International Private Law (Germany)

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The international private law of the Federal Republic of Germany is the part of the German law which decides which (substantive) private law domestic authorities and courts have to apply to a situation with foreign relevance.

Despite its name, only the matters regulated by private international law (IPR) are international, not the corresponding legal norms. The source of the law is national ( German ) law, mainly codified in the Introductory Act to the Civil Code and in special legal regulations. In addition, there are harmonizing legal acts in the European Union , for example for contract law , for parts of tort law and divorce (Rome I, Rome II and Rome III regulations).

The IPR is only applied if a German court has international jurisdiction , which is why there is a close connection to international civil procedural law . There is also a relationship to comparative law .

The decision as to which law is applicable is made in German law by what are known as conflict of law rules . These determine the applicability of the (private) law of a certain state for a certain area of ​​life, the so-called connecting object , based on a so-called connecting factor .

Disambiguation

Historically, the term originated Private International Law from the translation of the English private international law and the French droit international privé (as opposed to droit international public, the international law ). It first appeared in Germany in 1841.

In Germany, Art. 3 aE EGBGB contains a legal definition of international private law as "the applicable law in cases with a connection to a foreign state". The international private law of Germany is that part of the German legal system that determines which national law is applied to a situation (including life or legal relationship ). This only becomes factually relevant if the matter has relationships with several legal systems (so-called foreign contact ).

In contrast, the term international private law is misleading: There is no global supranational regulation for the applicable law. The international private law of Germany is largely national law and does not lead to the decision of private law disputes in the matter . Rather , German IPR is a conflict of laws because several legal systems could regulate the issue and thus, as it were, collide. This is why the Anglo-American legal system also speaks of Conflict of Laws .

Closely related to IPR in the narrower sense is international civil procedure law (abbreviated IZVR), as well as citizenship law and aliens law . PIL is to be distinguished from inter- local private law, which decides within sovereign states which sub-state law is to be applied to a situation (e.g. United States) and from inter- personal private law, which decides within sovereign states which law applies to which ethnic groups ( if the applicable law depends e.g. on religious affiliation). It is to be further distinguished from comparative law , which deals with the comparison of the legal institutions of foreign legal systems.

history

Legal sources

German international private law can be found initially as autonomous German law:

Furthermore, rules on international private law can be found in international treaties . These take precedence over the rules of the EGBGB in their area of ​​application ( Art. 3 (2) sentence 1 EGBGB).

Uniform conflict of laws rules arise as an important source within the framework of judicial cooperation within the European Union . In the long term, these could cover more and more areas of law and superimpose the rules of autonomous German law. So far:

General teachings

Collision rule

How a collision rule works

The substantive norm and the conflict of law norms basically have the same structure ( abstract facts → abstract legal consequence ). While the substantive rule already contains a solution to the question posed in the matter in the legal consequence , the conflict of law rule only refers to a legal system. This reference is called a link . This is carried out as follows: Material law is broken down into different areas of life that belong together (legal system terms), for example contract or divorce (cf. the section special section ). Such an area forms the so-called connecting object . If the legal question to be specifically answered can be classified under a connecting factor, the connecting factor as a legal consequence answers which state law is to be applied. The connecting factor is the characteristic through which the connection between the circumstances and applicable law is created, such as nationality or the place of habitual residence .

Example: Art. 25 Paragraph 1 EGBGB:
Facts: "The legal succession due to death ..." (related subject)
Legal consequence: "... is subject to the law of the state to which the testator belonged at the time of his death." (Connecting factor)

Conflict rules can be differentiated according to various criteria. First of all, a distinction must be made according to the scope of application of the standard. A distinction is made between one- sided and all-sided collision rules. Unilateral IPR norms only instruct the German courts and authorities under which circumstances domestic law is to be applied. It is left open which legal system is to be applied if the domestic one does not apply. On the other hand, universal conflict-of-law rules generally stipulate which legal system applies to the situation with international contact. Under certain conditions, a one-sided standard can be expanded on all sides , for example by applying the standard analogously to all other legal systems. If a norm contains a legal political goal that cannot be generalized, the norm cannot be expanded on all sides. One then speaks of an exclusive standard.

Examples:

Furthermore, conflict of laws rules can be divided into general clauses , auxiliary clauses and escape clauses . General clauses generally subordinate a situation to the law of the state with which it has the “closest connection”. If reference is only made to the “closest connection” in a subsidiary way, compared to the priority specific links, one speaks of auxiliary clauses. If the connection is generally regulated in a concrete way, it can still be deviated from if an escape clause subordinates the facts to the law with which it has the “closest connection”.

Some standards provide different connection options next to each other. One speaks of multiple links. Multiple links can be alternate or cumulative . If a certain area of ​​law is uniformly subject to a legal system, one speaks of statutes, for example the inheritance statute for the law of the state to which the inheritance law is to be subject.

Connecting moments

The most common connecting factor in German IPR is citizenship . Most legal relationships that affect a natural person are regulated by them. This is why one speaks of a personal statute . In continental Europe, the personal statute is linked to the law of one's own country, as this is seen as the closest personal connection to the person concerned. In contrast to Anglo-American law, which is linked to habitual residence , domicile, or place of residence, one speaks of the nationality principle.

If a person has several nationalities, the effective nationality applies according to Art. 5 Para. 1 EGBGB , i. H. the one with whom the person is most closely associated. A refutable indication of this is the stay in one of the two home countries. However, if one of the two nationalities is German nationality, German nationality takes precedence according to Art. 5 Para. 1 Sentence 2 EGBGB. For stateless persons, the habitual residence applies according to Art. 5 Para. 2 EGBGB. However, the New York UN Convention on the Status of Stateless Persons of September 28, 1954, Article 5 (2) EGBGB takes precedence within its scope. In the case of refugees and persons entitled to asylum, it is formally possible to link to their home law, but in these cases it appears inappropriate. According to Art. 12 of the Geneva Convention on the Status of Refugees of July 28, 1951 , refugees are therefore linked to their place of residence (alternatively their place of residence). The scope of the agreement was expanded by its additional protocol of January 31, 1967, the Refugee Measures Act and the Asylum Procedure Act (today's name: Asylum Act ).

If it concerns members of a multi-legal state , its interlocal private law or also interpersonal private law must be observed. German citizenship is assessed according to the rules of the Citizenship Act (in force since January 1, 2000).

The place of residence is no longer relevant in German IPR. The habitual abode has taken its place. Ordinary abode is defined as the place or territory in which a person has their center of life. The individual criteria according to which this is to be determined is controversial. The Federal Court of Justice judges this after the familiarization, d. H. the social integration ( BGHZ 78, 293).

For the form of legal transactions, in the area of legal obligations and for international company law , the place of action exists as a connecting factor. In international property law, the place where the matter is located is linked.

Change of statutes

By changing the relevant fact, the relevant legal system can change. One speaks of a change of statutes. When changing the statutes, the new statute applies ex nunc (from now on), i.e. from the change in the relevant fact. A distinction is therefore made between closed facts and open facts. Completed facts are no longer changed by the new law. If the conditions for the creation or cessation of a right or a legal relationship were not yet fully available at the time of the change in the articles of association, this is an open issue. The new statute now decides to what extent it recognizes conditions that have already been realized and a right or legal relationship arises or disappears.

