Element detection
According to German law, a determination of elements can be the result of an action for declaratory judgment according to Section 256 (1) ZPO . The aim of the action is to establish elements of a legal relationship . In principle, a determination of elements is inadmissible, but the Federal Labor Court in particular makes exceptions, for example when it comes to the crediting of periods of employment in the company pension scheme . A form of status action in labor law is also common, in which a decision is only made about a person's employee status.
Individual elements of a legal relationship are legally relevant for that one, but, unlike a partial legal relationship, do not themselves form a legal relationship, as they do not entail any rights, obligations or legal consequences. However, they can be the prerequisite for the creation of a right or an obligation related to it. Legally significant properties of a person or thing also count among the elements of a legal relationship.
The reservations about elementary determinations also stem from the fact that - similar to the declaratory judgments - they are sometimes in the vicinity of judicial legal opinions , the reimbursement of which does not correspond to the idea of a judicial function. However, if a judgment in accordance with exceptional provisions such as Section 55 (1) Nos. 1, 2, 4 and Section 55 (2) SGG or Section 130 (2) SGG establishes elements of a legal relationship in isolation, a material res judicata effect is to be assumed. If one wants to clarify the works council capacity of a company in a legally binding manner by identifying elements , § 18 para. 2 BetrVG occurs under the exceptions permitted by law. The determination of the employers' ability and responsibility for tariffs, made possible in conjunction with Section 2a (1) No. 4 ArbGG by Section 97 ArbGG - or employee organizations amounts to a determination of elements - again an exceptionally permissible one.
An example of an inadmissible determination of elements is a “dependent employment relationship” of a student who was temporarily employed as a promoter and was determined by the DRV in 2001 . The pension insurance agency is authorized to determine the social security obligation, but not to determine the employment. Employment is an element of compulsory insurance; it is necessary for compulsory insurance, but not sufficient. Since the DRV had consulted § 7a SGB IV , the Federal Social Court decided in 2009 that this paragraph does not authorize the determination of elements of dependent employment.
literature
- Matthias Jacobs: The subject of the determination procedure. Legal relationship and legal interest in declaratory disputes before civil and labor courts , Verlag Mohr Siebeck, Tübingen 2005
