Who can take a legal exam?
If everything's falling apart
The remonstration: Everyone has heard of it, some have considered it in their minds or threatened it with an angry voice, but the majority of the students ultimately refrain from attempting to correct their grades afterwards - perhaps also out of ignorance of the exact course of the procedure. To get started on the subject, one particular feature that dominates the entire audit law must first be considered: the auditor's scope for assessment, which is often emphasized by case law. Exam assessments are subjective, and this subjectivity is part of the system. There can be no "objective" assessment of questions such as conclusiveness and persuasiveness of the argumentation, weighting of errors and consequential errors, because different people see these questions differently and a binding standard cannot be established. In addition, the difficulty of the task, as an essential evaluation element, only emerges from the response behavior of the collective under test. If an individual work is removed, the necessary cross-comparison, which makes it possible to determine the degree of difficulty in the first place, is omitted.
The candidate's position: procedurally strong, materially and legally weakFor the examinee, this entails considerable restrictions on legal protection, which is not dogmatically harmless against the background of Article 19, Paragraph 4, Sentence 1 of the Basic Law (GG). The Federal Constitutional Court (BVerfG) tries to compensate at least in part for this deficiency. Under the heading "Protection of Fundamental Rights through Procedure", the materially and legally weak position of the examinee is contrasted with what he sees as an advantageous administrative procedure when checking his grades. Specifically, this is the so-called "rethinking procedure" - a separate, additional procedural section that is put to the side of the examinee who attacks his assessments. Since the scope of assessment is examiner-related, the authority that has to decide on the objection - the state examination office, possibly also the examination board at the university - cannot itself carry out a complete legal and above all expediency check, although the law does so in § 68 para 1 sentence 1 Administrative Court Code (VwGO) so provides. Instead, the examiner himself is dealt with the correction again. He has to "reconsider" his decision. This procedure, also known as remonstration, usually takes place within the framework of administrative objection proceedings - but it is also possible during an ongoing lawsuit. On the other hand, there is no entitlement to reconsideration, in which the examiner takes into account other arguments of the examinee on his previous statement.
2/2: Considerable justification effort necessaryNow the remonstration is not a "sure-fire success". After all, an examination assessment is already available and this should, as a rule, also reveal the supporting arguments for awarding the grade. A simple: "I do not agree with the grade" is not enough to initiate a potentially fruitful rethinking. Rather, what is repeatedly emphasized in case law, "effective advice" from the examinee is required. The examinee must state as precisely and substantiated as possible the objective reasons for which he considers a better grade to be appropriate. "Adding" is not possible in this context. So there is no point if the examinee now presents the applicable solution for the first time in a rethinking process. Rather, the subject of the assessment was, is and remains the supervisory work that has been carried out. A proper remonstration therefore initially concentrates on the justification for the assessment of the corrector and compares this with the solution given by the examinee. It follows from this that a remonstration can be carried out all the more thoroughly, the more detailed the justification for the assessment is drafted. If it is only rudimentary or does not exist at all, the examinee has little choice but to emphasize the conclusiveness and persuasiveness of his own argumentation. As part of the rethinking process, another aspect emphasized by the Federal Constitutional Court takes place: the candidate's scope for answering. Until the "Blitzstrahl aus Karlsruhe", the decisive judgment of April 17, 1991 (Az. 1 BvR 419/81), the sole authority to assess questions in doubt was granted to the examiner. In the case of scientific disputes, it was sufficient for the examiner to consider one of several opinions to be correct. The different opinion of the examinee, no matter how well founded, was then simply wrong.
What is represented is justifiableThis contrasts the examination jurisprudence since 1991 with the "freedom of the examinee to answer": What is scientifically justifiable and what is represented by the examinee with comprehensible arguments must not be assessed as wrong. This is then the vehicle for the argumentation in many remonstration procedures: that statements by the examinee that were objected to by the corrector are correct because the opinion expressed by the examinee can be found in the specialist literature. The OVG Bremen decided in 2011 that a solution structure that is proposed in a book of forms must not be assessed as faulty by the corrector (judgment of December 14, 2011, Az. 2 A 109/09). According to a decision of the OVG Saarlouis from the year 2000, a case solution of a legal issue that follows a decision of the Federal Court of Justice may not be dismissed as "rather coincidental and without systematic embedding" (decision of 22.11.2000, Az. 3 V 26 / 00). However, the examinee should not overestimate the chances of success of a remonstration. It is seldom possible to localize "real" evaluation errors and, as it were, to "convict" the examiner. And even in these few cases, the examiner can still argue that this part of his complaints did not play a decisive role in the assessment. Even if an evaluation error is recognized, there is no automatic entitlement to a better evaluation, but only to a new evaluation. The corrector can therefore come to the conclusion that the assessment error is so marginal that it sticks to the grade given. Of course, the more serious or numerous the evaluation errors found, the less durable. In practice, students and trainees mainly resort to remonstration if they have failed the 1st or 2nd state examination - possibly for the last time. The question of a possible deterioration in the result achieved is then irrelevant. But even those who just missed the rating need not worry about this possibility: Due to the administrative prohibition against bad behavior (no "reformatio in peius"), nobody can leave the remonstration procedure with fewer points than they entered. The author Christian Birnbaum is a partner in the law firm Birnbaum & Partner in Cologne, which specializes in school and university law.
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