Place of jurisdiction

As jurisdiction in the legal language of the place of the competent court is called. A distinction must be made between jurisdiction over legal recourse and factual jurisdiction , d. H. the question of which of the courts available at a location (e.g. district court or regional court ) is responsible.

German civil procedure law

General place of jurisdiction

The general place of jurisdiction of a person is that which applies to all actions against this person, unless a special or exclusive place of jurisdiction has been determined in individual cases. In the case of a natural person , it is usually determined by the place of residence or place of residence , and in the case of a legal person or authority by their seat ( Sections 12 to 19a ZPO ). General places of jurisdiction for different persons are regulated as follows:

Place of residence (general place of residence of a party) according to § 13 ZPO,
Extra-territorial Germans according to § 15 ZPO,
homeless persons according to § 16 ZPO,
legal persons according to § 17 ZPO (according to which the seat of the administration is decisive),
Treasury according to § 18 ZPO.
Insolvency administrator according to § 19a

Special place of jurisdiction

Special places of jurisdiction are expressly provided for in the law for specific lawsuits. B. the place of residence of the plaintiff ( §§ 20 to 34 ZPO). The plaintiff has the option of choosing between the general and the special place of jurisdiction. Special places of jurisdiction are:

Place of work in accordance with Section 48 (1a) ArbGG ,
Place of residence according to § 20 ZPO,
Establishment according to § 21 ZPO,
Membership according to § 22 ZPO,
Property and object according to § 23 ZPO,
Inheritance according to § 27 ZPO,
Place of performance according to § 29 ZPO,
In the case of door-to-door sales in accordance with Section 29a , unless the action is directed against the consumer (in this case the exclusive place of jurisdiction applies at the consumer's place of residence).
for transports according to § 30 ZPO,
for asset management according to § 31 ,
unlawful act according to § 32 ZPO or § 20 StVG ,
in the case of counterclaims pursuant to Section 33 ,
Cost actions according to § 34 ZPO.

Exclusive place of jurisdiction

These special places of jurisdiction are partially determined as the exclusive place of jurisdiction and partially as the non-exclusive place of jurisdiction . An exclusive place of jurisdiction is mandatory (which in this respect represents a deviation from the disposition maxim that otherwise predominates in civil proceedings ); the plaintiff can choose between several non- exclusive jurisdictions ( Section 35 ZPO). If no exclusive place of jurisdiction is specified, the parties to a future legal dispute can agree on a place of jurisdiction ( Section 38 ZPO). Exclusive places of jurisdiction are:

more in rem according to § 24 ZPO ( forum rei sitae ),
Rental items according to § 29a ZPO,
in the event of salvage in accordance with § 30a ZPO,
Environmental matters according to § 32a ZPO,
Capital market matters according to § 32b ZPO,
Marriage matters according to § 122 FamFG ,
Dunning procedure according to § 689 ZPO,
Jurisdiction in the foreclosure according to § 802 ZPO,
Lawsuits against a consumer in door-to-door sales § 29c I 2 ZPO,
Lawsuits in business secrecy disputes according to § 15 II GeschGehG.

Agreement on the jurisdiction of the courts (jurisdiction agreement)

A court of first instance that is not competent in itself becomes competent according to Section 38 (1) ZPO by express or tacit agreement ( prorogation ). With the agreement, the legally competent court is also voted out ( derogation ).

The prerequisite is that the contracting parties:

Merchants ,
legal persons under public law or
are special funds under public law.

In addition, an agreement on the place of jurisdiction for the first instance can be made under certain restrictions if one of the contracting parties does not have a general place of jurisdiction in Germany.

Special rules exist for an agreement after the dispute arises or in the event of a relocation or an unknown whereabouts of a party.

A special case is also the jurisdiction by virtue of unrepentant admission , which results solely from the behavior of the defendant ( § 39 ZPO).

"Flying jurisdiction"

According to the rulings of the higher courts, following the rulings on press offenses as early as the 19th century, a so-called “flying place of jurisdiction” according to § 32 ZPO was established at the places where a printed work came to be known (so that the plaintiff can actually choose the place of jurisdiction). The flying place of jurisdiction for (criminal) press offenses itself was abolished by the law of June 13, 1902 through Section 7 (2) of the Code of Criminal Procedure for demands from a broad phalanx of legal scholars, including an expert opinion by Franz von Liszt for the 25th German Jurists Conference in 1900 .

