Formal law

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As a formal right is referred to in the law all of the legal standards that the enforcement of the substantive law serve.

General

Formal law presupposes the existence of substantive law. The latter regulates the content , creation , change , transfer and the expiry of rights . The links between material and formal law are so close that formal law is inconceivable without material law, and vice versa. Substantive law usually needs to be specified and implemented, which are regulated by formal law. Substantive and formal law complement each other and both must be fulfilled in order to be legally effective:

  • Substantive law determines what legal subjects are allowed to do and what not, it regulates “being right”.
  • Formal law, on the other hand, regulates the bringing about of legal success , the “getting right”.

Reinhold Johow decided in 1880 to separate the two areas of law into formal and material law. While he saw the ZPO as the most important part of formal law , substantive law should "take shape in the civil code".

Formal-legal and substantive-legal laws

Essential laws with material content are in particular the BGB , HGB or StGB . They regulate how rights with a certain content are created, transferred or changed and how they expire. However, BGB, HGB and StGB do not regulate how a legal entity can enforce these rights. Rather, this happens through formal law, which is codified, for example, in procedural law ( civil procedural law : ZPO , criminal procedural law : StPO ) or court organization and court procedural law.

example

The main performance obligations resulting from a purchase contract are, according to Section 433 (1) BGB, the handover of the purchased item and its transfer to the buyer and, according to Section 433 (2) BGB, acceptance of the purchased item and payment of the purchase price by the buyer. If at least one of the contracting parties fails to perform , at least one out of four deficiencies is present. For the buyer, these are default in payment , default in acceptance and (on the part of the seller) default in delivery and defective delivery . For example, if the buyer does not pay the purchase price or does not pay it on time, then it is a case of payment default. Arrears occur in contractual payment dates or credit terms to the calendar date in accordance with § 188 BGB automatically, without a reminder needs ( § 286 , para. 2 BGB). In other, non-calendar-specific payment delays has creditors after entering the due date (a reminder to send that sets the debtor is in default § 286 1 para. BGB). According to § 286 para. 4 BGB the debtor has his arrears represented what in money debt is suspected, because it applies the principle "money you have to have."

There are no regulations on the enforcement of a purchase price claim in the BGB. The seller can only enforce his purchase price claim with the help of formal law. To see §§ 688 et seq. ZPO the enforcement proceedings before whereby the seller at the competent enforcement court a Mahnantrag ( § 690 ZPO) on adoption of a payment order shall provide that the buyer to § 693 ZPO delivered is. Without objection by the buyer, the enforcement court will issue an enforcement order ( Section 699 ZPO) upon request , which must be served ex officio . If all the prerequisites are then met, the bailiff can, according to Section 802a, Paragraph 2, No. 4 of the ZPO, seize and dispose of physical property with the buyer ( debtor ), whereby the bailiff receives money , "valuables" (such as jewelry or paintings ) and securities from the debtor in possession must take ( § 803 Abs. 1 ZPO), while maintaining the Unpfändbarkeitsregelungen of § 811 ZPO and §§ 850 et seq. ZPO has to be observed. The proceeds attached to the debtor are then transferred to the seller to offset his purchase price claim.

Procedural law

Formal law is also often referred to as procedural law when it comes to enforcing the rights and obligations set out in substantive law between the various parties with the help of the courts. In the so-called knowledge process , the Code of Civil Procedure governs the recording of all decisions of significant facts by the competent court for the determination of the judgment , the then state coercion in the so-called enforcement procedure (ZPO) or criminal (CCP) can be enforced.

However, this procedural law is only part of the formal law. The latter also includes, among other things, the extensive legal area of formal land register law , which prescribes how the substantive land register law can be specifically enforced, namely by application ( § 13 para. 1 GBO ) by one of the parties and approval ( § 19 GBO) of the person whose Right is affected by an entry or deletion . The land register ruling (GBV) also contains formal legal regulations. Since the land registers are kept by the local courts and the decisions of the court have a constitutive (legal) effect, it is better to speak of the "land register court". The land registry court exercises jurisdiction , since the decision of the judicial officer changes the substantive law. In a land purchase agreement, a non-owner becomes an owner as soon as material and formal land register law has been met.

Other countries

As in German law, the terms were also formed in France ( French droit formula and French droit matériel ) and Italy ( Italian diritto formale and Italian diritto materiale ). In contrast, in other countries the more serving function of formal law is emphasized, for example in Spain ( Spanish derecho adjectivo in relation to Spanish derecho materia or Spanish derecho sustancial / sustantivo ) and in English-speaking countries ( English adjective law in relation to English substantive law ) .

Individual evidence

  1. ↑ a b Josef Aulehner: Grundrechte und Gesetzgebung , 2011, p. 17.
  2. ↑ Rainer Pitschas: Administrative Responsibility and Administrative Procedure , 1990, p. 292 ff.
  3. ^ Herbert Lionel Adolphus Hart : The concept of law , 1973, p. 135.
  4. ↑ Reinhold Johow: Draft of the Civil Code for the German Empire: Property Law , 1880, p. 1953.
  5. ↑ Justus Meyer : Commercial Private Law: An Introduction , 2017, p. 7.
  6. ↑ Wolfgang Boiger: Materielles Recht , 2014, p. 66.