Ordinary jurisdiction (Germany)
Ordinary jurisdiction (also: judicial jurisdiction ) in Germany consists of all courts before which civil matters , i.e. civil legal disputes, family matters, matters of voluntary jurisdiction and criminal matters belong, insofar as the competence of administrative authorities or administrative courts is not justified for them or special courts have been appointed or approved on the basis of provisions of federal law.
conceptual history
The term "ordinary" jurisdiction - "ordinary" here in the sense of "normal", "ordinary" - dates back to the 17th century, when only civil and criminal courts had independent judges, while administrative jurisdiction was part of the administrative authorities ( see Verwaltungsrechtspflege ) and was not staffed with independent judges but with civil servants (extraordinary). The administrative legal route was therefore not identical to the route to the ordinary courts, because officials, not judges, decided.
This distinction no longer exists since Art. 92 , Art. 97 GG allocates all case law to judges who are personally and factually independent. The usual usage has been retained, although administrative courts today are no less "orderly" than ordinary jurisdiction.
The courts of ordinary jurisdiction are divided into contentious (general civil proceedings ) and non-contentious (“ voluntary jurisdiction ”) as well as criminal jurisdiction. Ordinary jurisdiction is also divided into special sub-branches (departments) for each branch, for example in civil law in courts for family , commercial , agricultural and shipping matters or in criminal law in courts for juvenile criminal matters .
In addition to ordinary jurisdiction, there are the special jurisdictions of social jurisdiction , labor jurisdiction , financial jurisdiction or administrative jurisdiction (cf. specialist jurisdiction ) and constitutional jurisdiction .
Structure of the ordinary courts
The courts are structured in order of the top
- The district court (in criminal proceedings the jury is called criminal judge and lay judge ; in civil proceedings this is always the single judge ).
- The regional court (in criminal proceedings this is the small or large criminal chamber (also jury court ), in civil proceedings the civil chamber or the chamber for commercial matters or the single judge ).
- The Higher Regional Court (in criminal proceedings the criminal senate , in civil proceedings the civil senate or the single judge ). The Higher Regional Court of Berlin is usually referred to as the Superior Court . There are several OLGs in North Rhine-Westphalia, Lower Saxony, Baden-Württemberg, Rhineland-Palatinate and Bavaria, and only one in each of the other states.
- In Bavaria , the Bavarian Supreme Regional Court has also been set up. It decides in some types of proceedings instead of the Higher Regional Court, sometimes also instead of the Federal Court of Justice.
- The Federal Court of Justice has senates for both criminal and civil proceedings.
The courts with the most judge positions in 2016 were the district courts of Berlin (348), Munich I (222) and Hamburg (198), the district courts of Munich (196) and Berlin- Tiergarten (180) and the Higher Regional Court of Hamm (180).
civil matters
District Court
Jurisdiction in civil matters: ( §§ 23 in conjunction with 71 GVG)
- with a value in dispute up to 5000 €
- with a value in dispute of more than 5000 € only if it is e.g. B. um
- housing rent disputes,
- disputes between travelers and hosts,
- game damage,
- Dunning matters (dunning procedure)
- foreclosure
- public notice procedure
acts.
In addition, the district courts are responsible as courts of first instance in family matters and matters of voluntary jurisdiction ( § 23a Para. 1 GVG).
district Court
In civil matters, the regional courts are generally responsible in the first instance, unless the local courts are expressly designated as having jurisdiction. In addition, the regional courts decide on appeals and complaints against decisions of the district courts in civil legal disputes ( § 71 Para. 1 GVG), but not in family matters.
Higher Regional Court
The higher regional courts are responsible for appeals and complaints against decisions of the regional courts in civil matters ( § 119 Para. 1 No. 2 GVG), as well as for complaints against decisions of the district courts in family matters and most matters of voluntary jurisdiction ( § 118 GVG). In a few cases, the higher regional courts are also responsible in the first instance in civil matters, such as in proceedings under the Investor Model Proceedings Act ( section 119 (1) no. 1 GVG) ( section 118 GVG).
Federal Court of Justice
In civil matters, the Federal Court of Justice decides on the appeals of revision, jump revision, appeal on points of law and jump right complaint ( § 133 GVG).
criminal cases
District Court
The jury bodies of the district court in criminal matters are called criminal judges and lay judges . The district courts only deal with cases at first instance.
The competence of the district court in criminal matters results from § 24 GVG:
- in the case of public prosecution (charge), if the legal consequence is a maximum of imprisonment of up to 4 years
- in penal order proceedings (maximum imprisonment: 1 year on probation if there is a defense lawyer)
- private prosecution
- Enforcement of sentences in juvenile matters
Legal remedies are the appeal and complaint to the small criminal division and the jump revision to the criminal division of the Higher Regional Court.
The district court may order placement in an addiction treatment facility under Section 64 of the Penal Code, but not in a psychiatric hospital under Section 63 of the Penal Code. If it emerges during the proceedings that such a case is seriously considered, the matter must be referred to the district court.
criminal judge
The criminal judge is responsible if offenses are accused and no more than two years imprisonment are to be expected ( § 25 No. 2 GVG), whereby he has the full power of punishment of the district court (four years imprisonment). However, the choice of judges must not be arbitrary. If the legal consequence of the opening decision is greater than 2 years imprisonment, it must be opened before the lay judge.
jury court
The jury is responsible for all criminal matters to be heard before the district court for which the criminal judge is not responsible ( § 28 GVG).
