Justice

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Justice or Justitium , legal standstill, the standstill of the administration of justice is called a judicial inaction.

term

A justitium can be based on very different reasons:

  • General emergency situation, e.g. B. War or force majeure
  • Lack of judges
  • Absence of provisions on local jurisdiction at all
  • Non-distribution of business in business distribution
  • Actual inaction due to failure to schedule an appointment
  • Suspending or suspending proceedings
  • Denial of justice ( perversion of justice )

The term goes back to the Roman legal institute of the iustitium . The word itself is a compound from the Latin ius (right) and stitium (standstill). The spelling Justi z ium because of justice since the spelling reform in 1999 is therefore criticized (argument: Solstitium remains).

In the Kingdom of Saxony , the term Justice was common for an administrative district until 1855, since the lower judicial and general administration, including church affairs, were not yet separated.

Historical change in meaning

While the legal systems valid in Germany and Austria only consider a standstill in the administration of justice as possible and attach certain legal consequences to it, in the Roman Empire of the republican time, in the event of external or internal danger, there was the possibility of a temporary, formalized state of emergency , which was to cease the Carried out activities by constitutional, administrative and judicial bodies. The Roman Senate also used the iustitium as a means of arguing about power politics. The attempt to prevent an unpleasant legislative proposal by the tribune Publius Sulpicius Rufus in this way was unsuccessful.

In the Roman Empire, iustitium edicere only meant the proclamation of state mourning when a member of the imperial family had died. From the Senatus consultum up to and including the day of the funeral, no court was allowed to be held, financial transactions to be conducted, weddings or engagements to be celebrated. Games should also not take place on this day and the temples should be closed. Paradoxically, the more members of the imperial family died, the more present the dynasty became in public life in the capital. The presence was so extensive that some honors, such as the iustitium on the recurring anniversary of death, increasingly turned out to be impracticable.

On the death of the very popular, as the successor of Emperor Tiberius certain Germanicus leads the people with no official arrangement, a iustitium cause, Roman the two months after the date of death by the Senate for Rome itself and all the cities or Latin law was passed.

Legislation

Germany

A standstill in the administration of justice at a civil court as a result of a war or another event interrupts the court proceedings for the duration of this situation ( Section 245 ZPO ). This means that all legal deadlines and scheduled negotiation or announcement dates can pass without any disadvantage for a party to the proceedings. Only when the administration of justice is resumed does the full period start again ( Section 249 ZPO). The fact that the administration of justice has come to a standstill, however, only has legal effect if a party to the proceedings refers to it in its procedural acts and the competent court or the higher-ranking court legally recognizes this.

The administration of justice does not only “stand still” when all courts close their gates, as was the case at the end of the war after the invasion of Allied troops up to the gradual reopening of the local and regional courts in May 1945. Rather, it refers to any situation in which the judiciary can no longer function properly, such as some local courts during the Elbe floods in 2002. On March 21, 1933, Jewish judges, prosecutors and defense lawyers were forcibly removed from the ongoing negotiations in Wroclaw . Such actions took place in numerous other courts. Many of the proceedings pending in these courts could not be continued for a long time, as the lawyers concerned were taken into protective custody and ultimately removed from their offices.

In addition, before the law of obligations modernization law (SMG) came into force , the German Civil Code ( BGB ) knew in the old section 203 (1) that the statute of limitations was suspended due to a standstill in the administration of justice. During the reform, this regulation - according to the motive report - was combined with the 2nd paragraph in Section 206 of the German Civil Code ( BGB ) for linguistic reasons , since the standstill of the administration of justice can be “easily understood as a subordinate case of force majeure”. According to this, the statute of limitations is suspended as long as the obligee (other entitled person) is prevented from prosecuting within the last six months of the statute of limitations due to force majeure.

Austria

A complete standstill in the administration of justice, for example in the event of force majeure or in times of war, both the beginning and the duration of the obstacle, the continuation of the capture or the statute of limitations is inhibited. The same applies if the person is absent due to civil or military service. ( § 1496 ABGB )

The Austrian Code of Civil Procedure uses the synonymous term “cessation of official activities of the court” ( § 161 ZPO ) instead of “standstill in the administration of justice” . According to this, the proceedings in all cases pending before a civil court are suspended for the duration of the state in which the court's activity ceased as a result of a war or other event. After the obstacle no longer exists, either party can initiate proceedings.

