As a precedent ( lat. Praeiudicium , preliminary decision ') refers to a landmark court decision, which the Court particularly affected the lower courts. The importance of this leading decision lies in the extensive binding effect for the subordinate courts, which leads to the unification of the case law.
Legal situation in Germany
In German law , courts are not bound by judgments that have not been issued in the same legal dispute. In Germany, courts can deviate from decisions of their own court or other courts, even the highest federal courts ( Federal Court of Justice , Federal Labor Court , Federal Administrative Court , Federal Fiscal Court and Federal Social Court ). Under certain circumstances, however, the court may then be obliged to transfer the case to a specific panel (e.g. to the joint senate of the highest federal courts ).
According to Basic Law , judges are only subject to the law. A binding to prejudices is alien to German law. However, the decisions of the appellate courts, in particular the highest federal courts, have in fact a significant binding effect, because the application of the law by the courts is based on the case law of the appellate courts in the interests of legal certainty , equality of application and legal peace (so-called “ permanent case law ”). Only when a permanent jurisprudence solidifies in such a way that customary law arises (this was the case, for example, with the so-called positive breach of claims up to their legal standardization in 2001), the courts are bound by it. However, decisions with a "legal ethical breakthrough" (first confirmation of a legal ethical postulate) as well as so-called "grasped values" (court decisions on the numerical quantification of legal norms , such as setting the limit of absolute inability to drive at 1.1 per thousand ) are also binding .Paragraph 1 of the
In Germany, individual legal areas are hardly regulated by law (for example industrial action law ), so that the key decisions play an important role in these areas.
Special features at the Federal Constitutional Court
The special feature of the Federal Constitutional Court is that, according to § 31 BVerfGG, the judgments of the Federal Constitutional Court are binding on everyone. It is at the same time a final decision-making court standing outside of the courts as well as a political constitutional body.
"[The] decisions of the Federal Constitutional Court [have] a binding effect that goes beyond the individual case in accordance with Section 31 (1) BVerfGG, insofar as the principles for the interpretation of the constitution by the courts in all future ones resulting from the tenor and the supporting reasons for the decision Cases must be observed. "
The discussion about the role of the Federal Constitutional Court as an organ with the dual authority to generate law and to create a prejudicial normative effect is conducted in two dimensions. It is generally assumed that the court is to be qualified as a special case in the context of the judiciary, which is why it must be concluded on the other hand that prejudices cannot otherwise create any binding force. In this context, a reference to Section 31 (1) BVerfGG is sufficient. On the other hand, from a specifically constitutional point of view, the question of the binding effect of the decisions is raised and answered differently. The focus is on questions regarding the scope of constitutional decisions as well as the binding nature of the court's legal statements on the interpretation of the constitution within the framework of Section 31 (1) BVerfGG.
Otherwise legal situation in continental Europe
Prejudices are also generally not binding in most of the other continental European legal systems, as they too are mostly characterized by the codification of laws. However, there are differences from legal system to legal system. A special feature of Spanish law z. B. is the idea of the double prudence ("Jurisprudencia").
Legal situation in the Anglo-American legal area
The meaning of the prejudices in the Anglo-American legal system is completely different. The law there (so-called case law ) is based on the principle that the courts are bound by prejudices (so-called leading cases ). Large areas of law are hardly regulated there by laws, but rather by precedents that sometimes go back hundreds of years .
The expression "without prejudice"
The expression “ without prejudice ” means that a disputed claim is partially or even fully fulfilled, but that the recognition of this claim is not to be understood in the sense of an admission of guilt. This phrase is often used in comparisons . "Without prejudice" occurs z. B. a goodwill insurance payment to emphasize that future similar events must be considered regardless of this case.
- Mehrdad Payandeh : Judicial Law Generation. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017. ISBN 978-3-16-155034-8 .
- Ellen Schlüchter : Mediator function of the prejudices - a comparative law study . de Gruyter, Berlin / New York 1986, ISBN 3-11-010585-3 .
- Daniel Oliver Effer-Uhe : The binding effect of prejudices - an investigation from the point of view of principle theory and fuzzy logic. Cuvillier, Göttingen 2008, ISBN 978-3-86727-556-9 .
- Sebastian Schalk : German prejudices and Spanish “jurisprudence” of civil law - a comparative comparison. Lang, 2008, ISBN 978-3-631-58561-0 .
- Mehrdad Payandeh : Judicial creation of law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . P. 373 ff.
- BVerfG, decision of June 10, 1975 - 2 BvR 1018/74 - driving license, BVerfGE 40, 88.
- Günter Hager : Legal methods in Europe. Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-149841-1 . P. 210.
- Very critical: Andreas Vosskuhle in v. Mangoldt / Klein / Starck : Commentary on the Basic Law: GG Volume 3, 6th edition 2010, Art. 94 Rn. 31; equally critical: Christoph Möllers : legality, legitimacy and legitimation of the Federal Constitutional Court. In: Jestaedt , Lepsius , Möllers and Schönberger : The court without borders: A critical balance sheet after sixty years of the Federal Constitutional Court. Suhrkamp, Berlin 2011, ISBN 978-3-518-12638-7 . P. 281 ff. (382 f.)