Revision, Cassation, Final Appeal - Courts of Last Resort and Their Function(s) to Protect Individual Rights and to Develop the Law

• Applicant: Privatdozent Dr. Julian Philipp Rapp
• Subject Area: Private Law
• Term: since 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 530230571

The review of judicial decisions by a higher court is a palmary achievement of the rule of law and inherent in almost every legal system in the world. The basic structure of an institutionalised court system is thus characterised by one or several Supreme Courts sitting at the top of the judicial pyramid. These courts of last resort ultimately decide individual disputes but are also engaged in developing the law by precedents. However, this twofold assignment (which can be traced back in history for centuries) shows a profoundly contradiction in any appellate proceeding: Civil justice primarily serves to enforce subjective rights and to realise individual justice; but the function of a Supreme Court is (also, predominantly, or almost exclusively) oriented towards a ‘public’ interest emancipated from individual legal disputes by clarifying fundamental legal questions, developing the law, and ensuring the uniform application of the law by lower courts. Although almost all judicial systems are confronted with this dichotomy between ‘private’ and ‘public’ purpose, fundamentally different approaches for its resolution have developed in the French, German, English and US legal system which have so far have defied any harmonization in this important area of law. The first part of the book is therefore devoted to a basic analysis of the current civil appeals structure. After an examination of the historical development in central Europe, I analyse the purposes of (final) appeals, particularly regarding its constitutional, economical, and procedural background. The second part deals with the functioning of the appeal’s process in the German legal system. On the one hand, the position of the (Federal) Supreme Court in the German and European judicial system is examined. On the other hand, I discuss the actors involved in the appeal’s process (judges, lawyers etc.), their importance for the entire legal system and the reasoning and publication practice of Supreme Court judgments. Subsequently, I examine the purposes of the appeal system from a comparative perspective. The German Revision system is compared to the French cassation, the English appeal and the US certiorari model, expounding its divergent functions in the respective legal system. Finally, the current challenges of the different appeal systems are discussed, especially the Supreme Courts’strengths and weaknesses in developing the law, as well as procedural models for enhanced effectiveness of civil proceedings before the respective court of last resort.

• DFG Programme: Publication Grants