The legal term of the judiciary ( Latin iudicare , to speak law ; formerly also called jurisdiction ) describes the “ judicial power” in the state , based on the classic tripartite separation of powers into the legislature (parliament as the legislative power ), executive (government and administration as executive power) and judicial power .
In constitutional states , the judiciary is exercised by independent judges . The jurisprudence is bound by law and justice . The independence of the judiciary is partly anchored in positive law (for example, for Swiss military justice in Article 1 of the military criminal process).
The sense and purpose ofGG is to "guarantee a special autonomy and independence of the will formation in the system of separation of powers." Judicial power therefore does not already exist "if a state body with independent judges within the meaning of Art 92 ff. GG occupied ".
Functional case law exists if the legislature provides for a judicial procedure for sovereign dispute resolution and gives the decisions to be made there a legal effect that only independent courts could bring about. Essential features of the jurisprudence (case law ) are "the element of the decision, the final binding, legally binding statement and the statement of what is lawful in the specific case." "Characteristic of judicial activity is therefore typically the final binding clarification of the legal situation in a dispute The framework of specially regulated procedures. "
The judicial power in Germany
The first half-sentence ofGG means a court reservation: "The legislature, including the state legislature, may therefore not assign a matter that is jurisdiction within the meaning of first half-sentence of the Basic Law to other bodies than courts."
- André Brodocz : Die Macht der Judikative , VS Verlag , Wiesbaden 2009, ISBN 978-3-531-16758-9 . (Constitution and politics)
- Axel Hopfauf, preparation before Art. 92 and Art. 92 GG, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, Cologne 2011, ISBN 978-3-452-27076-4 .
- BVerfG, judgment of February 8, 2001; Az. 2 BvF 1/00; BVerfGE 103, 111 - Hesse electoral examination, Rn 95 ff.