Judiciary
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 .
definition
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 term judiciary is not identical with the terms jurisdiction , justice or administration of justice , which from a constitutional point of view are in part also assigned to the executive power.
According to the Federal Constitutional Court (BVerfG), judicial power within the meaning of Article 92 of the Basic Law (GG) is not to be understood in a formal but in a material sense.
The sense and purpose of Art. 92 GG 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
According to Art. 92 GG: “The judiciary is entrusted to the judges; it is exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law and by the courts of the federal states. "
The first half-sentence of Article 92 GG means a court reservation: "The legislature, including the state legislature, may therefore not assign a matter that is jurisdiction within the meaning of Article 92 first half-sentence of the Basic Law to other bodies than courts."
literature
- 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 .