Another provision is aimed at preventing a party because of military service in times of war or other reasons from dealing with the court in which the case is pending. If at the same time there is concern that these circumstances could influence the conduct of the proceedings to the detriment of the absent party, the interruption of the proceedings until the obstacle is removed can be ordered on application or ex officio ( Section 162 ZPO accidental prevention of a party).

Switzerland

In Switzerland, in the area of debt enforcement and bankruptcy law, the Federal Council or, with its consent, the cantonal government can resolve a legal standstill for a specific area or for specific sections of the population in the event of an epidemic or a "national disaster" or in times of war . If the end of a period falls within the period of legal standstill, the period will be extended to the third day after its end. When calculating the period of three days, Saturdays and Sundays as well as state-recognized public holidays are not counted.

The Federal Council made use of this competence in spring 2020 due to the COVID-19 pandemic in Switzerland .

Judicature of the highest courts

Germany

Decision of the BVerfG

In the case law of the Federal Constitutional Court it is clarified that when former GDR judges were appointed to the judicial service of the new federal states ... the incumbent judges were temporarily authorized to exercise jurisdiction in order to avoid a standstill in the administration of justice.

Judgment of the BSG

"Force majeure" within the meaning of § 203 BGB (old version until December 31, 2001), the sub-case of which is the "standstill of the administration of justice", can only be accepted if the claimant demonstrates and, if necessary, proves that it was also the least culprit missing his side.

BAG judgment

Force majeure in this sense is an extraordinary event, the occurrence of which cannot be foreseen and cannot be averted with the usual means even with the greatest care; even the slightest fault excludes force majeure. According to this, objective payment obstacles caused by legislation or administration can lead to a deadline suspension. This was from the case law z. B. for an asset freeze under the Military Government Act No. 52 (cf. BGHZ 10, 310) and with regard to the closure of Berlin banks in April 1945 (cf. BGH BB 1955, 880).

Austria

Findings of the Supreme Court

The standstill of the administration of justice is to be understood as preventing the competent court from exercising its activity or the impossibility of dealing with the competent court. The effect of setting up a journal service cannot be equated with a complete standstill in the administration of justice.

A standstill in the administration of justice as a result of the war can only be taken into account within the framework of the Time Limits Act.

Knowledge of the VwGH

There can be no question of a complete standstill of the administration of justice within the meaning of Section 1496 of the Austrian Civil Code if the tax authorities and their legal predecessor had - objectively seen - been free to bring the property claim, and they would have had it in their hands, the acquisition of the landlord or to interrupt his legal predecessor.

See also

literature

Web links

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

German law

Austrian law

Online publications

Individual evidence

  1. ^ W. Kunkel, 225-228
  2. ↑ Tacitus (ann. 2.82)
  3. ↑ Andreas Hartmann, Germanicus and Lady Di: on the public processing of two deaths, p. 31
  4. ^ Legal injustice in court
  5. ↑ For example, the Elbe flood in Pirna ( memento of the original from September 30, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.nadir.org
  6. ↑ Torah and Antisemitism (9 Antisemitism in the 3rd Reich) ( Memento of the original from September 28, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.brwuppertal.de
  7. ↑ to § 206 BGB new version - justification of the draft
  8. ↑ Ordinance on the legal standstill in accordance with Article 62 of the Federal Act on Debt Collection and Bankruptcy of March 18, 2020
  9. ↑ BVerfG, decision of May 4, 1998 - 2 BvR 2555/96 (Lexetius.com/1998,669 (2002/4/15189))
  10. ↑ BSG, judgment of May 11, 2000 - B 13 RJ 85/98 R (Lexetius.com/2000,1244 (000/10/980))
  11. ↑ BAG, judgment of November 7, 2002 - 2 AZR 297/01 (Lexetius.com/2002,3302 (2003/6/201))
  12. ↑ Supreme Court recognition 04/02/1976 number business 8Ob13 / 76
  13. ↑ Federal Act of July 2, 1947 on the admissibility of judicial enforcement of statute-barred rights. ( Federal Law Gazette No. 193/1947)
  14. ↑ Supreme Court recognition 19/05/1954 number business 3Ob220 / 54
  15. ^ VwGH decision April 24, 1990 reference number 86/07/0241