Legal comment

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A legal commentary (in legal jargon short comment ) is in the legal system , the legal explanation of the paragraphs or items of one or more laws to be used in practice or study .

General

Legal comments critically deal with the interpretation and explanation of laws or other regulations. The legal language is mostly abstract in order to be able to grasp a large number of everyday situations. As a result, it is not always easy, even for a legally trained reader, to understand the meaning of all formulations used in laws, their relationship to one another and the overall context. Comments should therefore help all interested parties to apply the laws correctly.

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Comments use as sources for new laws the government draft laws or bills of the government and other institutions , which contain the "official reasons" for the enactment of laws. Furthermore, the case law is evaluated on the basis of relevant decisions of the courts on statutory provisions and the author's own considerations are taken into account. Commentaries deal with legal dogmatic aspects as well as criteria of legal methodology . In addition, legal publications are evaluated. An important source for commenting on the BGB , which the Federal Court of Justice also uses in its judgments, is the "entire material on the Civil Code for the German Empire" from 1899 by Benno Mugdan .

The explanations in the legal commentaries are partly provided by scientists (professors) and also by practitioners ( judges , notaries , lawyers and members of the public service ).

species

Depending on the scope and level of detail, a distinction is made between short commentary , hand commentary , multi-volume large commentary and study commentary . Short comments on relatively compact laws can also reach 2000 pages (e.g. Harald Hans Körner , BtMG ). There are commentaries as bound books as well as loose-leaf works , with one or more supplementary deliveries appearing per year, depending on the work. For some time now, legal comments have also been published electronically as an online version, either exclusively or in addition to the print version.

One of the most important comments on German civil law is the Palandt (named after its first editor Otto Palandt ), in which the BGB and other subsidiary laws have been explained since the first edition in 1939. This comment is a short comment that appears annually. The 79th edition in 2020 has already reached around 3400 pages in thin print and is at the limit of manageability. The comment published by the then President of the Reich Justice Examination Office, Otto Palandt, was a resounding success for the publisher, and it is probably the most successful legal commentary. Examples of large commentaries that only appear every several years and that comprise several volumes are the Munich Commentary on the Criminal Code (“MünchKomm” or “MüKo” for short) or the Staudinger , named after its first editor Julius von Staudinger .

shape

Legal comments are usually structured in the order of the paragraphs of a law. This order is usually not chosen arbitrarily by the legislature , but according to methodological criteria. The aim of the commentary is to define the scope of a law and to subsume cases of everyday life under the provisions . In a comment , legal norms are explained abstractly and using examples, and their connection with other legal norms is explained. It is by no means uncommon for a single sentence in a law to result in pages of comment.

Practical relevance

Legal comments are extremely important in legal practice. Since they are not official publications, compliance with them in legal transactions is not mandatory. For judicial independence it belongs, legal issues for his own conviction to decide. For this reason, he cannot be required to subscribe to a specific view expressed in jurisprudence and literature. In some cases, this is even impossible if, for example, several contradicting opinions are presented next to each other in the comment or comments with contrary statements are opposed to one another. Nevertheless - where there is no case law on a topic and the laws are insufficiently defined - courts very often deal with the content of legal comments in their judgments. These comments make it clearer for the user of the law whether and how a certain legal provision is to be applied to a certain case. For the approach in the sense of a genetic interpretation , legal comments that can be traced back to the legislators themselves play a very important role. The multitude of comments and jurisprudence on a particular topic can lead to the development of a prevailing opinion if several viable solutions are found. Legal comments are usually cited according to the reference standard and paragraph (e.g. "Palandt, BGB, 73rd edition, § 433, marginal number 10").

A distinction must then be made between the unofficial legal comments and actually official legal comments, which can often be found in the parliamentary procedure as an appendix to draft laws, which play an important role in the genetic interpretation in particular .

Web links

Individual evidence

  1. ↑ CH Beck: The legal publishing house since 1763 , in: Juristen im Portrait, Festschrift 225 years CH Beck, 1988, p. 19
  2. ↑ Karl-Friedrich Lenz , The Unusual in Law , 1991, p. 221
  3. ↑ Ruling opinion . In: Der Spiegel , No. 8/1981, February 16, 1981, p. 98.
  4. ↑ Ekkehart Reinelt: Judicial independence and protection of trust . In: ZAP , 2000, p. 969.