These are:
It is staffed by a professional judge and two lay judges . Under special circumstances, a second professional judge can be consulted (extended lay judges). However, this has become rare in practice.
Against decisions of the district court lay judges, the appeal and complaint to the small criminal division and the jump revision to the criminal senate of the higher regional court is given. An appeal against a judgment of the extended court of lay judges also requires the participation of a second professional judge before the court of appeal. As a special feature, an appeal against a judgment of the district court's lay judges at the district court is decided by a panel of judges that has exactly the same composition as that of the first instance. This is due to historical reasons, as an appeal against a judgment of the lay judge was heard before the large criminal chamber.
district Court
At the regional court level , the small and large criminal chambers and the latter as a jury are available as jury bodies.
Small Trial Chamber
The Small Criminal Court is the court of appeal against judgments of the District Court. It is staffed by a professional judge and two lay judges.
The appeal to the criminal division of the Higher Regional Court takes place against the judgments of the small criminal chamber on an appeal.
Great Trial Chamber
The Grand Criminal Court has jurisdiction in the first instance if crimes are charged that do not fall under the jurisdiction of the Local Court or the Higher Regional Court (collective jurisdiction).
It is also responsible for all criminal offenses if an expected prison sentence is likely to exceed four years or placement in a psychiatric hospital or in preventive detention is expected.
The large criminal chamber is also responsible as the court of first instance if the public prosecutor's office files charges with the regional court because of the special need for protection of victims of the criminal offense who can be considered as witnesses, the special scope or the special importance of the case. The first alternative is intended to protect victims of sexual offenses in particular from having to testify as witnesses in two factual instances.
It consists of two lay judges and two or three professional judges, with two being the norm. However, such a staffing reduction must be determined in advance by resolution.
Appeal judgments (only relevant for the youth chamber) can be appealed to the criminal division of the Higher Regional Court.
The large criminal chamber also decides as a complaints chamber on complaints against decisions of the district court. If a further complaint is possible, it will be submitted to the Higher Regional Court for a decision.
jury
The jury court is a variant of the large criminal chamber, in which two lay judges and three professional judges are mandatory. It is responsible for all crimes related to the death of a person (including attempted death), apart from negligent homicide, abortion and euthanasia . Permissible legal remedies are the appeal to the criminal division of the Higher Regional Court and the appeal to the criminal division of the Federal Court of Justice.
Higher Regional Court
At the Higher Regional Court, criminal senates decide in criminal matters as arbitration bodies.
The criminal senate of the Higher Regional Court is staffed with three professional judges as an appeal instance and initially with five professional judges as a factual instance ( § 122 GVG).
It is responsible as an appeals body against judgments of criminal judges and lay judges (as well as their appeal bodies) and as a complaints body against decisions of the criminal divisions of the regional court, § 121 GVG. In addition, the Higher Regional Court is the instance for legal complaints according to Section 79 , Section 80a OWiG as the so-called “fine fines senate”; the fines senate is generally staffed by one professional judge, unless the legal complaint is transferred to the fines senate with 3 professional judges due to a complaint of more than €5,000.
Furthermore, according to § 120 GVG, it decides as a first-instance body and thus as a factual instance if the accused criminal offense concerns the preparation of a war of aggression or a crime of high treason or treason . In addition, crimes under Section 129a of the Criminal Code (establishment of or membership in a terrorist organization ) fall within the first instance jurisdiction of the criminal divisions of the Higher Regional Courts. The respective senate is also referred to as the state protection senate .
There is no legal remedy for his non-first-instance decisions, for the first-instance there are sometimes appeals or appeals to the Criminal Division of the Federal Court of Justice. However, the Higher Regional Courts have to check their decisions against the decisions of the other Higher Regional Courts or the Federal Court of Justice with regard to legal uniformity, Section 121 (2) GVG, and submit them to the BGH in the event of discrepancies.
It decides on complaints against the regulatory measures imposed by lower courts (district court, regional court) ( section 181 ).
Federal Court of Justice
The Federal Court of Justice has criminal senates as judges.
The Criminal Senate of the Federal Court of Justice always decides in a cast of five professional judges. The Senate consists of more than five professional judges. The Federal Court of Justice is responsible as the appeals body of the Higher Regional Court ( Section 135 (2 ) GVG) and as an appeal body for the Regional Court and the Higher Regional Court ( Section 135 (1) GVG). In addition, it decides on submissions from the Higher Regional Courts if they want to deviate from decisions of the Federal Court of Justice or another Higher Regional Court in certain criminal proceedings ( § 121 Para. 2 GVG).
There are no ordinary legal remedies against the decisions of the Federal Court of Justice. However, violations of the constitution can be reprimanded with a constitutional complaint to the Federal Constitutional Court . However, this does not make the Federal Constitutional Court an authority above the Federal Court of Justice, but only examines its decisions for violations of the constitution and, if necessary, revokes them.
itemizations
- ↑ Handbook of Justice 2016/2017