Example: A, who lives in Switzerland, has had a book by B for five years and two days when he moves to Germany. B, who helps him move, finds his book after crossing the German border and now demands that A hand it over.
Applicable law is German law as the book is located in Germany. After this, a prescription according to § 937 BGB is ruled out because the prescription period of ten years has not yet expired. Nevertheless, A could be the owner. According to Art. 728 of the Civil Code, the retention period in Switzerland is only five years. Since the retention period under Swiss law has expired and A has acquired property, this is a closed offense. B can no longer ask for the book.

qualification

The subject of a conflict of law rule is a system term that is taken from substantive law. A factual situation (according to another view, a legal relationship or, according to yet another view, a factual norm) is to be subsumed under the subject matter of a conflict of law rule . This process is known as qualification .

Example: Article 14 subjects the “general effects of marriage” to a specific law. In order to find out whether a certain life issue is to be counted among the general effects of the marriage, it must be subsumed under the norm, the problem is qualified .

The subsumption under a norm is a common legal process, but afflicted with special problems in international private law. These qualification problems can be divided into three groups:

  • System differences between German PIL and foreign substantive law: In these cases, a legal institution of substantive law is systematically assigned in a certain way. In the German conflict of laws, however, it falls under a different system term.
    Example: Does the gift of death belong to contract law ( Rome I regulation ) or inheritance law ( Art. 25 - Art. 26 EGBGB) according to § 2301 BGB ?
  • Foreign legal institutions unknown to German law: There is no known foreign legal institution in Germany. The German IPR does not contain any conflict of laws for this.
    Examples: trust in the common law , the dowry (dowry) in Islamic law , Levirate and Kalitza of Jewish law .
  • System differences between German and foreign substantive law: A legal institution is systematically classified differently in German and foreign law and, depending on the classification, would be subject to different conflict-of-law rules of German IPR.
    Examples: The statute of limitations is often part of procedural law in Anglo-American law , but part of substantive law in German law.

The approaches to solving this problem can be divided into four groups:

Qualification according to the lex causae in the Tennessee change case (RGZ 7, 21)
  • The qualification lege causae : Martin Wolff argued that foreign legal institutions should also be qualified according to foreign law. This is the only way to avoid “clumsy labeling of foreign legal structures”. This view could hardly prevail. It is countered that logically at the time of the qualification the foreign legal system has not been determined.
    Example: In the decision RGC 7, 21 (Tennessee AC case) was made from a in Tennessee drawn exchange ( promissory note ) sued established in Bremen exhibitors. The exhibitor invoked the statute of limitations. In Germany, the statute of limitations is regarded as a substantive legal institute, in the USA as a procedural law institute (a limitation of action ).
    In a decision that Murad Ferid called “immortal disgrace”, the Imperial Court qualified according to the lex causae. This resulted in US law being applicable, but only to the extent that "bill of exchange law" was understood in the US; H. without the statute of limitations that were part of procedural law there. At the same time, German bill of exchange law could not apply, since it was not called upon. The result was a caused by standard defect (s u..) Unverjährbarer changes, although after two limitation period was provided legal systems: "How Ahasuerus , who can not die, it has to change, which can not die haunt imprescriptible through the centuries, even if under the law the place of payment (lex causae) and according to the law of the place of jurisdiction (lex fori) is statute-barred long ago. "
  • The qualification to the law of the forum : According to prevailing opinion, are to be determined System terms of the German IPR even after the system terms of substantive law. An exception applies to international treaties and foreign conflict-of-law rules (for example with renvoi ). These are to be qualified autonomously or according to foreign law.
  • The autonomous, comparative law qualification : Ernst Rabel suggested creating autonomous system terms through comparative law analysis. This proposal failed because of the practical impossibility for the courts to work on a comparative basis around the world.
  • The autonomous, teleological qualification : Gerhard Kegel advocated subsuming facts with comparable international private law interests and the same conflict of law rules.

Adjustment (adjustment)

The qualification can lead to individual situations in life being broken down according to conflict-of-law connecting factors. As a result, the same circumstances in life are no longer uniformly regulated by one legal system. However, different legal systems are not coordinated with one another.

Example: An Egyptian of Islamic faith marries four women in Egypt. He moves to Germany with them. All women separate from him here and demand maintenance. Art. 4 ( Memento of October 14, 2012 in the Internet Archive ) of the Hague Maintenance Convention invokes German law. However, German maintenance law is not tailored to polygamous marriages.

The problems that arise can be categorized as follows:

  • Lack of norms (none of the legal systems involved has a solution to the problem),
  • Accumulation of norms (several legal systems involved solve the problem, but their application leads to an unwanted increase in claims (see example above))
  • qualitative standard discrepancy (direct content -related contradiction of the legal systems involved)

This creates the following contradictions:

  • open norm contradictions (with Gerhard Kegel logical contradictions or contradictions of being ) and
  • hidden , visible only through Evaluation, Standard contradictions (for cone teleological or Sollenswidersprüche ) (see. example above).

To compensate for this deficiency caused by the breakdown, an adjustment is recommended . Either the conflict of laws or the substantive law is adjusted. In the conflict of law solution, the entire issue is subject to a law; Ultimately, the scope of a standard determined during the qualification is redefined. Which right this is depends on a judgmental decision. In the case of a substantive solution, the judge creates a new substantive norm which was not provided for by any of the legal rights, but which best takes account of the facts in terms of value.

Preliminary question

Legal texts often contain normative elements. The question of whether the legal consequence of a substantive norm, the occurrence of which is a prerequisite for a domestic or foreign substantive or conflict of laws rule, can be found in the domestic or foreign conflict of laws is referred to as a preliminary question .

Example: The Greek Orthodox Greeks M and F get married in front of a Greek Orthodox pastor in Germany. According to Greek law, this is sufficient for a valid marriage. M dies. F wants to know if she is an heiress.
The main question is whether F is heiress. This depends on your spouse's position; this is a preliminary question.

The preliminary question could be answered according to German IPR (independent preliminary question link) or according to the IPR of the main question (dependent preliminary question link). According to the prevailing opinion , German IPR is used to answer the preliminary question; this is called independent connection. This is justified as follows: If one were to submit the preliminary question to the IPR of the main question, the preliminary question could be answered differently for various main questions. The simple determination of whether a marriage exists would have to be answered differently within the same legal system depending on the context. In addition, this would also mean that existing German conflict-of-law rules would not be applied.

