Qualification (international private law)
The qualification is the subsumption of the legal question of a situation with international relevance under a conflict of law norm of international private law (short: IPR) that is decisive for the situation . In other words: Qualification according to the IPR is a legal process to find the right conflict of law rule for a case with international contact, i.e. the norm that determines the applicable substantive law for this case. Only the qualification leads to the connection , which in turn leads to the applicable material law, the material norms of the so-called lex causae .
For this purpose, the legal question arising from the circumstances in life is assigned to a legal system term that occurs in a conflict of law rule, a so-called connecting object . Such connecting objects are, for example, the legal succession due to death in Art. 25 EGBGB , the name of a person in the international naming law (§ 10 I EGBGB), the divorce in Art. 17 EGBGB, the marital and post-marital maintenance in the maintenance law of Art. 18 EGBGB, the matrimonial effects of marriage in Art. 15 EGBGB or the real legal situation of things in international property law (Art. 43 I EGBGB).
In the case of a conflict of law rule, the related object - usually a typical feature of the real life situation to be assessed - is then connected, which actually assigns the legal question of the matter to be decided to a specific legal system . This typical feature is referred to as the point of contact or the point of contact and usually indicates the closest connection between the facts of a field of law and a legal system. Connection points are z. B. the nationality of the testator in Art. 25 EGBGB, the nationality of a person in naming law (Art. 10 EGBGB), the habitual residence of the dependent in Art. 18 EGBGB or the location of a thing in international property law (cf. the so-called lex rei sitae of Art. 43 I EGBGB)
The qualification of a legal question, i.e. the subsumption under the correct connecting object of a conflict of law rule (interpretation of the elements of a norm) can be done on the basis of different standards:
- As a rule, the qualification in international private law, ie the subsumption of a legal question under a related object in a conflict of law rule, is carried out autonomously. This means that the legal question is qualified according to the meaning and purpose of one's own conflict of law rule ( autonomous from substantive law ). This type of qualification is often (incorrectly) referred to as a lex fori qualification, as it takes on the evaluation of its own collision rule . The autonomous qualification corresponds to the legal understanding prevailing in Germany and that of most other countries.
- The “real” lex-fori qualification qualifies the legal question of the valuation of one's own material law. The advantage of this qualification method lies in the promotion of internal consistency in decision-making, because comparable issues can always be qualified in the same way in Germany. However, international issues are forced to value one's own material law. This view is rarely held today.
- Further possibilities of qualification are the qualification according to the lex causae , the comparative law qualification and the functional qualification .
It speaks against the qualification according to the lex causae that one cannot qualify according to a statute which one wants to attain through the qualification (circular reasoning). In the case of qualification according to the lex causae, a hypothetical statute of effect would therefore first have to be determined according to the domestic conflict of law rules, which would then have to decide on the correctness of the qualification already carried out .
The comparative law qualification according to Rabel is mainly rejected for reasons of practicality. This is followed by the classification of the legal institutions in the connecting objects of the conflict of law rules according to legal-political purposes.
One problem that arises with autonomous qualification are unknown legal figures of foreign law that appear domestically. Here, the autonomous qualification is often supplemented and combined by the functional qualification : On the basis of the ideas about the function of the legal institution to be qualified, in which the legal issue arises, a qualification is based on the function and purpose of a foreign legal entity . Here, according to foreign ideas, the function of a foreign legal figure is determined (lex-causae standard) and this legal figure is then compared with institutions of the German legal system based on the function determined in this way. The classification of the foreign legal figure is then based on the function in a related object of a suitable German conflict of law rule.
The domestic meaning of some important connecting factors (system terms) is (according to the standard of the autonomous qualification with regard to the function):
- Function of matrimonial property law , Art. 15 EGBGB : Allocation of the current and future property of the man and the woman during the marriage and the time of its liquidation.
- Function of the pension equalization , Art. 17 III EGBGB: social security for old age by accumulating pension entitlements.
- Marital and post-marital maintenance , Art. 18 EGBGB: Need during marriage and social security after divorce due to the idea of continued post-marital solidarity.
The functional qualification is also used as an aid in determining the correct system term in the case of several competing objects of connection with different conflict-of-law rules, ie if a legal institution could, for example, be assigned to marriage, inheritance and maintenance law. Here, too, a different approach is possible within this type of qualification: The idea of which function should form the benchmark for classification in various possible foreign and domestic functions of one and the same legal institution can be based on the autonomous qualification, i.e. the purpose of the domestic one Conflict rule (cone), the lex fori, i.e. according to the purpose of domestic substantive law, the lex causae, i.e. the purpose of the substantiated substantive law (Neuhaus, Lewald) but also in combination (v. Hoffmann).
literature
- Helmut Weber: The theory of qualification. Franz Kahn, Etienne Bartin and the development of their teaching up to the universal recognition of the qualification as a general problem of international private law (1890–1945) , Tübingen 1986
