Process maxim
The process maxims (also process principles) form the principles of the respective procedural law of procedural law .
Different maxims apply depending on the type of procedure. These are determined according to the telos (purpose of the procedure) of the dispute or of the undisputed procedure. In legal history , the process maxims have always been in flux. The following process principles can be distinguished. The applicable process maxims are partly derived from the constitution .
In detail, the following process principles can be compared with each other ( giving application examples from the applicable German process regulations ):
| Stage of the process | principle | Opposite term |
| Agreement phase , avoidance of the process | Administrative matters: obligation to conduct preliminary proceedings ; Civil disputes: § 15a EGZPO , dunning procedure | |
| Introductory phase , start of the process | Disposition maxim = disposition principle ( civil process, administrative process ) | Official maxim ( criminal trial, exception: private lawsuit ); Principle of legality , exception: principle of opportunity |
| Preparation phase , collection of process material; (e.g. criminal process: preliminary investigation ; civil process: § 272 ff. ZPO ) | Negotiation principle = provision principle, formal concept of truth ( civil litigation ) | Principle of official investigation, inquisition maxim = principle of investigation; material concept of truth ( administrative process, criminal process ) |
| Implementation phase , negotiation of the process material | Principle of the public ( civil, criminal, administrative ) | Non-public (e.g. criminal proceedings against young people , certain family disputes (paternity lawsuit )) |
| Orality , principle | Written form, exception; (Practically the rule, especially in (district court) civil proceedings) | |
| Principle of immediacy (e.g. § 309 ZPO) | Indirectness (Above all, there is no compulsion to be direct in public administrative matters.) | |
| Acceleration principle of §§ 198 ff. GVG | ||
| Review phase , error control and correction | Principle of the right to be heard ( all German procedural codes ) | |
| Right to the legal judge | ||
| Right to a fair trial ( Art. 6 Para. 1 ECHR ), principle of equality of arms (civil process) | ||
| Implementation or enforcement phase | ||
| Different phases | Objectivity principle of the public prosecutor, § 160 Abs. 2 StPO | |
| Official operation | Party operation | |
| Accusation principle = indictment principle | Inquisitorial process = initiation and implementation of the procedure by the same authority | |
| Concentration principle ( all German procedural rules ) | ||
| adversarial procedure = litigation ( civil, administrative ) | undisputed procedure = procedure without party roles ( criminal procedure, voluntary jurisdiction procedure, constitutional complaint procedure ) |
literature
- Helmut Schnellenbach : Principles of the judicial procedure . In: Juristische Arbeitsblätter , 1995, p. 785 ff.
