The private international law determines the applicable law (also called "Regulations") in that it called for individual legal areas, linking objects or referral terms, respectively this relevant connecting factors determine.
Legal system closest to the subject
The legislature has to weigh up several legal interests and interests in order to decide which legal system is the objectively required one for the assessment of situations with foreign relevance. The means of this decision is the design of the connecting factors. A connecting element consists of a subject (person, thing, event, law), an attribute of the subject that establishes the relationship between the subject and a particular legal system, and a point in time. The following can be considered as attributes of the subject in particular: nationality , ethnicity , habitual residence , place of residence , place of residence , place of registration, the place where the act was carried out or occurred (place of the crime, place of conclusion of the contract, place of notarization, place of performance ). The connecting factors set up standardized case groups, which as a rule characterize the strongest factual connection to the legal system referred to by the connecting factor. In order to adapt this generalized approach to specific interests of the individual case, the legislature has recently introduced options for the parties involved to choose the law.
For the assessment of personal rights, German international private law refers to nationality and partially or alternatively to habitual residence. For the law of obligations and property law , the place of the action that is characteristic of the claim or the legal relationship serves as a connecting factor.
The nationality is not only a political membership of a citizen in a state with all civic rights and duties, but also expresses a commitment to each of values and legal system. It is therefore justified to use nationality as a starting point for the assessment of issues with international relevance.
Citizenship is determined according to the law of the country whose citizenship is in question. Citizenship poses problems for people with multiple nationalities, stateless persons and countries with multiple (territorial or personal) legal systems. Difficulties also arise with arbitrary handling of citizenship by other states (e.g. mass expulsions, conquest of foreign states, secession).
The link to citizenship best achieves the following goals:
- Preservation of the foreigner's cultural identity ;
- Continuity interests of the foreigner, in particular the vacationer, diplomat, journalist or development worker abroad, foreign student or employee of a multinational company;
In the German private international law are persons rights (→ Staff Regulations ), namely legal capacity and legal capacity , naming rights , declaration of death ; the marriage law , including the requirements for a marriage, the effect of the marriage between the spouses, the marital property regime , the right of divorce marriage; also the right of guardianship , care and custody and the right of legal succession in the event of death . Austrian law also follows the law of nationality for personal rights and legal relationships in international private law.
Main article: Cultural identity
The point of view that speaks for citizenship as a connecting factor is that a foreigner is given the opportunity to preserve their own cultural identity . The protection of cultural identity can be in tension with the requirement of integration for an orderly coexistence.
Employees of multinational corporations, foreign students, diplomats and other returnees, on the other hand, will wish to preserve their cultural identity as much as possible when assessing their highly personal matters. Many do not emigrate until they are adults, so that they are strongly influenced by their home law, especially in terms of their families.
If every state insists on the application of its law, travelers, diplomats, foreign students or employees of multinational corporations, depending on which state they are currently in, would be constant, even in highly personal matters (e.g. their names) and in family and property matters be subject to a changing legal system. Such facts require a uniform assessment. This interest can be satisfied by applying their home law.
Nationality is usually easy to determine. In addition, it is only subject to a low possibility of forgery and deception, while, for example, the habitual residence or place of residence can be manipulated. In addition, it is difficult to change citizenship, which contributes to the stability of the legal relationships that are linked to citizenship.
In addition to nationality, habitual residence or domicile can also be used as a connecting factor. The term residence is understood differently around the world. Usually the actual center of life is combined with the will to settle there. A normative approach leads to considerable legal uncertainty as to when which legal system applies to a person. The different understanding of the stay disrupts the international consensus of decisions, which is a major disadvantage of this connecting factor. Difficulties also arise if a person has several places of residence or several personal legal systems apply at one place of residence (e.g. separate legal systems according to religious affiliation).
Right of residence as a more relevant right
For the person of the foreigner
The use of permanent residence as a connecting factor is justified if the nationality is not suitable for expressing a commitment to the legal and cultural sphere of the home country. For this reason, asylum seekers and other recognized refugees, who usually feel more closely related to the host country that grants them protection, do not rely on the law of their home country, but on the law of permanent residence for the assessment, e.g. B. of the personal statute (Article 12 No. 1 Geneva Refugee Convention ).
For the respective subject matter
A link to the right of permanent residence at the expense of nationality is also necessary if the substantive law is, by its nature, geared towards the circumstances prevailing at the permanent residence. That is why the maintenance law , which is based on the type and amount of living conditions in Germany that also affects a foreigner, is linked to permanent residence. Since the Childhood Law Reform Act of July 1, 1998, custody has also been based on the law of the state in which the child has his habitual residence.
The contract statute in Germany is also based on habitual residence
- the person who has to provide the service peculiar to the contract ( Paragraph 2 EGBGB);
- of the consumer in a consumer contract ( Paragraph 2 EGBGB);
- of the carrier in the case of a freight transport contract, provided that the place of loading or unloading or the main office of the consignor is also located there (Article 28 (3) EGBGB).
However, habitual residence is only a presumption that the legal system of habitual residence is most closely related to the contract. Incidentally, subject to mandatory regulations, the parties also have a free choice of law. The regulation is followed by everyone who has acceded to the European Debt Contractual Convention . These also include Austria and Belgium (Article 98 Belgian International Private Law Act). In the absence of a choice of law, Switzerland generally ties in with the habitual residence of the party who is required to provide the contractual service ( 2) International Private Law-CH). For more details see: Treaty Statute
Since the 1986 reform of private international law triggered by the Spanish resolution , the habitual residence in German private international law has been an auxiliary link for legal relationships connected with marriage, in which both spouses or fiancés have different nationalities. Because of the equality of the sexes, it is not possible to tie in with male law ( Kegelian ladder ).
