Lex loci delicti
Lex loci delicti ( Latin law of the crime scene ) is a term from international private law . According to this, in the event of an illegal act (offense) being committed, the law applicable at the crime scene applies to claims arising from this illegal act, the so-called crime scene principle .
General clause
For Germany the principle is laid down in Art. 40 EGBGB and applies as a general clause for all tort law including the law of strict liability . The crime scene principle of Art. 40 I EGBGB adheres to the distinction between the scene of action and the scene of success (so-called ubiquity principle ). According to this, the injured party (synonym: the injured party) can decide for himself in the case of cross-border offenses whether the law of the place of action or the place of success should apply to his claims based on the offense analogous to § 32 ZPO before a German court, Art. 40 I S. 2 EGBGB .
This unilateral right of determination (so-called conflict of law replacement right ) must be exercised by the injured party in accordance with Art. 40 I Clause 3 EGBGB by the end of the early first appointment ( § 275 ZPO) or the written preliminary procedure ( § 276 ZPO). This time limit, which was drawn at an early stage, serves both the principle of process economy and procedural equality of arms between the parties.
crime scene
The place of action within the meaning of Art. 40 I Clause 1 EGBGB is the place where the cause for the breach of legal interest was set, i.e. usually the infringing act of the perpetrator (synonym: injuring party). Mere (unpunished) preparatory acts still provide no cause and therefore offense moderate action is. If the violation of rights on the interaction of several cumulative attributable causes (so-called. Cumulative causation ) that were placed in different States may alternatively be linked to multiple jurisdictions of states (Validity of several alternatively applicable crime statutes ). In this case, too, the injured party has a right to determine between the statutes analogous to Art. 40 I sentence 2 EGBGB.
The place of success within the meaning of Art. 40 I Clause 2 EGBGB is the occurrence of the violation of the legal interest, whereby this means the occurrence of the completion of the offense. Further (indirect) consequences of damage at other locations are not taken into account: The injured person cannot create the most favorable criminal statute for himself by referral to a foreign hospital in another country that has no connection to the accident, i.e. H. Find the best legal system for him. In the case of several places of success of the criminal act in different states at the same time, the injured party in turn has a right of determination analogous to Art. 40 I sentence 2 EGBGB.
The special place of jurisdiction for the unlawful act is basically judged according to the mosaic theory .
Exceptions
Exceptions to the crime scene principle of Art. 40 I EGBGB contain the following regulations:
- Art. 40 II EGBGB provides for a special connection between the offense statute and the common habitual residence of the injured party and the injured party in the same state and, as an exception to the crime scene principle, takes precedence over this.
- Art. 41 EGBGB contains in Para. 1 the escape clause of the much closer connection of the facts to another state, whereby in Art. 41 II No. 1 and No. 2 EGBGB two standard examples are mentioned. This exception supersedes both the connection to the crime scene principle of Art. 40 I EGBGB and the connection to the common habitual residence according to Art. 40 II EGBGB, provided that there is a much closer connection to a place in another state. There is a much closer connection between the case of damage and the law of another state if, after taking the circumstances of the individual case as a whole, the overall assessment shows that the law of this state is more relevant to the case of damage. This referral is not an overall referral because, from the point of view of German IPR, a decision in favor of the strictest legal system has already been made within the framework of the overall assessment and a referral back or further would contradict the sense of the general clause striving for individual justice (cf. Art . 4 I EGBGB). The rule example of Art. 41 II No. 1 EGBGB deserves special mention: If a special legal relationship (under the law of obligations) is characteristic of the offense, the offense statute is also linked to the (contractual) statute applicable to this special legal relationship , the so-called contract - accessory connection of the Offense statute . The BGH did not regard the engagement as a special legal relationship within the meaning of Art. 41 II No. 1 EGBGB and a connection of the offense to the engagement statute (e.g. in the case of claims for repayment due to fraudulent breach of engagement according to § 823 II BGB in conjunction with § 263 StGB) denied because, due to its legal nature, it can be regarded as an insufficiently stable legal relationship characterized by external characteristics. The reason for this is the uncertainty as to when and how long the parties are really engaged and the fact that in some countries this legal institution does not exist at all.
- Art. 42 EGBGB provides that the parties by common choice of law to determine the applicable law by entering the origin of deliksrechtlichen contractual obligation with retroactive effect itself. This corresponds to the private autonomy of the parties, which is why the choice of law takes precedence over all other references, including the exceptions of Art. 40 II EGBGB and Art. 41 EGBGB. The determination by choice of law, in contrast to the determination right of Art. 40 I 2 EGBGB of the injured party, is binding and can no longer be unilaterally revoked. For this reason, the delimitation of whether the definition of the offense status was made by the right to determine the injured party (so-called conflict of law substitution law ) or (possibly implied ) by choice of law is of immense importance. It must be determined by way of interpretation whether the exercise of the right of determination also includes an offer to conclude a choice of law agreement within the meaning of Art. 42 EGBGB. Especially when exercising the right of determination after the time of preclusion of Art. 40 I Clause 3 EGBGB, an interpretation in favor of a choice of law agreement is possible in order to enforce the will of the injured party - provided the injuring party at least implicitly agrees. The choice of law also excludes referrals and referrals back by way of total referral, as this would contradict the purpose of leaving the applicable law to the choice of the parties. However, this already follows explicitly from the regulation of Art. 4 II EGBGB, which expressly states that all reference standards with a link to the choice of law are material standard references .
