In Germany and Austria, judicial officers are senior civil servants who, according to the respective legal systems, perform a variety of tasks at the courts and, in Germany, also at the public prosecutor's offices. In both countries, their are responsibilities mainly through the transfer of originally the judge entitled to decisions regulated and other tasks. In Germany these regulations are met by the Rechtspflegergesetz . The judicial officers' decisions are mostly made in the form of resolutions . Areas of responsibility, legal status and training differ considerably in both countries. There are also judicial officers in Liechtenstein's court organization .
In Germany, Rechtspfleger are civil servants of the senior judicial service at courts and public prosecutors who are legally qualified and who perform the tasks assigned by the Rechtspflegergesetz (RPflG). Most of these tasks used to have to be done by judges, and after the Second World War they were increasingly transferred to Rechtspfleger.
Just like judges, judicial officers are not dependent on instructions from a superior in their decisions and are only bound by law and statute (“factual independence”). An exception to this is the work in the execution of sentences at the public prosecutor's offices. In contrast to judges, Rechtspfleger are not "personally" independent. For example, a transfer to another court is possible without the consent of the judicial officer if the civil service requirements are met.
A senior judicial officer can be entrusted with the duties of a senior judicial officer who has completed a preparatory service of three years and passed the judicial officer examination ( Section 2 (1) RPflG). Anyone who wants to become a Rechtspfleger must be a German within the meaning of the Basic Law or a citizen of a member state of the European Union. However, some federal states have made use of the option of Art. 45 Para. 4 TFEU (formerly: Art. 39 Para. 4 EC Treaty ) and only allow applicants with German citizenship for the preparatory service.
The duties of a senior judicial officer can also be entrusted to anyone who is qualified to be a judge ( Section 2 (3) RPflG). Legal trainees can be commissioned to temporarily take on the business of a senior judicial officer ( Section 2 (5) RPflG).
The professional journal Der Deutsche Rechtspfleger and the Rechtspfleger study booklets deal with the Rechtspfleger law and the areas of law for which the Rechtspfleger is responsible .
Rechtspfleger organize themselves as a union in the German Association of Officials (there: Bund Deutscher Rechtspfleger ) or in ver.di (there, Department 06 Federal / State, Department of Justice).
The number of judicial clerks in the courts in 2017 was around 13,000 (compared to around 21,000 positions in the judicial service) and around 2,500 in the public prosecutor's offices (including almost 1,000 public prosecutors ; public prosecutor service for comparison: around 5,500 positions). The proportion of senior judicial officers is greatest in ordinary and labor jurisdiction.
One focus of the judicial activity is the voluntary jurisdiction , in which judges - with a few exceptions - only act in the appellate instance. The tasks result from the Rechtspflegergesetz.
For example, voluntary jurisdiction includes:
- Inheritance law ,
- Care law ,
- Guardianship law ,
- Family matters ,
- Land register law and
- Registration rights consisting of:
In addition, Rechtspfleger are entrusted with the following tasks of the disputed jurisdiction:
- Dunning procedure ,
- Foreclosure ,
- Foreclosure sale ,
- Receivership ,
- Bankruptcy proceedings ,
- Fixing costs ,
- Execution of sentences ,
- Legal application center and
- Advisory assistance .
Senior judicial officials who are employed in court administration in areas such as management, personnel management , budget , information technology and planning / organization or the like, are not active as judicial officers - even if they have completed a legal clerk's training. As administrative officials, you are not independent, but are bound by instructions from your superiors.
The legal requirements for working as a Rechtspfleger are regulated by Section 2 of the Rechtspflegergesetz. Employment in the preparatory service is carried out by a recruiting authority, in most German states these are the higher regional courts. The prerequisite for employment is a high school diploma as well as passing an entrance examination with the corresponding number of places. In addition, qualified civil servants in the middle legal service can also be admitted to training (share in 2016 nationwide: 6%). Rechtspfleger complete a three-year dual course of study at a state university of applied sciences with practical training at courts and public prosecutors. You have the status of a civil servant on revocation and use the title of Rechtspflegeranwärter . Middle-class promotion officials retain their probationary or lifetime status.
