Special vote

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The term special vote , also known as a minority vote or minority vote , is used to describe the dissenting opinion of one or more judges in the decision-making process of a panel that does not agree with the majority opinion.

There are two types of special votes:

  • the result is not load-bearing minority opinion ( dissenting vote , dissenting opinion ), in which the / the judge has a different process output than the majority wanted / have;
  • The result is a consenting vote, concurring vote, plurality opinion, separate opinion , in which the result of the majority opinion is supported, but for different reasons.

Occurrence in Germany

At the Federal Constitutional Court

In the proceedings before the Federal Constitutional Court (BVerfG), the fourth amendment to the Federal Constitutional Court Act of December 21, 1970, in Section 30 (2 ) BVerfGG, introduced the option of a special vote. Since then, a minority vote with the signature of the differing judges' votes can be attached to the decisions of the BVerfG. The aim of the reform was to achieve increased transparency in court decisions and to strengthen the position of the individual judge.

In the final report of the committee of inquiry

If there is no final report, either due to a lack of time because a new electoral term begins, or due to disagreement among the members, a special vote must take place.

In the federal states

Special votes are also possible in some of the state constitutional courts in Germany. So z. B. Section 12 (1) of the Lower Saxony Law on the State Court of Justice provides for the corresponding application of Section 30 (2) BVerfGG. The Hessian State Court Act provides in Section 16 (3) an independent regulation on the possibility of a special vote. Separate votes are also permitted in arbitration proceedings.

At other courts

The special vote is only permissible in constitutional courts. In all other courts, a special opinion may not be published. A judicial confidentiality obligation arises from § 43 DRiG, which protects the confidentiality of advice . The introduction of special opinions in all courts was discussed in detail at the 47th German Jurists Conference in 1968. In particular, the question of whether lay judges are allowed to give separate votes and whether legal and factual issues can be the subject of a separate vote is particularly problematic.

At the universities

Within the universities , minority votes are possible in decision-making bodies, in particular in appointment committees . These are recorded in the files and, if necessary, forwarded to the responsible ministry.

In common law

In contrast to German law, in Anglo-Saxon law , special opinions may generally be published, which is also done extensively, e.g. B. at the US Supreme Court . This practice also applies to most international judicial bodies, which are more influenced by common law than Roman-Germanic law. In principle, the individuality of the judges is emphasized more strongly by special votes.

Meaning of special votes

Measured against the decisions, special votes play a relatively minor role. Of the 1,714 decisions printed in volumes BVerfGE 30–101, only 108 decisions contained special votes. The majority opinion is quoted in the literature, while the argumentation of the special opinions often only plays a subordinate role in later scientific discourse. Nonetheless, special votes can lead to jurisdiction. So a special vote z. B. indicate a later change in case law, if the opinions change due to social change. The announcement of a special vote can also lead to a more intensive debate within the college and thus enable a more balanced result for the specific decision.

In the Anglo-Saxon legal system, special opinions are much more important, especially those of the US Supreme Court. For example, Oliver Wendell Holmes was in the minority in many of his cases, but his concise and often later developments of the majority opinion are often better known than the opinions of the majority of the time and in some cases led to his view later becoming law . In the media, special opinions are also repeatedly taken up, which are characterized by the fact that they sharply attack the opinion or argumentation of the majority. For example, Antonin Scalia was known for this when he was in the minority.

literature

  • Willi Geiger: Differing opinions on decisions of the Federal Constitutional Court. Mohr, Tübingen 1989, ISBN 3-16-645464-0
  • Rolf Lamprecht: judges versus judges. Differing opinions and their significance for the legal culture. Nomos, Baden-Baden 1992.
  • Karl-Heinz Millgramm: Separate opinion and special opinion in the case law of the Supreme Court of the United States and the Federal Constitutional Court. Duncker & Humblot, Berlin / Bochum 1984, ISBN 3-428-05748-1 . (Series of publications: Writings on international law, Vol. 34, 1985, plus dissertation)
  • Wolfgang Heyde: The minority vote of the outvoted judge. Gieseking, Bielefeld 1966. (Series of publications: Writings on German and European civil, commercial and procedural law, Vol. 37, also: Bonn Univ., Diss., 1963)
  • Fritz Schenk: The Hohmann case ... and no end - With the text of the special vote of the Federal Party Court of the CDU. 2nd edition, Munich 2005, ISBN 3-8004-1466-X .
  • Friedrich Wilhelm Siebeke: On the question of the admissibility of separate opinions outside of the jurisdiction of the Federal Constitutional Court. Announcements of the Institute for German and European Party Law, Issue 2005, ISSN  1612-8117
  • Christian Eggeling: The special vote in the constitutional jurisdiction of the new federal states. Berlin 2006, ISBN 3-428-11910-X

Web links

Individual evidence

  1. ↑ Reichert, Handbuch des Vereins- und Verbandsrechts, 10th edition, margin no. 5132
  2. ↑ Years 1971 to 2000