Concept and Principles of Preliminary Suspension
Die preliminary suspension is an important concept in German law. It refers to a court order by which a pending judicial, administrative, or enforcement proceeding is temporarily interrupted or stayed. The purpose of the preliminary suspension is to protect the rights of the parties involved, preserve the status quo, and prevent irreparable disadvantages until the final decision is made. The legal basis and requirements for preliminary suspension vary depending on the field of law and type of proceedings.
Definition and Objectives
A preliminary suspension temporarily prevents the continuation of the proceedings, process actions, or enforcement. It usually takes place through a formal decision by the competent court or authority. The preliminary suspension thus serves the protective interests of the affected parties, especially when there is a risk of unlawful, irreparable impairment of rights.
General Legal Principles
The option of preliminary suspension is regulated in various procedural codes, for example in the Code of Civil Procedure (ZPO), the Administrative Court Procedure Code (VwGO), the Code of Criminal Procedure (StPO), as well as in the Social Court Act (SGG) and the Fiscal Court Procedure Code (FGO). Enforcement law also contains specific provisions regarding the preliminary suspension of enforcement proceedings.
Preliminary Suspension in Civil Proceedings
Code of Civil Procedure (ZPO)
In civil procedure, preliminary suspension plays a central role, particularly in connection with legal remedies against enforcement measures or in the case of pending appeals and complaints. Relevant provisions are mainly found in Sections 707 and 719 ZPO.
Section 707 ZPO – Preliminary Suspension of Enforcement
According to Section 707 ZPO, the court of first instance may, upon request, order that enforcement from a contested judgment be preliminarily suspended or be made contingent upon the provision of security. This application is particularly relevant when filing an appeal, revision, or complaint, provided that these remedies may have suspensive effect or the debtor seeks protection against disadvantages due to ongoing enforcement.
Purpose and Requirements
The purpose is to protect the debtor from disadvantages resulting from possibly unlawful enforcement while the judgment is still under review. A preliminary suspension can only be ordered under strict conditions, particularly if there are compelling reasons and substantiated disadvantages for the applicant.
Section 719 ZPO – Preliminary Suspension after Objection
Section 719 ZPO governs the possibility of preliminary suspension of enforcement following an objection to a default judgment. Upon request, the court may preliminarily suspend enforcement or make it subject to the provision of security.
Preliminary Suspension in Administrative Law
Administrative Court Procedure Code (VwGO)
In administrative court procedure, preliminary suspension is relevant especially in connection with applications for suspension of enforcement (Section 80 (4) VwGO) or with legal remedies with suspensive effect.
Section 80 VwGO – Suspension of Enforcement
In the case of legal remedies against administrative acts with immediate enforcement, the court may, as part of summary proceedings, preliminarily suspend enforcement. This is particularly necessary to ensure effective legal protection in accordance with the principle of legal recourse guaranteed by Article 19 (4) Basic Law (GG).
Requirements
Preliminary suspension in administrative law generally requires that there are serious doubts as to the lawfulness of the administrative act or that immediate enforcement would entail unreasonable hardship for the person affected.
Preliminary Suspension in Criminal Proceedings
Code of Criminal Procedure (StPO)
Preliminary suspension also applies in criminal proceedings, for example, in complaints against orders regarding coercive measures or in pending remedies against enforceable decisions.
Sections 307, 343 StPO
In the context of a complaint against a coercive measure (arrest warrant, search order, etc.), Section 307 StPO allows the enforcement of the challenged measure to be preliminarily suspended. There is a corresponding provision for the appellate review procedure in Section 343 StPO.
Protective Function
Preliminary suspension in criminal proceedings also serves to protect against severe, unreasonable disadvantages, especially when the order involves significant infringements of fundamental rights.
Social Law and Fiscal Court Procedural Rules
Social Court Act (SGG) and Fiscal Court Procedure Code (FGO)
Comparable provisions for preliminary suspension exist in social and fiscal court procedures. In particular, Section 151 (1) SGG and Section 69 FGO allow for preliminary suspension of enforcement of administrative acts or execution.
Requirements and Particularities
Here too, it is crucial that the applicant faces significant disadvantages due to enforcement and that a careful balance of interests favors the applicant.
Preliminary Suspension in Enforcement Law
Enforcement
Within the context of enforcement, applications for preliminary suspension may be filed, especially where remedies against the enforcement title or objections exist (Sections 775, 776 ZPO).
Significance in Third-Party Opposition and Enforcement Counterclaims
If third-party opposition actions or enforcement counterclaims are pending, the enforcement court may order the suspension of enforcement pursuant to Section 771 (3) ZPO.
Procedure and Decision-Making Standards
Application and Decision
Preliminary suspension generally only takes place upon application by a party involved. The court or competent authority examines the prospects of success of the legal remedy (on a summary basis), the existence of particular disadvantages or legal risks, and the weight of the competing interests.
Duration and Consequences
The preliminary suspension remains effective until a final decision on the underlying legal remedy or until its express revocation. Violations of the preliminary suspension can have procedural consequences and may, if applicable, lead to claims for damages.
Legal Protection and Remedies
Depending on the type of procedure and legal provisions, legal remedies (appeal, immediate appeal) may be filed against the decision on preliminary suspension. The binding effect of a preliminary suspension does not extend to the main issue but serves to maintain the provisional status until final clarification.
Significance and Practical Relevance
Preliminary suspension is a central instrument of procedural law. It ensures that the rights of the parties involved are effectively protected and that irreparable disadvantages are avoided until the final court decision. Thus, it is an essential tool for procedural fairness and the rule of law, and it makes a significant contribution to achieving effective legal protection.
