Voluntary jurisdiction (Germany)

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The term voluntary jurisdiction in Germany denotes a part of the ordinary jurisdiction which , in contrast to the contentious civil jurisdiction, does not proceed according to the Code of Civil Procedure (ZPO) in certain civil matters , but rather according to the law on the procedure in family matters and in matters of voluntary jurisdiction ( FamFG).

Voluntary jurisdiction covers both tasks of the law , by judges, as well as tasks of the Administration of Justice , by judicial officers ( § 3 RPflG ) or notaries are perceived.

Legal basis

On September 1, 2009, the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG) replaced the law on matters of voluntary jurisdiction (FGG).

Voluntary jurisdiction matters

What matters of voluntary jurisdiction are, owing to the differences in the objects of the proceedings, eludes a general definition and is therefore determined solely by the allocation by law ( Section 1 FamFG).

Matters of voluntary jurisdiction are in particular:

Matters of voluntary jurisdiction are beyond those regulated in the FamFG itself also those which are assigned to the courts by federal law. These include, for example, the land register matters according to the land register order ( Section 23a (2) No. 8 GVG , Section 1 (1) sentence 1 GBO) and the ship register matters ( Section 23a (2) No. 10 GVG).

Voluntary jurisdiction matters primarily concern legal interests of general interest such as the best interests of the child, public safety or public belief . But it is also assigned certain disputes, such as

  • Real disputes of a private law nature in which parties with opposing interests oppose each other and the court decides on the subjective rights of those involved, e.g. family disputes ( Section 112 FamFG)
  • Public-law disputes in which a party and a public-law corporation or authority are facing each other and the assertion of subjectively public-law rights is at issue, for example certain corporate law proceedings in connection with insurance and stock exchange supervision ( § 375 No. 13, 14 FamFG) or agricultural matters about the notification of land leases and their complaints by the lower agricultural authority ( Section 23a (2) No. 9 GVG, Section 1 No. 1 LwVfG , Sections 2, 4, 7, 8 Land Lease Traffic Act).

Procedure

There is no lawsuit in voluntary jurisdiction . The court acts ex officio or upon application . There are no plaintiffs and defendants , but participants, some of whom are also referred to as those affected or as applicants and opponents. The applicant is involved in the application process . Other people must or can be involved in the procedure ( Section 7 FamFG). Mostly there is no compulsory lawyer ( § 10 FamFG). If a negotiation, discussion or hearing takes place, it is generally not public ( Section 32 (1) sentence 1 FamFG, Section 170 GVG ). In many cases, decisions are made on the basis of the files without an oral hearing .

While the principle of negotiation (provision principle) prevails in disputed processes , there is the principle of official investigation ( Section 26 FamFG) in voluntary jurisdiction , i.e. H. the court itself decides which investigations it will conduct and which evidence it will use.

Final decisions are not made by judgment , but by resolution ( Section 38 FamFG), which can be challenged with complaints and legal complaints . The court can take a provisional measure by means of an interim order ( Section 49 FamFG).

The court decides on the bearing of the costs at its own discretion ( Section 81 FamFG).

On the enforcement are essentially the provisions of the Code of Civil Procedure applies by analogy ( § 95 FamFG).

costs

Costs (fees and expenses) of the courts are levied in matters of voluntary jurisdiction according to the Court and Notary Fees Act.

See also

literature

  • Bassenge, Roth (2009): FamFG / RPflG: Law on the procedure in family matters and in matters of voluntary jurisdiction. Verlag Müller; Heidelberg, 12th edition, ISBN 978-3-8114-3607-7
  • Bork, Jacoby, Schwab and others (2009): FamFG: Commentary on the law on the procedure in family matters and in the matters of voluntary jurisdiction Gieseking Buchverlag, 1st edition, ISBN 978-3-7694-1051-8
  • Bumiller, Harders (2009): Voluntary Jurisdiction: Commentary on the new FamFG. Beck Juristischer Verlag, 9th edition, ISBN 978-3-406-58188-5
  • Keidel, Engelhardt, Sternal (2009): FamFG Familienverfahren. Voluntary Jurisdiction: Voluntary Jurisdiction. Beck Juristischer Verlag, 16th edition, ISBN 978-3-406-58902-7
  • Knöringer (2009): Voluntary Jurisdiction: Examination Course. Procedural principles, estate, land register, guardianship and care matters Beck Juristischer Verlag, 4th edition, ISBN 978-3-406-52537-7
  • Sebastian Mensch (Hrsg.): Handbook of voluntary jurisdiction . Neckar-Verlag, 2017. ISBN 978-3-7883-0952-7
  • Kersten / Bühling, form book and practice of voluntary jurisdiction , 26th edition, Cologne 2018, publisher: Carl Heymanns, ISBN 978-3-452-29008-3 ( online )

Web links

Individual evidence

  1. ↑ cf. Section 492 FamFG; Art. 7 of the law on the transfer of tasks in the field of voluntary jurisdiction to notaries of June 26, 2013, Federal Law Gazette I p. 1800
  2. ↑ Law on the transfer of tasks in the field of voluntary jurisdiction to notaries DIP ID: 17-23592
  3. ^ Draft of a law to reform the procedure in family matters and in matters of voluntary jurisdiction (FGG Reform Act - FGG-RG) BT-Drs. 16/6308 of September 7, 2007, p. 175
  4. ↑ Law on the notification of and complaints about land lease contracts (Land Lease Traffic Act - LPachtVG) of 8 November 1985 (Federal Law Gazette I p. 2075)