Independent connection of the preliminary question in the above example: According to Art. 25 EGBGB, the inheritance statute is Greek law . This also follows the nationality principle and accepts the referral in Art. 28 Astikos Kodikas . According to Greek law, your right of inheritance depends on your spouse's position, so it must be decided whether F was validly married to M. Again, the applicable law is to be determined, in the case of independent connection according to German IPR. The form of marriage is to be assessed according to Article 13, Paragraph 3, Sentence 1 of the EGBGB. The church marriage is therefore not enough; marriage is a non-marriage . However, contrary to this principle, a marriage not concluded before the registrar in Germany has legal effects for German law if the requirements of Art. 13 Paragraph 3 Clause 2 EGBGB are met. The prerequisites include that none of the betrothed may be German, the marriage person has been duly authorized by the government of the state to which one of the betrothed belongs and the marriage has been concluded in the form prescribed by the law of that state.

This view allows exceptions in the following cases, which are mostly justified with their close connection to public law:

  • nationality
  • Naming rights
  • Maintenance law
  • social insurance
  • Legitimation through subsequent marriage
  • Legal consequences used outside the system

A minor opinion wants to solve the preliminary question about the IPR of the main question. She wants to avoid so-called limping legal relationships .

Incomplete connection of the preliminary question in the above example: In contrast to the above solutions, Greek private international law now decides on the formal status of marriage. Then the marriage would exist. This would avoid a so-called limping legal relationship, since marriage would exist in both Germany and Greece.

In special cases, however, the inferior opinion also wants to tie in independently. A distinction is made between the following terms:

  • Sub-question: The connections of the IPR are often very broad. In this way, the inheritance statute also covers hereditary and testability. However, if individual regulations are assigned to a special statute, although they should actually be assigned to a further legal relationship, this must be linked independently. For example, the capacity in Art. 7 para. 1 BGB regulated separately.
  • First question: If a legal term already appears in the German conflict-of-law rule, it must be linked independently.
    Example: Art. 19 para. 1 sentence 3 EGBGB: "Is the mother married [...]"

Referral back and forward (renvoi)

How the renvoi works

If German law has determined a legal system for solving the circumstances in life, the question arises whether reference was also made to international private law or only to the material law of this state. A distinction is therefore made between overall references and references to specific standards .

A general reference (also renvoi ) refers to the law of another state including its national conflict of laws. The overall standard reference is therefore also referred to as the IPR reference. It is the rule in German PIL according to Art. 4 Para. 1 Sentence 1 EGBGB. If the foreign PIL refers to a third legal system, this legal system must also be consulted (renvoi au second degré). Whether this second referral also represents an overall normative referral does not depend on the German IPR, but on the person making the referral. A special feature is when a foreign court in its own jurisdiction whatsoever own would use rights: So in Anglo-American countries, the rules for their own international jurisdiction (jurisdiction) , a reference to its own law. According to the prevailing opinion, the German court must apply German law if German jurisdiction is present . Although the conflict of law rule of foreign law refers to its own substantive norms, in this case German IPR also refers to its own substantive law, so to speak, "mirror image". This is called a hidden renvoi.

A reference to a specific standard refers directly to a specific standard from another legal system, excluding foreign conflict of laws, and is only present if the law expressly provides for it or a general standard reference would contradict the meaning of the reference ( Art. 4 (1) sentence 1 EGBGB). A standard reference is generally accepted for formal requirements.

The legal and political sense of the renvoi is not undisputed; Countries such as Greece, Denmark, Norway, Sweden and most of the United States do not use it. Its proponents consider it suitable for achieving international agreement of decisions.

Referral in the event of a legal division

If German IPR refers to a state with multiple rights , three scenarios are possible according to Art. 4 Para. 3 EGBGB.

  • German law already determines the relevant partial legal system: If German law already describes the partial legal system, this applies. This is called a resounding link (example: link to habitual residence).
  • The multi-law state has a uniform inter-local conflict of laws : If the German IPR refers to a state with uniform inter-local conflict of laws, this applies. This is the case in Spanish law , for example .
  • The multi-rule state has no uniform inter-local conflict of laws : If there is no uniform inter-local conflict of laws, for example in the United States, Art. 4 (3) sentence 2 EGBGB contains an auxiliary link to the law of the state with which there is the closest connection. According to the prevailing opinion, this is to be determined autonomously. According to another opinion, the connecting principles of foreign law should be used.

The same applies to states with an interpersonal division of law.

Conditional referral

If German law makes the referral dependent on the fact that the foreign material law is applied, it is referred to as a conditional referral. Such a conditional referral contains, for example, Art. 3a Para. 2 EGBGB: Accordingly, in inheritance and family law there is no referral for assets if the said items are located in another state and are subject to "special regulations" there. If such special regulations exist in the state in which they are located, they will apply; if these do not exist, the law of the state applies, to whose law the conflict of laws of German inheritance and family law refer. The factual regulations of court law (still in place in Poland and Norway) are indisputably “special regulations”. According to the prevailing opinion , this also applies if there are particularities at the level of conflict of laws, such as the splitting of an estate . According to a minor opinion ( Kegel , Schurig , Solomon ), however, the norm is limited to factual legal characteristics of a political or economic nature.

Evasion of the law

As in substantive law, there is also the possibility of circumventing the law (fraus legis) in conflict of laws . It exists when

  • the wording of a legal norm is fulfilled,
  • a circumvented legal norm would be fulfilled without circumvention,
  • a circumvention act and
  • (according to the prevailing opinion ) there is an intention to circumvent and
  • the circumvention act is abusive ( i.e. reprehensible ).

If the court finds that the law is being circumvented, it will apply the rule that should be circumvented.

The circumvention of the law must first be distinguished from the procedural, permissible option of selecting the internationally competent court whose IPR invokes the most favorable material law (so-called forum shopping ). Issues in which a non-existent connection is actually simulated ( example: forging a passport) are not circumvents of the law, but problems of clarifying the facts.

Examples (no circumvention of the law): change of nationality, relocation of the place of conclusion of the contract.
Examples ( circumvention of the law): circumvention of the compulsory portion rights through dispositions among the living, sale of goods abroad with the involvement of a foreign straw man (so-called Gran Canaria cases ).

Application of foreign law

According to the prevailing opinion in jurisprudence and teaching, international private law is to be observed ex officio and not only if the parties refer to it. According to the established case law of the Reichsgericht , a decision in favor of the application of the law of a state cannot be omitted even if the decision of the court remains unchanged after several legal systems to be considered. This case law was partially overturned by a judgment of the Federal Court of Justice on January 28, 1987.

The principle iura novit curia applies to German law , according to which the court “has to know” German law; this also applies to international treaties and uniform international law. If a German court has to apply foreign law, the judge is obliged according to § 293 ZPO to determine the foreign law (in free evidence ). In judicial practice, this is usually done through expert opinions. The parties are obliged to cooperate, especially if they themselves have uncomplicated access to relevant sources. The court must not limit itself to determining the wording of the foreign law, but must also try to determine the legal practice of the foreign law.

For the revision , it has so far been the case that according to Section 545 (1) ZPO, it cannot be based on the violation of foreign law. The BGH has explicitly left open whether, after the amendment to the paragraph on September 1, 2009, foreign law is also revisable. The question is controversial in the literature.

If the content of the foreign law cannot be determined, German law applies in the opinion of the Federal Court of Justice . The prevailing doctrine considers this to be unsuitable, as there are often great differences between German law and non-determinable law. Instead, the application of the probable content of the foreign law or the application of a law invoked by an auxiliary link is considered.

