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A legal loophole (or legal loophole , in criminal law also criminal liability loophole , in tax law tax loophole ) is a term from the legal policy discussion, a political catchphrase and a term from legal methodology that describes a constellation in which the legislature has not regulated a case that it has would have clearly regulated if he had recognized the need for regulation. According to Canaris , the gap is an “unintended incompleteness within positive law, measured against the standard of the entire applicable legal system”. No legislator can foresee all future conflicts. Every law, with its abstract language and because of the variety of living conditions and their constant change, is necessarily incomplete.

Concept of the gap

By interpretation in the narrower sense, one makes a selection from the various meanings that are compatible with the possible sense of the word. Filling a loophole in the law is, on the other hand, a legal development that deviates from the wording of the law and depends on additional requirements. There is a loophole in the law when one compares the need for regulation with the existing statutory law. A loophole in the law that needs to be filled exists when a legal problem is not regulated in the law or not regulated in the way that one would expect if the interpretative principles of methodology were applied correctly.

Types of gaps

The following types of gaps can be distinguished:

a) According to the standard of grammatical, subjective or objective interpretation:

  • Standard gap : incompleteness or ambiguity of an individual standard , e.g. B. Section 463 sentence 2 BGB .
  • Regulation loophole : A regulation as a whole, i. H. an internally related complex of individual norms is incomplete (e.g. culpa in contrahendo ( culpa in contrahendo ); contract with protective effect in favor of third parties).
  • Legal or territorial loophole : There is no provision for an entire area of ​​life that would be expected according to the principles of subjective or objective interpretation. Example: According to Article 117 of the Basic Law , marriage and family law, which contradicted Article 3, Paragraph 2 of the Basic Law, ceased to be in force on March 31, 1953 , although a new legal regulation did not yet exist. This gap was filled by new judicial legislation, until the Equal Rights Act was passed in 1957 .

b) According to the standard of the subjective-teleological interpretation:

  • Legal training that goes beyond the law : This is a legal training that runs counter to the purposes of the legislature. The legal institution of the "loss of the business basis" was already developed by the Reichsgericht and then also by the Federal Supreme Court due to a lack of legal regulation. Since January 1st, 2002 there is a legal regulation in § 313 BGB. The Federal Constitutional Court has affirmed the competence of the judges to “creative law finding”, even for further legal training contrary to the express will of the law (“contra legem”, see below): “This is especially true if the living conditions and legal views differ between the creation and application of a law have changed profoundly like this century. The judge cannot avoid a possible conflict between the norm and the material ideas of justice of a changed society by referring to the unchanged wording of the law; he is forced to use the legal norms more freely if he does not want to miss his task of speaking 'law'. "

c) A distinction can be made within the legal loopholes:

Open and hidden loopholes:

  • A loophole is open if the law does not contain a rule for a case group, although it should contain a rule according to the standards of subjective or objective interpretation (e.g. § 463 sentence 2 BGB).
  • A loophole in the law is covered if the loophole consists in the lack of an exception to a rule (e.g. § 400 BGB).

Conscious and unconscious loopholes depending on

  • whether the legislature has deliberately left a legal question open in order to leave it to the case law for clarification, or
  • whether the legislature has overlooked the legal issue (e.g. fault when concluding a contract).

Closing the gaps

The competence to close loopholes in the law lies primarily with the legislature itself. In many cases, however, loopholes are only noticed by the courts. These, too, can close loopholes in the law if considerations of justice so require and outweigh reasons of legal certainty and the separation of powers, which speak in favor of respecting the formal law. However, the case law must also comply with the will of the legislature when filling gaps in the law and therefore decide in accordance with the presumed will of the legislature .

As a rule, the judicial gaps must be filled by comparative thinking, i.e. in such a way that essentially the same is treated equally, essentially unequal is treated differently: If the wording of the law does not cover cases that should be treated in the same way as the legally regulated cases, this requires an expanding one Application of the legal regulation by analogy (i.e. by equal treatment). If the law also covers (unequal) cases which it should not justly cover according to the purpose of the law - that is, if there is no exception regulation - then this "loophole" must also be closed. This can also be done by applying the law with a restriction (teleological reduction).

Occasionally a legal loophole can even be closed against the actual will of the law (“ contra legem ”) through the case law . For example, contrary to the wording of § 400 BGB (therefore contra legem), “... this possibility was to be affirmed with due attention to the caution required by such an amending but purposeful restriction of a prohibition norm, because otherwise the purpose pursued by the law would be granted to pensioners protect, would be turned into its opposite ”. However, this does not apply in cases in which legal certainty takes priority. Thus it is constitutionally inadmissible to extend the scope of a criminal norm beyond its actual literal meaning to the detriment of the offender (prohibition of penalizing and aggravating analogy; imprecise: prohibition of analogy): Art. 103 (2) Basic Law prohibits the use of analogy to justify or exacerbate criminal offenses. In this respect, any interpretation that extends the facts and goes beyond the possible literal sense is inadmissible.

The requirement of certainty also obliges the legislature itself to describe the prerequisites for criminal liability so precisely that the scope and scope of the criminal offenses can be recognized by the addressees of the law itself and can be determined and specified through interpretation. The requirement of certainty addressed to the legislature corresponds not only to the prohibition of analogy directed to case law, but also to a prohibition of retroactive effect : If an act was not expressly punishable at the time of the offense, it cannot be punished.

The same applies if the legislature has indicated by means of an enumerative list that it does not allow the scope of application to be extended to similar, unmentioned cases ("enumeratio ergo limitatio").

See also


  • Karl Engisch , Introduction to Legal Thought, 11th edition, 2010, chap. VII
  • Karl Larenz , Claus-Wilhelm Canaris, Methodology of Jurisprudence, 3rd edition, 1995, chap. 5
  • Reinhold Zippelius , Legal Methodology, 11th edition, 2012, § 11
  • Eberhard Dorndorf: Outline of the methodology. 2001
  • Jörg Lücke: Provisional State Acts: Interpretation, legal training and constitution using the example of provisional laws, judgments, resolutions and administrative acts. 1991, from p. 78

Web links

Wiktionary: loophole  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Claus-Wilhelm Canaris: The finding of loopholes in the law. 1983, p. 198
  2. See Hans-Joachim Koch, Helmut Rüßmann: Juristische Justification Theory. 1982, p. 254
  3. See Bernd Rüthers: Legal theory. 2005, marginal no. 832 ff.
  4. BVerfGE 34, 269 (288 f.)
  5. BVerfGE 37, 67, 81
  6. Reinhold Zippelius , Legal Methodology, 11th edition, § 11 I c
  7. ^ Annette Guckelberger : The statute of limitations in public law. 2004, p. 311, ISBN 3-16-148374-X
  8. Reinhold Zippelius: The essence of law. 6th edition 2012, chap. 8 b
  9. ^ Karl Larenz: Methodology of Jurisprudence. 1992, pp. 350, 379
  10. BGHZ 4, 153 and 59, 115
  11. BVerfGE 92, 1 [13 ff.]
  12. BVerfG, decision of November 21, 2002 - 2 BvR 2202/01
  13. BVerfGE 71, 108, 114 f.