Concept and Significance of the Preliminary Issue in Law
Die Preliminary Issue is, in the legal sense, a question significant for the decision, the answer to which is necessary for the assessment of the actual (main) legal question, without itself being the direct subject of the pending proceedings. The treatment of preliminary issues plays a central role in various areas of law, particularly in procedural law, statutory interpretation, and the determination of conflict-of-law rules.
Legal Dogmatic Classification
Distinction: Main Issue and Preliminary Issue
Within the context of decision-making, the main issue constitutes the actual subject matter of the dispute in the proceedings or examination. The preliminary issue, on the other hand, is a preceding legal or factual question that must be answered beforehand and whose clarification has a decisive influence on the main issue. Handling preliminary issues is typical in so-called claim assessments (e.g., in civil proceedings) and the application of conflict-of-law rules in private international law.
Significance in Different Areas of Law
Civil Law
In civil law, preliminary issues arise, for example, when the existence, content, or extinction of a claim depends on another legal question that itself does not constitute a separate subject matter of the dispute. Example: The effectiveness of a legal transaction (preliminary issue), the affirmation or denial of which determines the existence of a claim (main issue).
Criminal Law
In criminal law, a preliminary issue can also become relevant, for instance, when criminal liability depends on the existence of civil law elements (e.g., in fraud, the civil law validity of a contract).
Administrative Law
In administrative law, the issue of a preliminary question arises particularly when an authority, in deciding on an administrative act, must clarify another public law or even private law question which falls within the competence of another authority or court.
Legal Handling of Preliminary Issues
Binding Effect and Power of Independent Review
The central question in dealing with preliminary issues is whether the deciding court or authority considers itself bound by decisions already made by other courts or bodies (binding effect) or whether it is allowed to independently (incidentally) review the preliminary issue (incidental review or incidental resolution).
Binding Effect
Binding effect generally arises when the preliminary issue has already been finally determined by a competent instance. Whether and to what extent such binding effect exists depends on the relevant special laws and procedural law.
Incidental Review
In many cases, the court is authorized or even obliged to independently examine the preliminary issue, unless there is another binding decision. This independent review of the preliminary issue is known as an incidental decision. Such incidental decisions generally have no external effect and do not bind the court originally responsible for the main issue.
International Aspects: Conflict-of-law Preliminary Issues
Conflict-of-law Classification
In private international law (PIL), preliminary issues can attain significant importance. Here, the so-called conflict-of-law-related preliminary issue problem arises: for the application of foreign law, a preliminary question concerning the applicable law may first have to be answered.
Methods of Resolving Preliminary Issues
There are several approaches:
- Qualification under the Law of the Main Issue (Lex causae): The preliminary issue is qualified under the law that is relevant for the main issue.
- Independent Connection: The preliminary issue is assessed according to its own conflict-of-law rules, possibly applying a different law than the main issue.
Case law and academic literature are not unified regarding the preferred method; in practice, a case-by-case assessment is usually carried out.
Examples and Cases of Application
Example from Civil Procedure Law
A party asserts an inheritance claim; the court must, as a preliminary issue, examine whether the testator was validly disinherited. The validity of the disinheritance constitutes the preliminary issue for the asserted claim.
Administrative Law Case
A business license is applied for, the issuance of which depends on the prior clarification of a public law authority. The administrative authority responsible for this reviews the preliminary issue incidentally, but is bound by final preliminary decisions of other authorities.
Distinction from Related Terms
Subsidiary Issue
The subsidiary issue must be distinguished from the preliminary issue. While it is related to the main issue, it does not have to be answered for the decision on the main issue.
Precedent
The term “precedent” refers to a legally formative preliminary issue decision with external effect, in contrast to a mere incidental decision.
Case Law and Literature
The handling of preliminary issues is extensively discussed in case law, particularly concerning the courts’ incidental decision-making authority, the prerequisites for binding effect, as well as various models for resolving preliminary issues in private international law.
Conclusion
The preliminary issue is a complex term in law. Its treatment has a significant impact on the decision-making process both in national and international legal disputes. The questions of independent review, binding effect, and conflict-of-law connection demand a high level of differentiation and careful handling of procedural and substantive legal prerequisites. Addressing the preliminary issue problem is essential for the correct and comprehensive application of law in a wide range of situations.
Literature:
- MüKoBGB/Leipold, BGB § 1922 Rn. 18 ff.
- Kropholler, Internationales Privatrecht, 7. Aufl., § 13
- Zöller/Greger, ZPO, § 322 Rn. 19 ff.
