Judicial Remedies and Procedure

  • Mahendra P. Singh


In considering the nature of judicial remedies in German law a common lawyer has to bear in mind some basic aspects of that law which are at variance with the common law. While for a common lawyer judicial remedy means remedy in the ordinary courts the German law assigns administrative matters to the administrative courts.1 Judicial remedy here means remedy in the administrative courts and not in the ordinary courts which except in few specified matters have no jurisdiction in administrative matters. Second, although common law does not exclude administrative matters from the jurisdiction of the ordinary courts, it fully recognizes the need for specialist tribunals to deal with such matters. The German law recognizes no administrative tribunals apart from the administrative courts. Therefore, a person can approach the courts directly except where the law requires exhaustion of the administrative remedy in the limited sense, to be mentioned below, before coming to the administrative courts. Thus, except when an appeal in the court is provided against a decision of an administrative tribunal the judicial remedy in common law is of supervisory nature while the remedy provided in the German administrative courts is the primary remedy.


Administrative Authority Preliminary Ruling Legal Remedy Legal Relationship Administrative Court 
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    See above, p.104ff.Google Scholar
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    This distinction between the private and public law remedies in administrative matters has been abondoned in the federal courts in the United States where now only private law remedies of injunction and declaration are sought against the administrative excesses.Google Scholar
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    No specific figures with respect to administrative matters are available, but other matters on an average take more than ten years till the high court stage and if the matter also goes to the Supreme Court another five years or more may be added. For some rough figures see Lodha GM, Wanted Evolution or Revolution in Judiciary?, AIR 1982 (J) 17 ff. Also Dhavan R: The Supreme Court under Strain: The Challenge of Arrears (1978).Google Scholar
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    The five kinds of decisions are: judgments (Urteile),orders (Beschlüsse),preliminary rulings (Vorbescheide),court rulings (Gerichtsbescheide),and directions (Anordnungen or Verfügungen). The first four are given by the court or division while the last one are given by the presiding judge. Generally speaking a judgment normally disposes of the disputes finally while an order is given during the course of proceedings. A preliminary ruling is given on the admissibility of a suit and a court ruling is given unanimously to decide whether an oral hearing is required. Directions are generally given by the presiding judge during the course of oral proceedings.Google Scholar
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    Under the Law for the Uniformity of Judicial Decisions of 1968 a revision can be filed if the challenged judgment differs from a judgment of any of the five federal courts.Google Scholar
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    VwGO, s 137. According to s 138 a federal law is always violated if either the court was not properly constituted, or a judge who was excluded by law or was biased has participated, or a legal hearing was denied to a party, or a party was not represented according to the provisions of law or if the oral proceedings were not held in open, or the judgment is not furnished with grounds or reasons. Further, it has been suggested that the limitation of s 137 does not prevent the Federal Administrative Court from deciding cases arising under state laws so long as any federal issue is involved. See Pakuscher EK: Administrative Law in Germany - Citizen v. State, 16 Am J Comp L 309, 329 (1968–69).Google Scholar
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    Id, s 172. It is instructive for the Indian lawyers and law-makers where some times even the Supreme Court orders are not implemented for as many as twelve years. See Devaki Nandan Prasad v State of Bihar, AIR 1983 SC 1134.Google Scholar
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    See Ule, above, n 31; Sendler, above, n 33, and the statement of reasons on the individual clauses of the draft of the Law on Procedure in Administrative Courts (Verwaltungsprozessordnung) of 19 March 1982 at 61 (Now BR-Dr 148/83).Google Scholar
  51. 51.
    Entwurf einer Verwaltungsprozessordnung of 19 March 1982 ss 4 and 113 (Now BR-Dr 148/83).Google Scholar

Copyright information

© Springer-Verlag Berlin Heidelberg 1985

Authors and Affiliations

  • Mahendra P. Singh
    • 1
  1. 1.Faculty of LawUniversity of DelhiDelhiIndia

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