Legal decision

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In German housing tenancy law , the legal decision was a binding decision by a higher court in the instance of a higher court if the lower court, as the court of appeal, wanted to deviate from the case law of a higher court in its decision. Regional courts were then obliged to submit certain legal questions to the Higher Regional Court , and higher regional courts to submit them to the Federal Court of Justice .

The institute of legal decision was abolished on January 1, 2002.

In the Free State of Bavaria , the Bavarian Supreme Regional Court (BayObLG) was responsible for making legal decisions .

history

According to § 541 ZPO in force until 1 January 2002 had regional courts when they are in appeal proceedings in deciding a question of law arising from a rental contract gives a living room or concerns the existence of such a lease relationship, by a decision of the Federal Court or wanted to deviate from a higher regional court, to bring about a decision in advance of the higher regional court on this legal issue . The same applied if such a legal question was of fundamental importance and had not yet been decided by a legal decision. If the higher regional court wanted to deviate from the decision of the Federal Court of Justice or another higher regional court, it had to refer the legal question to the Federal Court of Justice. The decision made in the legal decision was binding for the regional court.

This regulation was applicable in accordance with Art. III, Paragraph 1, Clause 3 of the Third Act on the Amendment of Tenancy Law of December 21, 1967 in conjunction with d. F. of the law of June 5, 1980 and was inserted unchanged into the ZPO in 1990. The ZPO reform law of July 27, 2001, which came into force on January 1, 2002 , has deleted the provision without replacement.

The purpose of the legal decision was to re-establish legal unity in the area of ​​residential tenancy law, which until then was no longer guaranteed in practice to a considerable extent because of the appeal to the regional court.

The legislature justified the abolition of the legal decision by the ZPO Reform Act with the fact that, due to the further changes to the ZPO Reform Act, in particular the reduction of the appeal sum to 600 euros and the possibility of an admission appeal, it was now sufficiently guaranteed that the case law was also standardized in residential rental law without the need for the previous special provision.

In contrast to an appeal or an appeal , the legal dispute submitted for a legal decision was not submitted as a whole to the higher court. Only a single legal question was removed from the trial material and submitted to the higher court for an answer. In this respect, the legal decision-making process shows certain similarities with the specific control of norms .

criticism

In jurisprudence, the institute of legal decisions was viewed as a binding legal opinion and thus a form of decision-making that was completely alien to the German judicial system.

Overall, the legal decision was welcomed to the extent that it enabled the higher courts to influence the housing rental process. The extent of the binding effect was also criticized. In particular, the assessment of the circumstances of the individual case could be neglected in the case of legal decisions.

In addition, in the case of legal changes in tenancy law, it was always doubtful whether the legal decisions made under the old version of the law would lose their binding effect.

It was also problematic that the burden of ensuring that the case law was uniform was initially incumbent on the regional court dealing with the matter. The regional court responsible in the appellate instance had to check itself whether the legal question was of fundamental importance or whether the opinion of the court concerned deviated from an already issued legal decision. All district courts had to be well aware of the entire relevant higher court case law when deciding on legal proceedings relating to residential tenancy.

literature

Individual evidence

  1. ↑ § 541 ZPO old version
  2. ↑ Federal Law Gazette I 1248
  3. ↑ Federal Law Gazette I 657
  4. ↑ Law on the Reform of Civil Procedure Legal Materials
  5. ↑ OLG Karlsruhe, decision of August 9, 1984 - 3 Re-Miet 6/84 ( memento of the original of September 24, 2015 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.schimmelpilz-sanieren.de
  6. ↑ Bundestag printed paper 14/4722  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , P. 103.@1@ 2Template: Toter Link / www.bmj.bund.de  
  7. ↑ a b Landfermann: Rechtsentscheid am Scheideweg In: Neue Juristische Wochenschrift Heft 44, 1985, pp. 2609, 2610.
  8. ↑ Hinz: ZPO-Reforum and Mietprozess In: Neue Zeitschrift für Miet- und Wohnungsrecht Heft 13, 2001, pp. 601, 608.