Case Law:
- BGH, Judgment of 24.07.1987 – V ZR 210/85
- BVerwG, Judgment of 21.02.1984 – 9 C 1/81
Frequently Asked Questions
What legal effects does the treatment of a preliminary issue as a real or non-real preliminary issue have?
The distinction between real and non-real preliminary issues has significant effects on powers of decision and res judicata. A real preliminary issue is one whose answer is a logically compelling prerequisite for the decision on the main issue, without being independently decided upon. The court is not permanently bound by its own assessment of the preliminary issue in this respect; any different bindings result exclusively from statutory provisions. A non-real preliminary issue, on the other hand, can be independently legally relevant, may be subject to independent legal recourse, and can be reviewed or assessed differently in subsequent proceedings. As a result, real preliminary issues generally do not become res judicata and cannot be challenged separately, whereas non-real preliminary issues, provided they have constituted an independent decision subject, such as in a different procedure, can indeed become res judicata and then have a precedential effect on subsequent decisions. This affects the competence of courts, appellate remedies, and the binding effect of decisions.
Is a court bound by the decision of a preliminary issue by another authority or court?
The binding of a court to the decision of a preliminary issue by another body is regulated in a differentiated manner under German law. As a rule, there is no general binding effect unless such is expressly provided for by law. For example, binding of a civil court to administrative court decisions may exist if provided by the legislature. Such binding generally arises only if the other body (court or authority) was competent for the issue in question and the decision was made in a final, formal proceeding. If such regulation is lacking or the preliminary issue was only dealt with incidentally, the competent court can assess the issue independently and autonomously. However, exceptions apply, such as § 17 para. 2 sentence 2 GVG in the relationship between civil and administrative courts, or in tax law pursuant to § 100 para. 1 sentence 1 FGO, which establish binding effects.
Can the answer to a preliminary issue be appealed?
The appealability of a decision on a preliminary issue depends on whether it was the subject of an independent dispute, or was only resolved within another proceeding as a prerequisite for the main decision. If the preliminary issue is only examined as a mere legal prerequisite of a decision, it is generally not appealable on its own; only the main decision can be procedurally contested. This corresponds to the principle of unity of the subject matter of the dispute in German civil litigation. Decisions that make the preliminary issue the main subject (for example, in parallel proceedings) can, of course, be independently challenged. Special rules apply in administrative law, for instance, if an administrative or court decision on a preliminary issue is binding for other proceedings.
What role do preliminary issues play in substantive res judicata?
Preliminary issues affect substantive res judicata in that, in judgments or decisions, generally only the main issue becomes res judicata. The court’s assessment of a preliminary issue as part of the judgment does not normally attain independent res judicata effect. This holds true even if the preliminary issue was a logical prerequisite for the main decision; it may be assessed differently in a subsequent case where it becomes relevant again. The preliminary issue is only covered by substantive res judicata if it is itself the subject of the operative part (tenor) or is expressly given res judicata effect by decision or statute (for example, under § 322 ZPO in declaratory judgment actions).
How does the binding effect of final decisions on preliminary issues function with respect to other areas of law?
As a rule, the binding effect of final preliminary decisions is limited to the respective court and proceedings; a binding effect beyond the boundaries of the proceedings arises only through special statutory provisions. For example, family law status decisions such as paternity challenges are generally respected by all authorities and courts, regardless of the subject matter of the dispute, as long as the decision is final. In other cases, such as tax law, factual or legal findings from criminal or civil proceedings do not generally bind the authority, unless there is an explicit legal order or inter-disciplinary reference.
Can preliminary issues also be examined ex officio, or is a motion by the parties required?
The examination of a preliminary issue by the court occurs ex officio if it is relevant to the resolution of the legal dispute (significance for the decision). An application by the parties is generally not required. As courts are bound to the correct application of the law (iura novit curia), they independently examine all elements of the case and thus any preliminary issues. The parties may initiate or, if necessary, under § 139 ZPO, request clarification by the court, but the actual review and assessment of the preliminary issue remain within the court’s responsibility.
What is the significance of preliminary issues in international private and procedural law?
In the international context, the classification and treatment of preliminary issues play a special role. The so-called preliminary issue problem describes the question of which law (the conflict-of-law provisions of the forum or the international substantive law) applies to a question that is not directly decisive for the case but must be resolved for the dispute. Preliminary issues here pose significant challenges for the interpretation and application of conflict-of-law rules. The court may be obliged to apply different legal systems—for example, in matters relating to marital or child status or in the recognition and enforcement of foreign judgments. Differences between domestic and international proceedings can have a substantial impact on the outcome of the dispute.
