In the name of the people

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Head of a judgment by the Federal Court of Justice

According to German procedural law, the judgments and resolutions of the Federal Constitutional Court ( Section 25 (4  ) BVerfGG ) as well as the judgments (but in principle not the resolutions) of all ordinary courts and specialized courts ( Section 311 (1) ZPO ; Section 268 ( 1)  ZPO ) are issued “in the name of the people” 1  StPO ; Section 117 (1) sentence 1  VwGO ; Section 105 (1) sentence 1  FGO ; Section 132 (1) sentence 1  SGG ). The procedural rules of the state constitutional courts have partially different input formulas .

General

The formula in the name of the people is an expression of the fact that the judiciary, like all state authority according to Article 20, Paragraph 2, Sentence 1 of the  Basic Law, proceeds from the people ( popular sovereignty ). The formula therefore primarily expresses that the judges, as representatives of the sovereign, pronounce justice. Since their decision is solely bound by the law ( Article 97, Paragraph 1 of the Basic Law), it also means that the judgment corresponds to the will of the people of the state formulated as a law; but it does not mean a dependence on popular opinion (vox populi) , as expressed in opinion polls.

Resolutions in family matters

Since the law on the procedure in family matters and in matters of voluntary jurisdiction came into force, it has been controversial whether the decisions that it provides to replace the earlier judgments must also be made “in the name of the people”. Unlike for judgments of the disputed civil jurisdiction ( § 311 Abs. 1 ZPO), the FamFG does not provide any express comparable regulation. For matrimonial matters and so-called disputed family matters, however, it provides for an extensive reference to the general regulations of the ZPO. In practice, these decisions replacing the judgment (e.g. divorce decision instead of an earlier divorce judgment) are not provided with the initial formula in most OLG districts; the Federal Court of Justice as the higher-ranking final instance uses the initial formula.

Earlier forms

Historically, the initial formula is derived from the fact that earlier judgments were made “in the name of the king” or the respective monarch , since according to earlier understanding, rooted in absolutism , all state authority emanated from the monarch, who was only represented by judges in the case law .

With the introduction of democracy , the formula was adjusted.

The judgments of the Reichsgericht and the Reichsarbeitsgericht in the German Empire and the Weimar Republic were passed “in the name of the Reich”, during the time of National Socialism “in the name of the German people”. Immediately after the Second World War , the judgments of the German courts were passed “in the name of the law”. In the GDR, as in the Federal Republic, the judgments were passed “in the name of the people”.

Other states

Judgments in other European countries have comparable input formulas. In Austria they are issued “In the Name of the Republic”. In France, the initial formula is République française / Au nom du Peuple français ("French Republic / on behalf of the French people"), correspondingly in Italy Repubblica Italiana / In Nome del Popolo Italiano ("Italian Republic / on behalf of the Italian people"); in Poland V imieniu Rzeczypospolitej Polskiej (“On behalf of the Polish Republic”), in Russia Именем Российской Федерации (“On behalf of the Russian Federation”).

In Spain - which is a monarchy - judgments are made “in the name of the king” (En Nombre del Rey) . So also in the Netherlands; In 2015, the ancient genitive form In Naam des Konings was adapted to modern Dutch grammar: In Naam van de Koning . This formula is only stamped on the enforceable copy of the judgment.

In the legal systems of common law (Anglo-Saxon legal system), such input formulas are not customary; not even in Switzerland.

See also

literature

Web links

Individual evidence

  1. ↑ Max Vollkommer in Zöller , Code of Civil Procedure , 30th edition 2005, § 311 margin number 1
  2. ↑ differently expressly the OLG Zweibrücken, 6 UF 156/12 ( Memento of the original from March 5, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , OLG Zweibrücken, decision of April 18, 2013 @1@ 2Template: Webachiv / IABot / www3.mjv.rlp.de
  3. ↑ z. B. XII ZB 277/12 , BGH, decision of October 16, 2013
  4. ↑ Reiner Stenzel, Dieter Skiba: In the name of the people. Investigations and court proceedings in the GDR against Nazi and war criminals. Edition Ost, Berlin 2016.
  5. ↑ Art. 454 Code de procédure civile ( online )
  6. ↑ Article 430 Wetboek van Burgerlijke Rechtsvordering (Dutch Code of Civil Procedure)
  7. ↑ Tjeerd Grünbauer: 'In naam the Koningin!' ( Memento of the original from August 25, 2018 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.vanveen.com archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Van Veen Advocaten, July 10, 2015.