Public policy

The reference to an unknown substantive law ( Leo Raape speaks of the “leap into the dark”) can lead to substantive norms being invoked, the application of which runs counter to essential principles of German law. As a corrective, Art. 6 EGBGB allows under certain circumstances not to apply such a norm. This is called the reservation of ordre public (French ordre public , public order). The public policy can in a positive and a negative function occur: The negative feature is the defense against foreign standards by being not applied; the positive function allows domestic mandatory norms to be applied, although a different law would be invoked in principle. The positive function usually appears in the form of intervention norms . Some of the conflict-of-law rules of the EGBGB also contain a special reservation clause (e.g. Art. 13 Paragraph 2 EGBGB, Art. 17b Paragraph 4 EGBGB, Art. 40 Paragraph 3 EGBGB).

In order for the public policy requirement to intervene, a fundamental principle of the domestic legal system must first be established. Whether the foreign substantive norm or conflict of law norms violates the domestic legal principle cannot be determined from an abstract examination of the norm, but from the result of its application in a specific case . If this result is obviously incompatible with the established principle , the standard does not apply. A violation of domestic legal principles is always to be assumed according to Art. 6 S. 2 EGBGB if German fundamental rights are violated.

Examples of violations: no statute of limitations on a claim, plural marriage, impossibility of divorce.

As unwritten requirement of public policy is domestic connection recognized. The domestic reference is relative to the importance of the German legal principle: the closer the domestic reference, the less the deviation from German legal principles is tolerated. This is called the relativity of public policy. Furthermore, public policy does not necessarily apply if the situation contrary to public policy has already been established abroad and legal consequences are only derived from it in Germany ( effet atténué des public policy ).

If the foreign standard is not applied, the question arises which legal standard has to resolve the issue in its place. It is possible to replace the legal norm with a German legal norm, to apply a comparable regulation of foreign law or to create a new norm that is at the limit of what is still permitted by German public policy .

Example (according to OLG Zweibrücken NJW -RR 2002, p. 581): M and F are married couples with Lebanese citizenship. They are Shiite Muslims. Ms. F wants to be divorced from M, who has been serving a prison sentence for five years, because, according to her description, he had had sexual relationships with a large number of women and accused her of having relationships with other men using outrageous abuse. They married in Lebanon in 1982 and have been living in Germany for more than 10 years. M opposes divorce.
According to Art. 17 Paragraph 1 Clause 1 in conjunction with Art. 14 Paragraph 1 No. 1 EGBGB, Lebanese law is applicable. According to Art. 4, Paragraph 1, Clause 1, Lebanese IPR must now be examined, which here refers to Lebanese law. However, now after 4 Art. Abs. 3 S. 1 BGB addition Lebanese inter personal details to be observed private law, d. H. the rules of the respective religious community apply in family law. According to this, the man's religious affiliation applies, in this case Muslim-Shiite law. A violation of Art. 3 GG (equality of men and women) does not yet exist, since only the application of the foreign norm is decisive for public policy . For divorce, Art. 337 of the law of July 16, 1962 regulating Sunni and Jafarite jurisdiction is not applicable if this - which is the case here - violates Jafarite teaching. Therefore it is important for Shiites , the talaq -Divorce after the Qur'an : The man can violate the woman without her consent, however, enforce the woman a divorce only in male impotence. Since F brings up sexual relations between M and other women, this possibility is ruled out: There is no possibility of divorce for F. This result must now be checked against the standard of German public policy . The violation of a fundamental right is the violation of a fundamental right according to Art. 6 S. 2 EGBGB - the equality of men and women according to Art. 3 (2) GG. It remains to be answered which regulation will take the place of Lebanese law. It would be conceivable to apply German law (according to the OLG Zweibrücken ) and to divorce the marriage according to § 1565 BGB. It would also be conceivable, however, to close the gap by giving the woman the same possibility of divorce as a man under Lebanese law.

special part

Personal law and legal transactions (Art. 7-12 EGBGB)

Legal capacity, naming rights

The legal capacity is determined according to Art. 7 Para. 1 EGBGB for natural persons according to their home law. Some legal systems make viability (Spanish law also “human form”) a prerequisite for legal capacity. According to Art. 7, the end of legal capacity is also assessed, Art. 9 S. 1 EGBGB also contains a link to legal presumption about the declaration of death. However, p. 2 makes the German declaration of death authoritative if "there is a legitimate interest in it."

The legal capacity is also assessed according to the law of the country of origin ( Art. 7 Para. 1 EGBGB). If an extension of the legal capacity occurs through marriage , this is also to be determined according to Art. 7 Para. 1 S. 2 EGBGB according to the law of the home country, not according to the marriage statute. According to the prevailing opinion, the consequences of a lack of legal capacity are also to be assessed in accordance with Art. 7 Paragraph 1 EGBGB; a deficiency is based on the statute of effect. A change in the statutes does not lead to the loss of legal capacity ( Art. 7 Para. 2 EGBGB, semel maior, semper maior ). The wording of the rule is limited to Germans, but it will be expanded on all sides. In order to protect the business partner of someone who is legally competent under (hypothetical) domestic law, but who is incapable of doing so under domestic law, the incapacitated person can only invoke the provisions of his or her home law under Art. 12 EGBGB if the business partner is at least negligent in ignorance of this. The business partner has no obligation to inquire about the nationality and legal capacity of the incapacitated. Even the positive knowledge of the foreign nationality does not harm him.

Art. 10 also subordinates the naming rights to the home statute. This decides how the name is written, whether nobility designations may be used and whether patronyms are added.

Example (according to BGH NJW 1993, 2244): ethnic German repatriates according to § 4 BVFG move from Russia to Germany. You do not want the patronymic, according to Russian law as отчество (otschestwo) part of the name, to be entered in the family register.
According to Art. 10 para. 1 EGBGB, the name is subject to the law of the country of origin. According to Section 9 (2) No. 5 of the FamRÄndG , ethnic Germans are treated as equivalent to German nationals. There has therefore been a change in the statutes. However, one case has already been closed in Russia. Thus, Russian law , which prescribes the patronage, remains applicable. This is therefore also entered.

Form of legal transactions

According to Art. 11 Para. 1 EGBGB, the form of legal transactions is alternatively linked to business law ( lex causae ) or local law ( lex loci actus ) . When referring to mere formal requirements, a reference to a material standard is to be assumed. For distance business, Art. 11 para. 2 EGBGB reinforces the favor negotii : It is sufficient for both declarations of intent to be formally effective if the law of one of the contracting parties is complied with. When doing business with a representative , his / her residence must be taken into account (Art. 11 Para. 3 EGBGB).

