Legal Advice Act
| Basic data | |
|---|---|
| Title: | Legal Advice Act |
| Previous title: | Law for the Prevention of Abuse in the Field of Legal Advice |
| Abbreviation: | RBerG |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Administration of justice , professional law |
| References : | 303-12 a. F. |
| Original version from: | December 13, 1935 ( RGBl. I p. 1478) |
| Entry into force on: | December 18, 1935 |
| New announcement from: | January 1, 1964 ( Federal Law Gazette III p. 28) |
| Last change by: |
Art. 21a G of June 21, 2002 ( Federal Law Gazette I p. 2010, 2072 ) |
| Effective date of the last change: |
July 1, 2002 (Art. 23 G of June 21, 2002) |
| Expiry: | July 1, 2008 (Art. 20 No. 1 G of December 12, 2007, Federal Law Gazette I p. 2840, 2860 ) |
| Please note the note on the applicable legal version. | |
The Legal Advice Act (RBerG) , until 1964 the law for the prevention of abuse in the field of legal advice , regulated the commercial handling of foreign legal matters in Germany until June 30, 2008, along with five implementing ordinances . According to this, in addition to lawyers , patent attorneys , tax consultants and notaries, only those persons were allowed to deal with third-party legal matters - including the collection of claims ( debt collection ) - who had been granted appropriate official permission. For example, other people were not allowed to use the designation legal counsel or run a debt collection company.
On July 1, 2008, the Legal Advice Act was replaced by the Legal Services Act.
history
Until 1935 there was no legal regulation that restricted the group of people who could provide legal advice . According to the trade regulations of 1869, freedom in commercial life also applied to the field of legal advice. Everyone was fundamentally authorized to deal with third-party legal matters commercially. This changed in December 1935 with the introduction of the Law for the Prevention of Abuses in the Field of Legal Advice . From then on, legal assistance was tied to the granting of a permit. The applicant was checked for the required reliability and personal suitability as well as for sufficient expertise. The main aim of the law was to prevent Jewish lawyers, who were excluded from the bar in 1933 , from turning to non-attorney legal advice. Therefore, in Section 5 of the First Ordinance on the Implementation of the Legal Advice Act of December 13, 1935, it was stipulated that Jews would not be granted the permit required under Section 1 of the RBerG. As a result of this regulation, the Jewish judges and public prosecutors still in office, who had to retire from service at the end of 1935 according to the First Ordinance on the Reich Citizenship Law , were unable to provide legal advice.
The preparatory work for the Legal Advice Act, however, dates back to the 1920s; the original purpose of the draft law was to protect those seeking legal advice from unqualified legal advice. Further (secondary) protective purposes of the Legal Advice Act were to guarantee the smooth running of legal transactions and to protect lawyers from competition. All in all, the Legal Advice Act had no pronounced National Socialist tendency and was neither a law of a political nature nor an exceptional law.
The implementing regulations that prevented Jews from legal advisory activities were repealed in 1945 with the Control Council Act No. 1 ; beyond that, however, the law remained in force. In 1962 the law was included in the collection of federal law under the amended heading “Legal Advice Act”. The Federal Constitutional Court repeatedly confirmed the Legal Advice Act as compatible with the Basic Law , just as the Legal Advice Act does not violate EU law or the European Convention on Human Rights .
The fifth law amending the federal fee schedule for lawyers of August 18, 1980 ( Federal Law Gazette I p. 1503) closed the profession of full legal counsel . After a short transition period, new admission of legal advisers was only possible with partial permits for certain areas of law. The permits already granted continued to apply; legal advisors with full permits could apply for admission to the Bar Association in accordance with Section 209 of the Federal Lawyers' Act . The closure of the legal counseling profession also meant that free legal service providers could no longer be granted a permit under the Legal Advice Act.
Criticism of the RBerG
The law received increasing criticism. It was seen as a regulatory instrument serving to protect the economic interests of the legal profession and as a paternalism of the citizen, by which altruistic activities would also be inappropriately restricted. In particular, the lack of definition of legal advice within the meaning of the law made it difficult to distinguish between permitted and unauthorized advice by non-lawyers. This included, for example, advice on funding , which, according to the interpretation at the time, should be reserved exclusively for lawyers.
