Decisions often only have legal effect after proper notification or service to those concerned (inter alia, § 41 VwVfG, §§ 166 et seq. ZPO).
Erroneous Decisions
Decisions that are formally or substantively flawed may be subject to challenge and can be corrected, for example, by remedies or appeals (e.g., objection, lawsuit, appeal).
Binding Effect and Enforceability
Enforceability of Judicial and Administrative Decisions
Decisions that have the nature of an enforceable title (judgments, enforcement orders, certain administrative acts) are enforceable. Enforcement generally takes place through measures of state compulsory enforcement or administrative enforcement.
Binding Effect and Preclusion
Decisions have binding effect between the parties involved and can also bind third parties under certain conditions. Once substantive res judicata occurs, the same set of facts cannot be reviewed again procedurally (preclusion).
Decision in International and EU Law
In supranational and international law, decisions are made by international courts, arbitral tribunals, or EU institutions. Here, too, form, binding effect, and enforceability are governed by the respective regulatory regime (Art. 288 TFEU: decision, judgment of the ECJ).
Distinction from Other Legal Terms
A decision is to be distinguished from similar terms such as legal act, declaration of intent, decree, or legal effect of facts. While a ‘decision’ usually corresponds to a formal rule of law made by a competent body, a declaration of intent is the everyday expression of private freedom of action.
Summary
The ‘decision’ is a central legal term that permeates both the sovereign and private law spheres. In its various forms, it constitutes the essential element of legal application and creates both individual and collective legal effects. Its scope, binding effect, and contestability depend on the particular area of law and the associated legal norms. Systematic understanding of legal decisions is essential for an appreciation of the rule of law and legal certainty.
Frequently Asked Questions
What formal requirements apply to legally binding decisions by authorities or courts?
The formal requirements for legally binding decisions depend largely on the type of decision and the relevant area of law. In administrative law, administrative acts must, as a rule, be issued in written or electronic form in accordance with § 37 VwVfG (Administrative Procedure Act), containing a justification and legal remedies instruction. In civil procedure, judicial decisions are generally given as judgments, orders, or preliminary injunctions; according to the Code of Civil Procedure (ZPO), these must be drawn up in writing, substantiated, and served on the parties. The form of judgment depends on the individual case, e.g., whether it is a default judgment (§§ 330 et seq. ZPO), a consent or final judgment. In criminal proceedings, specific regulations under the Code of Criminal Procedure (StPO) apply: judgments are usually in writing and must be signed, while orders may also be delivered orally but usually also require a written version. Additional specific requirements may apply for electronic case files, qualified electronic signatures, and service procedures. If the formal requirements are not met, there is a risk that the decision may be void or subject to challenge.
When does a decision become final and what are its legal effects?
A decision generally becomes final when it can no longer be challenged by regular remedies such as appeal, revision, or objection. Finality occurs when the statutory time limits for legal remedies have expired and no admissible remedy has been effectively lodged. In civil proceedings, this constitutes formal res judicata; substantive res judicata means that between the same parties and regarding the same subject matter, no new decision may be made in subsequent proceedings (ne bis in idem). Finality makes the decision binding for the parties and all courts, and it can also be enforced. In administrative proceedings, finality (Bestandskraft) is achieved when the administrative act becomes incontestable. In criminal proceedings, a final judgment also has binding effect for other proceedings. Generally, once finality occurs regarding the same set of facts, a new decision is excluded unless specific requirements for reopening the proceedings are met.
What options exist to challenge or correct a (flawed) decision after the fact?
Erroneous decisions can regularly be challenged through regular or extraordinary legal remedies. Regular remedies include appeal, revision, and complaint, as provided for under statutes such as the ZPO, StPO, Administrative Court Procedure Act (VwGO), or specific laws. These allow for the review of substantive or formal errors. After finality, only extraordinary legal remedies such as reinstatement, restitutory action, reopening of proceedings (§§ 578 et seq. ZPO or §§ 359 et seq. StPO), or a pardon procedure are available. Moreover, decisions can be corrected by complaint to a higher instance or by application for amendment (e.g., in enforcement proceedings). In administration, the options of opposition or application for revocation, withdrawal, or review of an administrative act also exist. The statutory prerequisites, deadlines, and grounds for these remedies are precisely regulated and must be examined on a case-by-case basis.
To what extent are courts bound by previous decisions?
Courts are generally bound only by the law and not by previous judicial decisions of other courts. An exception is the binding effect of final decisions regarding the same matter between the same parties, known as substantive res judicata. In ordinary jurisdiction, there is no rigid precedent effect; however, courts often orient themselves towards superior or specialized courts, notably the judgments of the Federal Court of Justice, Federal Administrative Court, or the higher regional courts. In individual cases, divergent decisions may necessitate a reference to the superior court (divergence submission). In practice and legal scholarship, the term ‘factual binding effect’ is used, arising from the persuasive power, consistency, and predictability of case law rather than formal law. Only decisions of the Federal Constitutional Court are binding on all other courts (§ 31 BVerfGG), as well as the effect of res judicata in cases already decided between the same parties.
Can a decision also be void, and what are the requirements for this?
Yes, a decision—whether administrative, civil, or criminal—can exceptionally be void if it contains such serious defects that it is ineffective without the need for separate revocation. The requirements for nullity are regulated differently according to the area of law, e.g., in § 44 VwVfG for administrative acts or in §§ 579, 580 ZPO for civil judgments. Examples of grounds for nullity include: if a decision is made by an authority or court lacking subject-matter jurisdiction, if it is formally non-existent (e.g., not signed or not issued at all), or if it violates fundamental principles of the legal order (e.g., violation of the right to be heard, manifest breach of public order). In administrative law, nullity is often acknowledged ex officio. If there is doubt as to whether a defect only leads to contestability or already to nullity, this is ultimately determined by judicial review on a case-by-case basis.
What is the significance of the duty to state reasons for legal decisions?
The duty to state reasons is a central principle of lawful decision-making. It requires that decisions—such as judgments, orders, or administrative acts—set out the essential reasons on which the decision is based. This serves to ensure transparency, accountability, and effective legal protection. In administrative law, this duty is anchored in § 39 VwVfG; in civil proceedings, § 313 ZPO requires reasons for judgments and § 329 ZPO for orders. If a court fails to provide or insufficiently sets out its reasons, this constitutes a breach of the duty to give reasons, which can often lead to annulment on appeal. However, simplified reasoning requirements apply to so-called ‘fast-track’ or interim proceedings. The depth and detail required in reasoning vary depending on the individual case and the importance of the decision—but, fundamentally, the essential considerations must be made understandable.
To what extent can decisions be automated, for example, through the use of IT systems?
The automation of decisions, especially in administrative law (e.g., IT-supported mass decision-making), is becoming increasingly important. Under § 35a VwVfG, automated decisions can be permissible in the administrative context, provided this is stipulated or allowed by law—for example, in taxation, traffic law, or social benefits cases. Despite automation, the fundamental principles such as lawfulness, substantiation (generated automatically), transparency, and verifiability are fully preserved. Citizens remain entitled to notification, access to the basis of the decision, and the opportunity to appeal automated decisions. In a judicial context, full automation of decisions is not permitted; judicial will formation and decision-making are inalienable and are part of the core area of judicial independence (Art. 97 GG). The use of AI systems for automated legal decision-making is currently under discussion, but as yet is narrowly limited both legally and in practice.