Representation

The legal representation is to be judged according to the relevant special (especially family law) statutes. There is no legal regulation for the chosen representation . Are to be delimited

  • Agent business : The business carried out by the agent (e.g. a sales contract) is subject to the contract statute (unless UN sales law takes precedence).
  • Underlying legal transaction: The transaction on which the representative's activity is based (e.g. a service or work contract) is also subject to the contractual statute.
  • Authorization: After a minor opinion, the statute of the agency business should be used. However, the prevailing opinion rejects this and forms an independent power of attorney. Which feature this should be linked to is again controversial:
    • Habitual residence of the principal: A minor opinion sees the interests of the principal as decisive and wants to focus on his habitual residence.
    • Country of residence: The line of cases is linked to the right of the State in which the power of attorney to take effect by the will of the person who gave it to ( BGHZ 64, 183).
    • Place of use: The prevailing doctrine considers the law of the state in which the power of attorney is actually exercised to be suitable .

In the case of professional representatives, it is usually linked to the business establishment of the representative, alternatively to the seat of the principal. In general, an exception to these links is assumed for transactions over land and the lex rei sitae is applied.

Legal persons

The International Corporate Law lacks a legal rule determining the Staff Regulations of companies. The prevailing literature and supreme court case law always assumes the actual seat of the main administration (seat theory) in the name of the transport interests companies. This contrasts with the liberal foundation theory (according to Jan Kropholler ). This wants to judge companies according to the law according to which they were founded. In the context of European law, the foundation theory has prevailed: As a result of the Centros decision , the ECJ recognized in the Überseering decision on submission of the BGH that it contravenes the freedom of establishment if a company cannot relocate its actual seat to Germany without having its legal personality to lose the founding right ( EuGHE 2002 I, 9919). On the other hand, the relocation of the registered office of a company established under the law of a member state to another member state without changing the law applicable to it is a matter for the member state and does not affect the freedom of establishment ( Cartesio decision ): If the law of the founding state requires the dissolution of the company, its Moving the seat to another Member State is a matter of national law.

Family law (Art. 13–24 EGBGB)

Marriage law

According to Art. 13 EGBGB, the material requirements of marriage are subject to the law of the country of each fiancé. To the marriage conditions include, for example, the marriageable age and the lack of marriage obstacles . One distinguishes between

  • unilateral marriage requirements and
  • bilateral marriage requirements.

Unilateral marriage requirements only have to be met according to the law of the respective fiancé, bilateral marriage requirements at the time of marriage according to the law of both fiancés.

Example: A single German wants to marry a married Jordanian.
According to the home law of the married Jordanian, marriage is possible despite an existing marriage. However, the prohibition of double marriage according to § 1306 BGB is interpreted as a bilateral obstacle to marriage ; consequently no marriage may exist for either future spouse.

According to Section 1309 of the German Civil Code (BGB), there is a requirement for a certificate of marital status . This also applies to a foreign marriage statute. According to Section 1309 (2) of the German Civil Code (BGB) an exemption can be granted.

In exceptional cases, according to Art. 13 Para. 2 EGBGB, German law may apply to the marriage requirements. This version of Art. 13 goes back to a decision of the Federal Constitutional Court of 1971 ( BVerfGE 31, p. 58); According to the law of the time, marriage was not possible if, as for example Spain, the home law did not recognize a German divorce decree and thus the marriage hindrance of the double marriage existed.

As far as the form of marriage is concerned, Article 13 (3) EGBGB states that marriage in Germany can only be concluded in accordance with the formal requirements of Sections 1310 to 1312 BGB. For marriage abroad, the general rules of Art. 11 EGBGB apply. This also applies to the so-called glove marriage , i. H. marriage by proxy.

The right of general marriage effects is determined in Art. 14 EGBGB. Excluded from its regulatory area are regulatory areas that have been regulated by their own:

The applicable law is determined in Art. 14 Para. 1 EGBGB according to objective, graded, subsidiary links (so-called Kegel ladder) . Art. 14 para. 2 EGBGB also allows the choice of law under certain circumstances.

The matrimonial effects of marriage are subject to the marriage statute of Art. 14 EGBGB. Art. 15 para. 2 EGBGB permits an independent, restricted choice of law. The third-party protection norms of German law (negative publicity of the property law register according to § 1412 BGB) apply according to Art. 16 EGBGB also to foreign property regimes, as far as the spouse has his habitual residence in Germany or operates a trade.

According to Art. 17 EGBGB, the divorce was subject to the marriage statute of Art. 14 EGBGB until June 20, 2012. The nationality of the spouses was also decisive here. This has changed with the entry into force of the Rome III Regulation (Regulation No. 1259/2010 / EU) on June 21, 2012 - according to Art. 8 of this regulation, the focus is now primarily on the (habitual) place of residence of the spouses. The choice of law remains possible (cf. Art. 5 of the regulation). However, German material law is still to be applied if the referred law does not provide for a divorce or the rights of the spouses are unevenly distributed (cf. Art. 13 of the Rome III Regulation).

The EGBGB does not contain any collision rules for the engagement . The provisions on marriage (Art. 13 Para. 1 and 2 EGBGB and Art. 11 Para. 1 EGBGB) apply accordingly to the establishment. According to prevailing teaching, claims from breach of engagement are dealt with in accordance with Art. 14 EGBGB.

The illegitimate cohabitation has also not received any special regulation. Art. 17b EGBGB only applies to registered homosexual partnerships. Its analogous application to registered heterosexual partnerships is being considered in part. According to hM, the family law conflict of laws apply analogously to the illegitimate cohabitation. If it is only a casual relationship, a simple contractual qualification should be considered.

Maintenance law

By adopting Art. 4–10 of the Hague Convention on the Law Applicable to Maintenance Obligations of October 2, 1973 ( Federal Law Gazette 1986 II p. 825, 826 ), Art. 18 EGBGB determines the law applicable to maintenance claims through a connecting cascade. The many subsidiary factors serve to favor the dependent (favor alimenti).

Childhood law

Procedural law plays an important role in child-related matters : most international conventions state that the lex fori is applicable. With the decision on jurisdiction , the decision on the applicable law has usually been made. In practice, this leads to problems when someone who is not alone in custody abducts the child to a country that has custody arrangements that are favorable to him (problem of legal kidnapping ).

→ Hague Convention for the Protection of Minors
→ Hague Child Protection Convention
→ Regulation (EC) No. 2201/2003 (EuEheVO)
→ Hague Convention on the Civil Aspects of International Child Abduction
→ European Custody Convention

The parentage can be determined according to Art. 19 EGBGB according to three legal systems:

  • the law of the state in which the child is habitually resident
  • the law of the parent concerned
  • the marriage statute ( Art. 14 para. 1 EGBGB), if the mother is married. The existence of a marriage is to be treated as a preliminary question .

The relevant point in time of the determination is disputed; according to the prevailing opinion , the time of birth should be taken into account. The renvoi does not take place: The aim of the referrals is to provide the child with the greatest possible number of legal systems. If the renvoi were to reduce this number, this would be contrary to the meaning of the referral.

The effects of the parent-child relationship include parental custody . According to Art. 21 EGBGB, they are subject to the law of the state in which the child is habitually resident. If the child changes their habitual residence, this right changes. According to the prevailing opinion, referral back and referral should be observed.

