Guiding principle

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A guiding principle in jurisprudence is a summary of the main reasons for the decision by the court. Orientation clauses, on the other hand, often represent a short text on the court decision that is more comprehensive than the guiding principles, which are not always easy to understand, offers the user a classification of the decision and thus provides orientation knowledge that often cannot be presented by the guiding principles of a decision.

meaning

There is no general obligation to draft guidelines. If available, the guiding principle will be published together with the decision.

Unlike the tenor, a guiding principle does not become legally binding because it is not part of the decision, but was taken from the decision and selectively summarizes it in a condensed form. However, it is often of great practical importance as a quasi- guideline for the subordinate courts, which is particularly problematic if the guiding principle does not make it sufficiently clear that the legal statement contained in it should only apply to the decided case constellation. Therefore, the decision-making body usually tries to emphasize the specific validity or the general validity of the guiding principle. While non-legal circles gratefully take up the guiding principle in order to understand the essential decision-making bases of the judgment with its help, the guiding principle in the legal literature is often sufficient as a legal source to explain a certain factual matter. In this respect, the decision-making body is aware that the aim of the guiding principle is to serve as a citable source.

According to the case law of the Federal Court of Justice , a guiding principle is to be regarded as official if it can be assigned to the panel as a summary of its decision originating from it. In practice this means that i. d. As a rule, the judge's reporter edits the judgment, gives it a guiding principle and, after approval by the judging body, makes it available to a publication organ for commercial use in a guideline index for a fee. However, this does not necessarily mean that the guiding principle correctly reflects the content of the judgment. Principles not formulated by the court itself are marked as unofficial .

Historical development

Guiding principles as positive legal clauses existed for the first time for the Reichsgericht in its reference work, which was only intended for internal use (for civil matters from 1909, for criminal matters from 1924). Otherwise, the decisions in the RGZ and RGSt collections were only preceded by legal questions or topics similar to guiding principles . At the end of the 1930s , the criminal senates of the Reichsgericht (unlike the civil senates) began to publish positive guidelines.

If a case raises a legal question, the answer to which is not conclusively reproduced in the guiding principle, an open-ended formulation is still common today. However, this no longer has the form of a question, but falls back on a formulation with "to", for example on the requirements of the nullity of a franchise agreement due to immoral gagging .

copyright

Section 5 (1) UrhG excludes officially drafted guidelines for decisions as well as the decisions themselves from copyright protection . The decisive factor for the assessment of a guiding principle as officially drafted is whether it is to be assigned to the panel as a summary of its decision originating from it. This is to be assumed as a rule if the guiding principle was formulated and published by a member of the panel, regardless of whether it was officially obliged to do so. Orientation sentences drawn up by a judicial documentation center are also in the public domain. On the other hand, non-officially drafted principles of court decisions can be protected as their processing like independent works according to § 3 UrhG.

Individual evidence

  1. ↑ Moritz, in: Location juris - Festschrift for the 10th anniversary of juris GmbH Fall 1995, 1996, p. 213 ff., With numerous practical examples.
  2. ↑ VGH Baden-Württemberg, judgment of May 7, 2013 - 10 S 281/12 para. 45.
  3. ↑ BGH, judgment of 21 November 1991 - I ZR 190/89 paragraph. 41
  4. ↑ Adrian Schneider: Judgments as an additional income at the BGH Telemedicus, May 13, 2013.
  5. ↑ Otto Warneyer : The reference work at the Reichsgericht . In: Fifty years of Supreme Court (1929), pp 54 -57
  6. ↑ z. B. RGSt 71, 23 (1936): If several people work together, can an individual be punishable as an instigator without influencing the main culprit himself and even without having someone in mind who is to be instigated to commit the offense?
  7. ↑ z. B. RGZ 172, 1 (1943): On the conditions under which a property purchase contract concluded before the entry into force of the Land Movement Ordinance of 7 July 1942, the purchase price of which was objected to by the price control authority, can subsequently become binding.
  8. ↑ Werner Schubert in RGSt 78, 1 f. (2008)
  9. ↑ z. B. RGSt 73, 9 (1938): A "creep in" i. S. of § 250 Abs. 1 Nr. 4 StGB. also applies if the perpetrator uses ruse or deceit to gain open access to a building.
  10. ↑ cf. Regional court Bochum, judgment of April 28, 1999 - 2 O 7/99 LS 1
  11. ↑ VGH Baden-Württemberg, judgment of May 7, 2013 - 10 S 281/12
  12. ^ BGH, judgment of November 21, 1991 - I ZR 190/89