However, a public statement by the federal government on the subject of insolvency advisors enabled management consultants to be active in this area.
On July 29, 2004 the Federal Constitutional Court decided that the regulations on fines of the RBerG should be interpreted in the light of its protective purposes. In the specific proceedings, the conviction of a retired judge was overturned. He had reported himself because of the (free of charge) handling of third-party legal matters and announced that he would continue to do so without having the appropriate authorization. The advice seekers are not at risk in this special case due to the considerable professional experience of the former judge. His sentencing to a fine is therefore disproportionate and violates his general freedom of action ( Article 2, Paragraph 1, Basic Law ).
Isolating the German market from foreign providers from the EU area , who are allowed to give legal advice abroad without permission , was viewed by critics as a violation of EU law from the point of view of the freedom to offer services throughout Europe. In other countries such as B. USA, Austria and Switzerland there is no comparable regulation. In the report for the 58th German Lawyers' Conference in Munich 1992, pp. C68 ff., Ulrich Everling states that none of the EU member states he examined reserve legal advice to lawyers. Not even the paid commercial legal agency is subject to restrictions comparable to those in the Federal Republic of Germany in other states. In some states there are no admission requirements for professional legal advice at all. Only the use of the professional designation " lawyer " is bound to the usual requirements. In all of these states, everyone is free to provide legal advice even without appropriate professional training and exams.
Individual evidence
- ↑ Kleine-Cosack, Commentary on the Legal Advice Act , Heidelberg 2004, page 38 Rn. 3
- ↑ Kleine-Cosack, Commentary on the Legal Advice Act , Heidelberg 2004, page 38 Rn. 2
- ↑ RGBl I p. 1481
- ↑ Opinion by RiBGH Caliebe before the Legal Committee of the Bundestag ( Memento from September 24, 2007 in the Internet Archive )
- ↑ Kleine-Cosack, Commentary on the Legal Advice Act , Heidelberg 2004, page 44 Rn. 17th
- ↑ Kleine-Cosack, Commentary on the Legal Advice Act , Heidelberg 2004, page 45 Rn. 18th
- ↑ Chemnitz / Johnigk, Commentary on the Legal Advice Act , 11th edition, Cologne 2003, preliminary remark Rn. 3
- ^ Weber: The order of legal advice in Germany after 1945. From Legal Advice Abuse Act to Legal Services Act , Tübingen 2010, page 67 ff.
- ↑ BVerfGE 41, 378; 75, 246, 275; 97, 12, 26
- ↑ ECJ AnwBl 1997, 114
- ↑ EGMR NJW 2001, 1555 (EGMR fourth section, admissibility decision of April 20, 1999, complaint no. 33099/96 [Hoerner Bank GmbH / Germany])
- ↑ BVerfG 1 BvR 737/00 , decision of the 3rd Chamber of the First Senate of July 29, 2004.
- ↑ On free legal advice from an experienced lawyer , press release No. 76/2004 of August 5, 2004, Federal Constitutional Court
- ↑ (DFG-VK journal 4/3)
literature
- Günter races, Gabriele Caliebe: Legal advice law. With implementation regulations and explanations. 3rd revised edition. Beck, Munich 2001, ISBN 3-406-45470-4 .
- Jürgen Chemnitz, Frank Johnigk: Legal Advice Act. Comment. 11th revised edition. Aschendorff et al., Münster 2003, ISBN 3-933188-07-5 .
- Michael Kleine-Cosack: Legal Advice Act. Comment. = RBerG. CF Müller, Heidelberg 2004, ISBN 3-8114-3107-2 .
- Simone Rücker: Legal advice. Legal advice from 1919–1945 and the emergence of the Legal Advice Abuse Act of 1935. Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149339-3 ( Contributions to the legal history of the 20th century 54), (also: Bayreuth, Univ., Diss ., 2006/2007).
- Thomas Weber: The order of legal advice in Germany after 1945. From the legal advice abuse law to the legal services law. Mohr Siebeck Tübingen 2010, ISBN 978-3-16-150378-8 ( contributions to the legal history of the 20th century 64), (also: Bayreuth, Univ., Diss., 2009/2010).
