Means of order
The legal term regulatory means ( Art. 5 et seq. EGStGB , § 177 to § 182 GVG ) denotes certain judicially ordered sanctions in German law.
This includes the judicial orders against those involved in the process or spectators, which serve to maintain order in the legal proceedings and to ensure that the proceedings are carried out properly . They are used to punish improper behavior or to force certain behavior. They are threatened in numerous procedural regulations.
On the other hand, regulatory means are sanctions for the enforcement of injunctive relief claims .
Means of order to ensure orderly court proceedings
Means of order are
- removing people from the boardroom,
- the fine and
- the orderly custody.
The most common use cases are
- in the case of witnesses, the non-appearance without sufficient excuse , the unjustified refusal to testify (see also: right to refuse to testify ) and the unjustified refusal to take the oath.
- in the case of spectators, witnesses, experts and the accused, violations of the orders of the court chairman.
- Inappropriate (impropriety) in court.
Means of order are not permitted for defense counsel, the representative of the public prosecutor's office (including trainee lawyers), lay judges and assessors.
A fine can also be imposed on a party (but not custody in order to do so) in the same way as on a witness if they do not comply with a court summons ( Section 141 (3) ZPO).
No means of order can be set against a deceased witness. If a remedy has already been established and an appeal against the imposition was pending at the court at the time of death, the proceedings must be discontinued by resolution.
fine
Administrative fine as a sanction is the obligation to pay a cash payment ordered by the court. The order is often immediately combined with the threat of custody in the event that the fine cannot be collected.
Orderly
A threatened deprivation of liberty in the event of the above-mentioned violations is custody. It may only be ordered by a judge.
In criminal proceedings, it can be imposed from 1 day to 6 weeks ( Art. 6 (2) EGStGB). It is regulated by law in Section 70 (1) of the Code of Criminal Procedure (StPO). Section 70, Paragraph 2 of the Code of Criminal Procedure also provides for the possibility of proxy for up to six months.
Ordinary detention or custody is terminated when the witness declares himself ready to testify. Unless the witness only pretends to be ready, the mere notification of the witness's change of will must lead to the immediate termination of the detention.
If the measures have been exhausted, they cannot be repeated in the same or in another procedure that deals with the same offense ( Section 70 (4) of the Code of Criminal Procedure).
For civil proceedings, section 380 of the Code of Civil Procedure (ZPO) provides a corresponding regulation if the witness is absent. If a witness is repeatedly absent, the measures can be ordered several times. A compulsory presentation of the witness can then be ordered. Criminal detention or custody if the certificate is refused is regulated in § 390 ZPO.
Fine and proper custody according to § 890 ZPO
German law in Section 890 of the German Code of Civil Procedure uses a different concept of regulatory money and regulatory detention . There it concerns the civil law enforcement in cases in which the debtor is obliged to refrain from an act (e.g. use of a third-party brand, dissemination of a false assertion of fact, physical approach to the creditor) or to tolerate an act (e.g. neighbors entering the property to repair the fence).
If the debtor violates his obligation despite the threat of regulatory measures ( Section 890 (2) ZPO), the court can impose a fine within the legal framework of up to 250,000 euros or (alternatively or alternatively) orderly detention. This determination is ex officio in favor of the state treasury.
The debtor has no right to choose whether he would rather pay or go to prison.
Demarcation from the legal concept of coercive means
Ordinary detention should not be confused with compulsory detention . Obsessive serves both as a means of coercion of administrative enforcement . On the other hand, penalty payments and compulsory detention according to § 888 ZPO serve the enforcement of an obligation of the debtor to carry out an unjustifiable act (which only he can perform himself).