For adoption , the Hague Convention on the Protection of Children and Cooperation in the Field of International Adoption according to Art. 3 EGBGB has priority. In the autonomous law applies: If a Single person as a child , so this is subject to type the 22nd EGBGB its national law at the time of adoption; for spouses, the marriage statute of Art. 14 EGBGB applies. Regardless of the wording of the law ("child"), these rules also apply to adult adoption. The scope of application includes the admissibility, requirements and effects of the adoption. Is it the recognition of a foreign decree adoption , d. H. the adoption by decision of an authority, the primacy of procedural law is to be observed: The effectiveness of the adoption is therefore not judged by the material requirements of the adoption statute; Instead, it must be checked whether the decision of the foreign authority is to be recognized according to Section 109 FamFG .

If the inheritance right of an adopted child is in question, the inheritance statute according to Art. 25 must first be determined. If, after this, a family relationship is important, the preliminary question to be checked is whether the adoption is actually effective or recognizable. The inheritance consequences of adoption have not yet been decided when the adoption becomes effective. Therefore, it now depends on whether the adoption creates sufficient family relationships to bring about an heir. Whether this is subject to the inheritance statute or the adoption statute has long been a contentious question of qualification . By Art. 22 para. 2 BGB has now decided that the effects of the adoption are subject to the relationships the adoption statute. If, for example, according to the adoption statute, there is no relationship to the relatives of the adoptive person (so-called weak adoption), no right of inheritance can be established.

Example: The childless German E dies without leaving a will in Austria. K was adopted by E's (deceased) Austrian brother.
Inheritance statute is German law ( Art. 25 Para. 1 EGBGB). According to § 1925, the descendants inherit . Therefore, as a preliminary question, the effectiveness of the adoption according to Art. 22 Para. 1 Sentence 2 EGBGB must be clarified. If this is effective, the Austrian Adoptionsstaut ( Art. 22 Para. 2 EGBGB) decides whether the adoption not only establishes a relationship with the adoptive person but also with his / her relatives.

Inheritance law (Art. 25–26 EGBGB)

Since August 17, 2015, the law applicable to legal succession in Germany has been based directly on the EU Inheritance Regulation (ErbVO) and the Law on International Inheritance Law and the Amendment of Regulations on Certificates of Inheritance and the Amendment of Other Regulations of June 29th 2015.

Contractual obligations (Rome I-VO)

Within the scope of its scope of application, sales and work delivery contracts, the UN sales law has priority as international uniform law according to Art. 3 No. 2 EGBGB. Regulation (EC) No. 593/2008 (Rome I) has been in force for all other contractual obligations since December 17, 2009 . Articles 27–37 EGBGB were repealed. Only Art. 29a EGBGB was retained and was moved to Art. 46b EGBGB. The applicable law can in principle be freely chosen according to Art. 3 Rome I Regulation. The selected contractual statute is overlaid in individual areas in accordance with Art. 46b EGBGB. To do this, one of the consumer protection directives mentioned in Paragraph 3 (protection from general terms and conditions , part-time housing law , distance selling contract, etc.) must first be recorded. The personal scope of application of the standard is opened when one party is a consumer ; it is not necessary that the contractual partner of the consumer is a trader. Spatially, there must be a close connection with a member state. If the requirements are met, regardless of the choice of law, the contract will be reviewed in accordance with the consumer protection standards of the respective EU member state (in Germany e.g. § § 305 ff. BGB).

Statutory obligations (Rome II-VO, Art. 38–42 EGBGB)

Right to enrichment

Application priority has to Art. 3 lit. no. 1 a) EGBGB EU law

According to Art. 38 Para. 1 EGBGB, claims from the right to enrichment are subject to the law applicable to the underlying legal relationship for the performance conditions . For debt contracts, this already follows from the lex specialis of Art. 32 Para. 1 No. 5 EGBGB. According to Art. 38 (2) EGBGB, the condition of interference is subject to the law of the state where the interference took place. This promotes consistency with the handling of tortious claims. The place of intervention is the place where the violation of the legal position of the person concerned occurred. According to the prevailing opinion (as in tort law), the ubiquity principle applies. In all other constellations of enrichment, according to Art. 38 Paragraph 3 EGBGB, the place where the enrichment occurred is linked.

According to Art. 41 Para. 2 EGBGB, a condition of intervention can be linked to the contractual statute or the common place of residence of the poor and the poor in individual cases. Furthermore, according to Art. 42 EGBGB, the choice of law is possible; beyond the wording also before the occurrence of the event.

management without order

Application priority has to Art. 3 lit. no. 1 a) EGBGB EU law

According to Art. 39 EGBGB, management without an order is linked to the law of the state where the business was carried out (place of execution). If, in exceptional cases, the place of action and the place of success fall apart, the prevailing opinion is that the place of success law applies. If the business was carried out in different places, the prevailing opinion is that the law of the state where the business management began is applied, as this law is tamper-proof. A counter-view sacrifices this legal safeguards to a case-by-case focus examination.

However, exceptions apply to important practical applications of the GoA in an international legal context: Firstly, assistance in distress at sea: It is problematic to connect it to assistance on the high seas ; the scope of the 1989 International Convention on Salvage is limited. A clear opinion in favor of the law of the rescuing or rescued ship has not yet emerged in the literature. On the other hand, the repayment of third-party liabilities, contrary to Art. 39 Paragraph 2 EGBGB, is ancillary to the law applicable to the liability.

In order to loosen up these links, according to Art. 41 Para. 2 EGBGB, there is the possibility to link to the contractual statute or the common habitual residence as an accessory.

Unauthorized act

Application priority has to Art. 3 lit. no. 1 a) EGBGB EU law

The concept of unlawful acts is broader in IPR than in substantive law: it covers all non-contractual liability for damages including strict liability , sacrifice and - controversial - culpa in contrahendo . The US punitive damages and the French astreinte are, however, not subject to tort law, insofar as they pursue criminal or preventive purposes .

According to the traditional view, claims from tort ( Art. 40 EGBGB) are linked to the law of the place of action, the lex loci delicti . This rule can easily be applied to so-called place offenses in which action and success occur in the same place. In the case of distance crimes - the place of action and the place of success are separated from each other - the principle of ubiquity applies : In German law, this is implemented through an option for the law of the place of success according to Art. 40, Paragraph 1, Clause 3 EGBGB. However, this right of determination can only be exercised until the end of the first early date ( Section 275 ZPO) or the written preliminary procedure ( Section 276 ZPO).

The place of action is the place at which the "will-dependent activity which occurs as a threat to a legally protected interest in the outside world". Preparatory actions are not significant. The prevailing opinion determines the place of success as the place where the good protected by the crime norm has actually been violated. The consequences of injuries occurring later are irrelevant. It is controversial as to which location is to be used in the event of personality violations: According to one opinion, the most favorable place of success should apply, according to another the focus on the violation of personal rights, according to another according to the respective environmental law concerned (mosaic view). In the case of offenses on board ships or airplanes, the law of the home port, according to another opinion, the law of the flag is decisive.

