precedent
A precedent (or prejudice ) describes a legal case, the decision of which has become the yardstick for other cases.
The most important role is played by precedents in common law ( doctrine of precedent ). The case law there is based, among other things, on being bound by previous court decisions ( stare decisis ). The court decision itself becomes part of the legal system and is the basis for further judgments. Binding precedents primarily bind lower-ranking courts (binding effect).
The continental European legal system, on the other hand, follows the positivist ideal of "legal centrism", i. H. the primacy of the law over case law. When making decisions, the judges are subject to the law and not to the decisions of other courts (see, for example, Section 25 DRiG ). One can only speak of a precedent if a higher court stipulates fundamental principles for the interpretation of this law in a judgment . What is decisive, however, is that the law is also applied in the future and that the precedent for this only provides an aid to interpretation. Other courts are not bound by precedents themselves. That is why in Germany one does not usually speak of precedents, but of fundamental decisions .
Certain decisions of the Federal Constitutional Court are an exception if they repeal laws because they are unconstitutional and / or temporarily make a replacement regulation.
Precedents are also important for the action of the state administration: If there is a discretionary decision that has not been challenged in court or was held in court, others can invoke it and the precedent becomes the yardstick for future action.
international law
Please refer
- Declaration of independence by Kosovo , which is seen by some countries as a precedent for further secession efforts or
- the alleged prejudice put forward by Slovenia in the case of border determination on Croatian maps, see International conflicts of the successor states of Yugoslavia
See also
Individual evidence
- ^ Declaration on one page of the Federal Agency for Civic Education , accessed on February 29, 2012.