A transfer of this view to internet publications had been rejected by the Bremen Higher Regional Court : The plaintiff could not choose the place of the court arbitrarily. The decision of the OLG Bremen has not yet prevailed; The regional courts, for example in Hamburg (ZK24), Berlin (ZK27), Nuremberg (ZK11) and Cologne (ZK28), still decide in accordance with Section 32 of the German Code of Civil Procedure and consider themselves responsible for Internet publications, even for publications abroad, although the Federal Court of Justice here requires a special "domestic reference".

The Federal Ministry of Justice has taken on the problem and wants to react with a change in the law. So far, however, this has only been initiated for so-called file sharing processes.

With regard to alleged or actual copyright infringements, the Hamburg District Court has spoken out against the assertion of a flying place of jurisdiction at the Hamburg District Court and subsequently passed the proceedings to the Berlin-Charlottenburg District Court .

The floating place of jurisdiction has so far meant that complaints against the media are particularly likely to be brought to the press chambers in Hamburg or Berlin due to the expected more affected-friendly jurisdiction . This also applies if, for example, a Munich resident sued a Munich media company. There was also a case in which the Dresden district court did not forbid the local Dresdner Morgenpost from being published in print, but the Hamburg district court forbade the same article on the Internet because it could also be read in Hamburg. Complaints about the naming of former Stasi employees are also gladly transferred to these courts. It is also possible to bring actions for injunctive relief to several courts at the same time because of the same publication, in the hope that at least one court will rule in favor of the application.

German criminal procedural law

In criminal law, the place of jurisdiction can result from several things:

Crime scene: "The place of jurisdiction is established at the court in whose district the crime was committed.", Section 7 (1) StPO
Place of publication (for pamphlets, press offenses), Section 7 (2) StPO
Residence or whereabouts of the accused, § 8 StPO
Place of seizure, § 9 StPO
Home port / airport for German ships and aircraft, § 10 StPO

There are legally specific places of jurisdiction for criminal offenses outside the territorial waters that were not committed on German ships ( Hamburg , § 10a StPO), and for offenses abroad by soldiers in special foreign employment ( Kempten , § 11a StPO).

Swiss law

Civil proceedings

Art. 30 para. 2 of the Federal Constitution stipulates that civil claims must generally be heard at the place of residence of the defendant.

The Code of Civil Procedure (Art. 9 to 49 ZPO) gives rise to further regulations on the place of jurisdiction in civil proceedings. The following places of jurisdiction apply:

for actions against natural persons: the domicile of the defendant, or at the usual place of residence of the defendant,
in the case of lawsuits against legal persons and public institutions: their seat,
for actions against the federal government: the higher court of the canton of Bern, or at the higher court of the canton where the plaintiff has his (residential) seat,
for actions against the canton: a court at the canton's capital.

If the law does not specify a mandatory place of jurisdiction, the parties to the dispute can have existing or future disputes resolved by a place of jurisdiction of their choice. This agreement must be in writing.

If the defendant does not object, the procedure will be carried out at the court seised, even if it would otherwise not have jurisdiction.

If one party is based in Switzerland and the other party is based in a member state of the European Union , the place of jurisdiction in civil and commercial matters is determined in accordance with the Lugano Convention .

Criminal proceedings

According to the Code of Criminal Procedure , the place of jurisdiction at which the act was committed (crime scene principle) is responsible. Sections 31 to 42 StPO regulate the place of jurisdiction in criminal proceedings.

If only the place where the act was successful is in Switzerland, then this place is the place of jurisdiction.
If the same crime has been committed in several places, or if the success of the crime has occurred in different places, the authorities of the place which first carried out the persecution are responsible.
If a criminal offense has been committed abroad, or if the scene of the crime cannot be determined, the place of residence or the place of residence of the accused is the place of jurisdiction.

According to § 35 StPO, the place of jurisdiction for criminal offenses committed through publications is:

the seat of the media company,
if the author is known, however, at the place of residence or whereabouts of the author or at the place where persecution was first carried out. In the case of complaint offenses, the victim can choose between the two places of jurisdiction,
if no place of jurisdiction is responsible according to the above regulations, the place where the media product was distributed is the place of jurisdiction. If the media product was distributed in several places, the place of jurisdiction is the place where persecution was first carried out.