Example: On the homepage of a German newspaper based in Berlin, defamatory remarks are made in English and German about a well-known sports star who lives in the USA. The text was written by a correspondent for the newspaper in Canada.
The Rome II Regulation is to Art. 1 para. 2 lit. g Rome II-VO not applicable, so the EGBGB applies. In the case of offenses on the Internet, creating the page is a mere - irrelevant - preparatory act; Canadian law is therefore ruled out. The place of action is the place where the page was fed; this is Berlin as the publisher's “behavior center”, which means that German law is applicable. According to the prevailing opinion, the server location is particularly irrelevant , as it is too susceptible to manipulation. The right to success is disputed: According to one opinion, he would be entitled to the most favorable right; according to the mosaic consideration, in the case of a famous sports star, damages could be claimed practically proportionally according to all rights in the world. The prevailing opinion is therefore based on the habitual residence, since there the “social identity” of the person concerned is actually damaged, in this case US law.

According to Art. 40 (2) EGBGB, however, this connection is loosened if the injured party and the injured party have a common habitual residence . As an exception to the basic connection of Art. 40 Para. 1 and the loosening rule in Art. 40 Para. 2 EGBGB, Art. 41 EGBGB contains an escape clause: According to Para. 2 No. 1, especially in the case of an existing contractual or family connection, there is an accessory clause and so the consideration of a coherent situation can be guaranteed under the same law. Furthermore, the link between state liability and the law of the official state is implemented via the escape clause of Art. 41 . Finally, Art. 42 EGBGB allows the subsequent choice of law .

Art. 40 para. 3 specifies the public policy clause of Art. 6 . This particularly applies to punitive damages under US law. The importance of the renvois is controversial. Despite distinctions in details, the prevailing opinion in international tort law is usually based on a reference to the relevant standard.

Property law (Art. 43-46 EGBGB)

Basic connection

The principle of the lex rei sitae applies to rights to property : Property law issues are to be judged according to the law of the state in which the property is located. This applies to movable and immovable things. In this way, traffic interests are best served and legal traffic does not have to reckon with burdens on the matter that are unknown to domestic law . In the case of real estate, this often means that the court jurisdiction and applicable law are in sync. If the current location of the thing is unknown, the last known location decides. According to the prevailing opinion, a choice of law is excluded. The escape clause of Art. 46 EGBGB permits the application of another law as an exception if there is a much closer connection to this. This is usually discussed when there are no connections to third parties at the location.

Scope of the property law statute

The thing is defined as in substantive law according to § 90 BGB. In the case of securities , only the right to paper is subject to the property law statute ( lex cartae sitae ). The securitized right is to be assessed according to the securities law statute. The property law determined determines the permissible types and content of rights in rem.

Example: German law recognizes security of property as a security of property without possessions. Austrian law, on the other hand, only allows the bargaining chip . If Austrian law is invoked, security property cannot be established.

With regard to the qualification of foreign legal institutions (for example the Anglo-American trust ), the question must be asked whether they only work inter partes (then under the law of obligations) or erga omnes (then under property law). The property law statute determines the emergence, continuation and loss of real rights. When connecting, the German abstraction principle must always be observed: Even in international private law, obligations under the law of obligations and disposition under property law are tied up separately. Acquisition in good faith is also made dependent on the lex rei sitae .

Change of statutes

Movable items can easily lead to a change in the statutes. Here traffic interests and the protection of vested rights are to be reconciled. In the case of open facts , a decision must be made in full according to the new statute. According to Art. 43 Para. 3 EGBGB, factual processes abroad are to be treated like domestic ones .

Completed facts are those in which the change in the law was carried out in full under the old statute or where it finally failed. To protect vested rights, such facts are subject to the old statute. This is problematic, however, if a right was established in a thing abroad that is unknown under domestic law. According to Art. 43 (2) EGBGB, no rights can be exercised on a thing that is contrary to the legal system of this state.

Example: In France, a non-possessory registered lien is established. The thing will be brought to Germany. German law does not recognize a non-possessory register lien.

According to Art. 43 (2) EGBGB, such a right remains in place in Germany. The only question is what effects it will have domestically. According to the prevailing opinion, it is recognized that the non-possessory registered lien does not contradict German property law, since this knows institutions that are functionally equivalent with retention of title and assignment by way of security . According to the prevailing opinion, it is therefore treated as a simple lien with the consequences of Section 805 ZPO.

Since the right continues to exist and is only limited in its exercise by the new right, according to the prevailing opinion it is also revived as soon as it is brought to a country that knows this legal institution (so-called resuscitation theory ). Foreign law should not have any purifying effect. An exception applies in the event that the item has been sold in the meantime.

special cases

If the seller has to send the goods abroad, one speaks of international mail order sales . According to the prevailing opinion, the lex rei sitae also applies here. According to another opinion, however, the escape clause of Art. 46 EGBGB should come into play here in order to guarantee a uniform connection of the real legal transaction, regardless of the often accidental question of whether the process is open or closed .

If the goods are available during transport, one speaks of the problem of res in transitu. The location here is often coincidental or the thing is located in a sovereign area. Therefore, the law of the state of the location does not usually apply here, as its interests are usually not affected. Instead, the law of the state of the future destination will be applied.

For aircraft, watercraft and rail vehicles, according to Art. 45 EGBGB, the place of registration or , alternatively, the usual location of the means of transport is linked. Since motor vehicles are not mentioned separately, according to the prevailing opinion, the basic rule of Art. 43 Para. 1 EGBGB applies to them . For motor vehicles that are used permanently in international traffic, a reduction in opinion is aimed at the place of registration on the basis of Art. 46 EGBGB. The prevailing opinion follows this, however, only with trucks in cross-border freight traffic.

literature

Collections of laws

Collections of judgments

history

  • Max Gutzwiller: History of private international law. From the beginnings to the major private law codifications . Helbing & Lichtenhahn, Basel 1977, ISBN 3-7190-0688-3 .

Historical textbooks

  • Ernst Frankenstein : International private law (border law) . 4 volumes, 1925–1935. Berlin (reprint 1974).
  • Leo Raape : German international private law . 2 volumes, 1938–1939. Vahlen, Berlin.
  • Ernst Rabel : The conflict of laws. A comparative study . 4 volumes, 1958–1964. University of Michigan Law School, Ann Arbor.
  • Martin Wolff : International Private Law . Springer, Berlin 1933.