If the spouses have different nationalities, the law of common habitual residence is used to assess the general effect of marriage among the spouses, the marital property law and the law of divorce if the spouses have not made use of the newly introduced options.
see also: Integration
One advantage of the law of habitual residence over the law of one's own country is the increased pressure to adapt to domestic legal and moral concepts. Germany, Austria and Belgium have not been guided by this idea with the guest workers and consider the possibility of naturalization to be sufficient.
Classic immigration countries, especially those of the Anglo-Saxon legal system, often tie in with the law of habitual residence, because this promotes the integration of foreigners through high pressure to adapt to the legal and values of their permanent residence. But Switzerland, too, is attaching greater weight to the integration requirement by linking the personal statute to habitual residence.
Ease of application of the law
The simplicity of the application of the law speaks in favor of applying the law of habitual residence. German courts and authorities are often not familiar with foreign legal systems. These must first be determined by an expert. The stay as a connecting factor leads to a much less frequent application of foreign law.
The German legislator, however, did not attach great importance to this point of view. The objection of the higher expenditure of legal research is no longer so significant if the states mutually meet each other in the context of international legal assistance . For example, in marriage law a certificate of no impediment been created in which a foreign authority the German registrar assures the existence of a specific law and thus an elaborate research on the capacity to marry a foreign fiance can be omitted by German authorities.
Other connecting factors
For rights and legal relationships that do not affect personal rights, nationality and habitual residence are not suitable for determining the closest legal system. This ties in with the place where an action took place that is formative for the claim .
Place of performance
see also: Treaty statute
In the case of an employment contract, in the absence of a choice of law, the law of the state in which the employee usually performs his services applies (2) No. 1 EGBGB). A temporary dispatch to another country is harmless. A choice of law must not lead to the employee being deprived of industrial property rights. This regulation also follows Article 6 of the European Debt Treaty Convention. Similarly, Paragraphs 1, 2 of the International Private Law Law CH with a somewhat restricted choice of law.
This connecting factor is intended to counteract the “work contract model”. In this case, a domestic company, instead of hiring employees itself, concludes a contract for work with a foreign company which, with the help of its employees, performs certain work in Germany. The connection to the usual place of performance should mean that a domestic company cannot circumvent domestic labor law by engaging a foreign "middleman". On the other hand, z. B. German employees who work temporarily for a German company abroad are not immediately subject to foreign labor law.
If there is no state in which the employee usually performs his services, the place where the branch where he works is based is used as an auxiliary link (Article 230 (2) No. 2 EGBGB).
scene of action
Real rights that exist in a property are subject to the law of the location of the property. This is regulated by Paragraph 1 of the EGBGB, Article 87 § 1 of the Belgian International Private Law Act and expressly International Private Law Act-CH. The property statute is immutable. Fahrnis is subject to the law of the state in which the Fahrnis is currently located (Article 43 Paragraph 1 EGBGB, Article 87 §1 Belgian International Private Law Act). The driving license is changeable. Switzerland and Belgium are loosening up the connecting factor of the rei sitae. In the case of goods in transit, the law of the country of destination ( , 88 Belgian International Private Law) is decisive.
In international property law , the principle of separation and abstraction must be observed. The real contract, through which immediately real rights arise, is to be assessed according to the location. Of course, the law of the place where the thing was located at the relevant time, which is relevant for the right in rem (time of acquisition, loss, exercise, see International Private Law-CH) .
The contractual statute of a contract which has a real right to a property or a right to use a property or is subject, unless otherwise stipulated, to the law of the location of the property ( Paragraph 3 EGBGB).
The register location can be used as a connecting factor. In German international private law, this happens in the case of registered civil partnerships ( ) Paragraph 1 Clause 1 EGBGB. In the case of a registered civil partnership, the law of the place of registration is more relevant than the law of the home country. If one were to take into account the home law, a foreigner whose home law does not recognize a civil partnership would be denied the establishment of a civil partnership.
Several states, such as B. England, apply to a society the law of the state in which the society was founded (foundation theory). The place of incorporation is the place where the company was entered in the commercial register. So far, Germany and Austria have followed the seat theory. The ECJ , however, sees this as a violation of , EC Treaty . A ministerial draft by the German government is therefore planning to switch to the law of the register locations.
- Christian von Bar : International Private Law. First volume: general part . CH Beck Verlag, Munich 1991.
- Hoffmann von Firsching: JuS series of international private law. 5th edition. CH Beck Verlag, Munich 1997.
- Jan Kropholler : International Private Law. 6th edition. Mohr Siebeck Verlag, 2006.
- critical of this Jan Kropholler International Private Law § 38 I to III
- z. B. as a result of the coexistence of the principle of parentage and birth, naturalization of women upon marriage, etc.
- Jan Kropholler §39 I lit.b
- This does not apply to an employment contract or a contract that has a right in rem or a right to use property.
- Hoffmann von Firsching IPR 5th edition. JuS series of publications, §12, paragraph 21
- Heinrich in Palandt Article 17b EG, paragraph 2
- Overview of the states with the founding theory of Staudinger-Großfeld International Company Law, paragraph 118ff.
- Christian von Bahr, IPR Volume II, paragraph 619
- Judgment of November 5, 2002, case C-208/00, EuGHE I 2002, p. 9919 ff. ("Überseering") and judgment of September 30, 2003, case C-167/01, EuGHE I 2003, P. 10155 ff. ("Inspire Art")
- Law on international private law of companies, associations and legal persons