A word or term has a specifically jurisprudential meaning in this sense, primarily because it is used and taken up in laws and its content is determined and specified either by the law itself or by its interpretation by courts and legal doctrine. Not all legal terms are defined by a legal definition . In legal transactions and everyday life, for example, terms such as interest or deed are not legally defined, but are assumed to be known. This means that in the event of disputes, it must be checked in individual cases whether the discount is part of the interest or whether the stamp is to be regarded as a document. Despite the lack of a legal definition, the legislature uses these terms very often (interest, for example, in (1) BGB in the case of loan agreements , documents in the context of StGB in the case of forgery ). If there is no legal definition, it is initially unclear whether certain legal consequences will arise in individual cases. If someone forges stamps, the question arises whether this can be punished as a forgery of documents. In the special section of the Criminal Code, there is no further element of the offense that equates to the concept of a document in terms of the difficulty of interpretation and the confusion of the judicature. In terms of civil procedure law, the document is a written declaration of ideas ( Paragraph 1 of the German Code of Civil Procedure ).
Legal terms are, for example, “ property ”, “ right of retention ”, “ contract ”, “ public order ” or “ order ”. In contrast, the word “legal concept” itself is not a legal term in this sense, since it lacks a specifically jurisprudential meaning. It only has such a specific meaning as a compound term “certain legal term” and “indefinite legal term”.
It is not always important for the legislature to introduce a so-called “well-defined” term in the sense of the exact sciences , which is given an expressly precise and unambiguous legal definition. Only then can a decision be made at any time as to whether or not certain facts are subject to it. Therefore a distinction is made between definite and indefinite legal terms.
Certain legal terms
If terms are clearly defined in terms of content, they are specific legal terms. The unambiguity arises when they are perceptible with the senses (" read out , approved by the parties and personally signed in the presence of the notary"; certification according to BNotO ), are established from a scientific point of view ("the power of attorney ends with the death of the principal ") Or by at least one legal norm (" contribution periods are times for which mandatory contributions (compulsory contribution periods) or voluntary contributions have been paid under federal law ", (1) SGB VI ).
The definitive legal terms also include the final lists ( enumeration principle ). Only the final lists belong to the specific legal terms; Non-exhaustive lists, on the other hand, are indefinite legal terms . In the case of the final variant, the legislature is keen to limit the number of cases affected by the regulation from the outset and to exclude other, unlisted facts from the regulation. If the legislature indicates by means of an enumeration that it does not allow the scope of application to be extended to similar, unmentioned cases ( enumeratio ergo limitatio ), then it is a final list. The final list has an exclusionary effect for all facts not covered by the regulation and cannot be expanded through interpretation. It can be technically recognized by the choice of words used in the law (mostly “only”, “exclusively”).
The legislature adds to the confusion by defining the same particular legal term differently in the same law. In German Civil Code , “ uses ” are exclusively material fruits , whereas in BGB they are also legal fruits . This inconsistent legal technique does not contribute to legal security .
Indefinite legal terms
However, the legislature is sometimes interested in using indefinite legal terms with ambiguous content. This is mostly done on purpose, in order not to exclude future concrete developments in everyday practice from the outset by means of a precisely defined legal regulation and / or to leave the case law and literature to subsume an individual case under the terms or to specify the indefinite terms. The wording in the law has then been made so openly that the definition of the content depends on the specific facts to which the standard is to be applied. The refusal of a license for a restaurant according to (1) GastG depends on whether the applicant has the required reliability . In individual cases, it must then be clarified in court which personal characteristics belong to reliability. The lack of windows and walls in the building term is certainly not a legal loophole ; rather, the legislature wanted to include as many structures as possible (such as windowless warehouses) with this provision. Building is in para. 1 no. 1 StGB ( arson ) differently than defined in Paragraph 1, No. 1 StGB ( theft ). In this respect, conscious loopholes in the law have the task of being open to unregulated issues. Unspecified legal terms are mainly used in the area of facts, less often on the legal side.
In the non-exhaustive list, the legislature wants to include the cases listed as examples in the offense, but expressly allows non-listed facts for a later extension ("..., in particular ..." or "belong to ..."). It therefore depends on the use of certain key words that suggest a non-exhaustive list. Then it is left to the courts to include the facts not listed in the standard by way of extension and thus run the risk of violating the uniqueness rule. It says that unambiguous and clearly formulated laws are not open to interpretation.
(from Leipzig corpus):
"Although influenced by Kant , he rejected his formalism and determined the legal concept not in a formal-positivistic way, but in terms of content: based on the highest legal value, justice."
"Their whole legal concept is their fear."
- Only the term borrowing rate is defined in (5) BGB
- Diethelm Kienapfel : Documents in criminal law . Klostermann, 1967, ISBN 3-465-00486-8 , p. 41 f . ( limited preview in Google Book search - with further evidence).
- BGHZ 35, 300, 301.
- Schaer info on legal terms ( structure of a public [-] legal norm )