Textbooks

Case books

Comments

  • Hans Jürgen Sonnenberger , Rolf Birk (ed.): Munich commentary on the civil code . 5th edition. tape 10 : International Private Law, Rome I Regulation, Rome II Regulation, Introductory Act to the Civil Code (Articles 1–24). CH Beck, Munich 2010, ISBN 978-3-406-54850-5 .
  • Julius von Staudinger (greeting): J. von Staudinger's commentary on the civil code with introductory law and subsidiary laws . 13th edition. several volumes, 2003–2009. Sellier / de Gruyter, Berlin.
  • Julius von Staudinger (greeting); Jan Kropholler (Red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 13th edition. Articles 7, 9–12, 47 EGBGB (international law of natural persons and legal transactions). Sellier / de Gruyter, Berlin 2007, ISBN 978-3-8059-1048-4 .
  • Julius von Staudinger (greeting); Dieter Henrich (red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 13th edition. Art 13–17b EGBGB (international marriage law). Sellier / de Gruyter, Berlin 2003, ISBN 3-8059-0992-6 .
  • Julius von Staudinger (greeting); Dieter Henrich (red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 13th edition. Art 18 EGBGB; Annex I, II, III to Article 18; Preliminary to Article 19 (International Childhood Law 1). Sellier / de Gruyter, Berlin 2003, ISBN 3-8059-0986-1 .
  • Julius von Staudinger (greeting); Dieter Henrich (red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 13th edition. Art 18 EGBGB; Annex I, II, III to Article 18; Preliminary to Article 19 (International Childhood Law 2). Sellier / de Gruyter, Berlin 2009, ISBN 978-3-8059-1060-6 .
  • Julius von Staudinger (greeting); Dieter Henrich (red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 13th edition. Art 25, 26 EGBGB (international inheritance law). Sellier / de Gruyter, Berlin 2007, ISBN 978-3-8059-1046-0 .
  • Julius von Staudinger (greeting): J. von Staudinger's commentary on the civil code with introductory law and subsidiary laws . 14th edition. several volumes, 2009–2010. Sellier / de Gruyter, Berlin, ISBN 978-3-8059-1100-9 .
  • Julius von Staudinger (greeting); Dieter Henrich (Red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 14th edition. Introduction to the IPR; Art 3–6 EGBGB (international private law - general part). Sellier / de Gruyter, Berlin 2010, ISBN 978-3-8059-1100-9 .
  • Julius von Staudinger (greeting): J. von Staudinger's commentary on the civil code with introductory law and subsidiary laws . 14th edition. International corporate and corporate law. Sellier / de Gruyter, Berlin 2010, ISBN 978-3-8059-1047-7 .
  • Julius von Staudinger (greeting); Dieter Henrich (red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 14th edition. Articles 19–24 EGBGB; ErwSÜ (International Childhood Law 3 - Guardianship, Legal Supervision, Guardianship). Sellier / de Gruyter, Berlin 2008, ISBN 978-3-8059-1074-3 .
  • Julius von Staudinger (greeting); Ulrich Magnus (Red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 14th edition. Private international law: Rome I Regulation (International Contract Law). Sellier / de Gruyter, Berlin 2010, ISBN 978-3-8059-1070-5 .
  • Julius von Staudinger (greeting); Dieter Henrich (red.): J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 14th edition. International private law: Articles 43–46 EGBGB (international property law). Sellier / de Gruyter, Berlin 2009, ISBN 978-3-8059-1040-8 .
  • Julius von Staudinger (greeting); Bernd von Hoffmann , Karsten Thorn : J. von Staudinger's commentary on the civil code with introductory law and ancillary laws . 15th edition. International private law: Articles 38–42 EGBGB, Rome II-VO (international law of non-contractual obligations). Sellier / de Gruyter, Berlin 2010, ISBN 978-3-8059-1071-2 .

Magazines

Essays

Web links

Wikisource: International private law , contribution to the status in the German Reich 1914  - sources and full texts

Individual evidence

  1. ↑ Jan Kropholler : Internationales Privatrecht: Including the basic terms of the international civil procedure law . 6th edition. Mohr Siebeck, Tübingen 2006, § 1 International Private Law (subject).
  2. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 4 Rn. 2-4.
  3. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 4 Rn. 6-11.
  4. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 111-118a.
  5. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 2-18.
  6. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 19-29.
  7. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 59-60.
  8. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 73.
  9. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 75.
  10. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 85-94.
  11. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 95.
  12. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 97-110.
  13. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 5-7.
  14. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 8-10.
  15. ↑ Martin Wolff : International Private Law . Springer, Berlin 1933, p. 54 ff .
  16. ↑ a b Murad Ferid : International Private Law - A Guide for Practice and Training . 2nd Edition. Gieseking, Bielefeld 1982, p. 90 ( JA special issue).
  17. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 12-17a.
  18. ↑ Ernst Rabel : The problem of qualification . In: RabelsZ . tape 5 , 1931, pp. 214-288 .
  19. ^ Gerhard Kegel , Klaus Schurig : International Private Law . CH Beck, Munich 2004, § 7 III 3b.
  20. ^ Jan Kropholler : International Private Law . 6th edition. Mohr Siebeck, Tübingen 2006, § 34 III.
  21. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 35-37.
  22. ^ A b Gerhard Kegel, Klaus Schurig: International Private Law. A study book . CH Beck, Munich 2004, § 9. Preliminary question.
  23. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 42-72.
  24. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 83-86.
  25. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 73-93.
  26. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 117-121.
  27. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 4 Rn. 19th
  28. ↑ Klaus Schurig : Mandatory law, "encroaching norms" and new IPR . In: RabelsZ . tape 54 , 1990, pp. 217 (238) .
  29. ↑ Dennis Solomon : The scope of Article 3 Paragraph 3 EGBGB - illustrated using the example of international inheritance law . In: IPRax . 1997, p. 81-87 .
  30. ↑ BGH NJW 2003, 2685
  31. ↑ BGH NJW 1976, 1581
  32. ↑ BGH WM 2001, 502; BGH NJW 2003, 2685
  33. ↑ BGH of November 12, 2009, NJW 2010, 1070
  34. ↑ Hüßtege / Ganz, Internationales Privatrecht , 5th edition 2012 p. 21 with references to both views
  35. ↑ BGH NJW 1982, 1216
  36. ↑ so Kegel / Schurig, Internationales Privatrecht , 9th edition. 2004
  37. ^ Leo Raape : International Private Law . 4th edition. Vahlen, Frankfurt am Main 1954, p. 87 .
  38. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 142-148.
  39. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 6 Rn. 149-151.
  40. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 152-153.
  41. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 5 Rn. 154.
  42. ↑ OLG Zweibrücken, judgment of November 16, 2001 - 2 UF 80/00
  43. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 7 Rn. 1-5a.
  44. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 7 Rn. 6-11a.
  45. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 7 Rn. 12-14.
  46. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 7 Rn. 37-46.
  47. ↑ Ulrich Spellenberg : before Art. 11 EGBGB RN. 229 ff. In: Munich Commentary on the Civil Code . 5th edition. tape 10 . CH Beck, Munich 2009.
  48. ^ Gerhard Kegel, Klaus Schurig: International Private Law. A study book . CH Beck, Munich 2004, § 17 V 2a.
  49. ↑ a b Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 7 Rn. 50-51.
  50. ^ Jan Kropholler : International Private Law . 9th edition. Mohr Siebeck, Tübingen 2007, § 55 I 4a.
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  53. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 8 Rn. 4th
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  55. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 8 Rn. 20-30.
  56. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 8 Rn. 33-41.
  57. ↑ Tom Stiebert in juraexamen.info - IPR: Rome III regulation entered into force
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  66. ↑ BGBl. I, 1042
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  68. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 11 Rn. 7th
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  85. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 12 Rn. 41-42.
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