Literature and Further Provisions
- Code of Civil Procedure (ZPO)
- Administrative Court Procedure Code (VwGO)
- Code of Criminal Procedure (StPO)
- Social Court Act (SGG)
- Fiscal Court Procedure Code (FGO)
- BeckOK ZPO, Section 707 ZPO
- Meyer-Goßner / Schmitt, StPO
- Kopp/Schenke, VwGO
Summary: Preliminary suspension is a complex legal tool that allows for the temporary suspension of proceedings or enforcement in various procedural codes in order to protect the rights of those involved and prevent irreparable disadvantages. Its legal design and requirements vary depending on the type of proceeding and the protective needs of the parties.
Frequently Asked Questions
What requirements must be met for a preliminary suspension?
A preliminary suspension requires that an appeal is pending, whose success could result in the revocation or modification of the challenged measure. Additionally, either serious doubts as to the lawfulness of the challenged decision must exist, or an unreasonable, undue hardship must be imminent if suspension does not occur. The decision is usually based on an application by the party concerned, who must provide specific reasons justifying the preliminary suspension of enforcement. Depending on the procedure, statutory requirements may differ slightly; attention must particularly be paid to the provisions of the respective procedural codes (e.g., Section 80 (5) VwGO in administrative law, Section 361 (2) StPO in criminal law, or Section 707 ZPO in civil proceedings).
What legal remedies are available against the rejection of a preliminary suspension?
If a request for preliminary suspension is refused, the applicant generally has access to the same legal remedies as in the main proceedings. In administrative proceedings, for example, an appeal in accordance with Section 146 VwGO is possible against a negative decision. In civil court proceedings, an immediate complaint pursuant to Section 574 ZPO is available. In criminal procedure, an immediate complaint under Section 304 StPO is usually admissible. Legal remedies must be filed within the statutory time limits, which may vary depending on the procedural code (generally two weeks). During the appeal process, a request for a preliminary injunction can also be made to the appeal court, so that enforcement remains temporarily suspended.
May the decision on preliminary suspension be announced orally, or is a written order always required?
Legally, a written decision is generally permissible and customary, especially in proceedings conducted on the basis of the file. In cases of particular urgency (e.g., where immediate enforcement would result in serious disadvantages), a court may announce the decision orally during a hearing and record it accordingly. Nevertheless, in nearly all types of proceedings, a written document is necessary to ensure comprehensibility and the right to appeal. The written decision must set out the relevant considerations and provide reasoning; otherwise, formal errors may arise that affect the possibility of appeal.
What effect does preliminary suspension have on the main proceedings?
Preliminary suspension only affects the temporary stay of enforcement of the challenged order or decision. The main proceedings themselves are neither terminated nor substantively anticipated by this measure. Courts are still obliged to conduct a comprehensive examination in the subsequent proceedings, although they may draw conclusions from doubts already indicated in the preliminary decision regarding the lawfulness of the measure. If it later transpires that the preliminary suspension was unjustified, this does not preclude a decision in the main proceedings, but claims for compensation may arise if the respondent suffered disadvantages as a result.
Is it possible to file a new application if the factual or legal situation changes after the first application was rejected?
Yes, generally a renewed application is permitted if, after the initial rejection, significant circumstances have changed or new facts have emerged that were not considered in the original decision (Section 80 (7) VwGO, by analogy in other procedural types such as ZPO or StPO). In such a follow-up application, the applicant must clearly set out why, despite the previous rejection, a different assessment of the facts or law is now warranted. Without substantial changes, however, there is a risk that the follow-up application will be inadmissible (keyword: prohibition of repeated applications without new factual basis).
What is the significance of the public interest in the decision on a preliminary suspension?
The court is required to carefully weigh the so-called public interest in immediate enforcement against the private interest of the applicant in a provisional suspension. This balancing of interests is a central aspect of the judicial decision, especially in administrative proceedings (cf. Section 80 (5) sentence 1 VwGO). The focus is on ensuring that urgent public needs or the effectiveness of state action are not impaired by a mere suspension. On the one hand, suspension may be justified if, without it, the individual would suffer serious disadvantages; on the other hand, the public interest may carry more weight, for example if public safety measures are affected. In each individual case, the court must balance the competing interests, taking into account urgency, reasonableness, and the prospects for success in the main proceedings.
Can a preliminary suspension be limited in time or made subject to conditions?
Yes, the court may order preliminary suspension not only unconditionally, but also subject to specific conditions, for a limited period, or with concrete requirements. For example, the suspension may be limited until a certain deadline expires, a specific action is performed, or a pending legal remedy has been decided. Likewise, the court may in individual cases require the applicant to provide security, in order to safeguard possible claims once the decision becomes final. Conditions and time limits serve to balance the competing interests and to prevent abuse, especially in cases with significant consequences for any party (e.g., approval upon provision of security in accordance with Section 769 ZPO).
What are the costs consequences of an application for preliminary suspension?
The costs of proceedings for preliminary suspension are determined in accordance with the general cost rules contained in the relevant procedural law. In administrative proceedings, the court determines at its equitable discretion who bears the costs (Section 80 (7) VwGO in conjunction with Section 154 VwGO). In civil proceedings, the unsuccessful party bears the costs, with Section 91 ZPO applied accordingly. If suspension or settlement is achieved by mutual agreement, the costs may be offset against each other. Court costs usually amount to between half and a full fee, depending on the value in dispute and the stage of the proceedings. Extrajudicial costs of the parties (lawyer’s fees, etc.) must also be taken into account in terms of costs.