The training takes place, partly for the recruiting authorities of different federal states at eight universities of applied sciences:
- University of Applied Sciences for the Administration of Justice North Rhine-Westphalia in Bad Münstereifel
- University for public service in Bavaria , Faculty of Justice, in Starnberg
- Fachhochschule Schwetzingen - University of Justice in Schwetzingen (training for Baden-Württemberg, Rhineland-Palatinate and Saarland)
- University of Applied Sciences for Public Administration and Justice in Güstrow (training for Mecklenburg-Western Pomerania)
- North German College of Justice in Hildesheim (training for Schleswig-Holstein, Hamburg, Bremen and Lower Saxony)
- Berlin University of Economics and Law (training for Berlin , Brandenburg and Saxony-Anhalt)
- Meißen University of Applied Sciences, Department of Justice (training for Saxony)
- Hessian University of Finance and Justice , Department of Justice, in Rotenburg an der Fulda (training for Hesse and Thuringia)
The course ends with the Rechtspfleger examination. Passing this state examination is a prerequisite for an appropriate employment as a civil servant and for the award of the academic degree of Diplom-Rechtspfleger / in (FH) ( Dipl.-Rpfl. (FH) ). The exam consists of six to ten five-hour exams. In some federal states, the examination also includes the preparation of a scientific diploma thesis; only in Hesse and Mecklenburg-Western Pomerania do up to 30% of the work done during the course contribute to the overall grade. After successfully completing the examination, there is usually no guarantee of acceptance into the civil service, only the promotion officials from the middle service are entitled to continued employment within the framework of their previous civil service, but receive the diploma not as an academic degree, but only as a state designation. The national average for failure rate in 2017 was 9.42%.
An adaptation of the legal clerk training to the Bologna process with a bachelor's degree instead of a diploma degree has so far not been carried out in view of the particularities of German civil service law.
The official title in the entrance office is judicial inspector ( salary group A 9 ). Furthermore, the career group of the upper service can be passed through, in addition, the promotion to the higher service is possible. In Bavaria in 2011 the races were the entry into force of a public service law reform abolished and changed the service names: In the now listed in the "Third qualification level" career starting as a justice inspector , newly promoted to the "fourth qualification level" are now Rechtspflegerat , Rechtspflegeoberrat , justice director called etc, also if they are no longer Rechtspfleger in the sense of the RpflG, but exclusively perform tasks in the area of administration or information and data processing. In addition to these cost-neutral changes, the initial salary was reduced to A8 by 2013 in the same year.
German Democratic Republic
The profession of Rechtspfleger did not exist in the GDR . A large part of his tasks, especially in the voluntary jurisdiction, was performed partly by administrative authorities and partly by state notaries. In addition to judges and public prosecutors, court secretaries were also active in the judiciary. Their tasks were in some cases comparable to those performed by the judicial officers , cost officers, clerks and bailiffs in West Germany.
According to the Unification Treaty, court secretaries were able to perform judicial duties in areas that had been or could be assigned to them under GDR law. According to state law, court secretaries could also be entrusted with further legal clerk tasks if they were able to carry out these tasks due to further training measures. According to § 34a RPflG, these so-called legal clerks were able to acquire the position of judicial clerk after successful further training and were allowed to be entrusted with all legal clerk tasks. Legal clerks may perform the duties of a judicial clerk in the subject areas assigned to them in accordance with Perceive § 34 RPflG indefinitely and also be entrusted with legal clerk tasks in other subject areas, if they are suitable due to further training measures.
In this respect, divisional legal clerks and legal clerks trained in accordance with the career regulations in § 2 RPflG may be comparable. However, full equality has not taken place and, according to the will of the legislature, should not take place either. Legal clerks therefore differ from judicial clerks who meet the requirements of § 2 RPflG and who by law are assigned all of the tasks specified in § 3 RPflG in that they are only allowed to work “in the subject areas assigned to them”; further tasks can only be assigned to them if they have completed further training in “this subject”. Because of this restricted usability, they also differ from those divisional legal clerks who have completed additional training at a technical college and have thus acquired the "position of legal clerk" (Section 34a (2) sentence 1 RPflG).
In Austria, legal clerks are non-judicial court officials who, as federal organs, are entrusted with the independent handling of judicial affairs on the basis of the provisions of Art. 87a B-VG and the Rechtspflegergesetz. They take decisions and take care of the judicial agendas assigned to them on their own responsibility and are only bound by the instructions of the judge who is responsible for the division of business when carrying out their work. However, the right of the competent judge to give instructions, as regulated in the Rechtspflegergesetz, has no significance in judicial practice.
Areas of responsibility
The legal clerk can be appointed for one or more of the following areas:
- Civil litigation , execution and bankruptcy matters ,
- Exit shaft - Kindschafts- and guardianship matters and matters of the court Erlages and confiscation judicial Verwahrnisse,
- Land register and ship register matters and
- Matters of the commercial register ( commercial register ).
Typical procedures carried out by judicial officers are:
- Dunning procedure
- Execution proceedings (on the movable property, compulsory creation of a lien and as security)
- Personal bankruptcy proceedings (for assets not expected to exceed € 50,000)
- Probate proceedings (for assets of probably not more than € 150,000)
- Parental and guardianship proceedings (partially)
- Land register procedure (there are practically no activities reserved for judges)
- Commercial register procedure (partially)
On the basis of Art. 135a B-VG, the administration of individual, precisely defined types of business can be delegated to administrative courts by law . Currently, however, only the law on the Vienna Administrative Court ( Section 2 (1), Section 4 , Section 25 VGWG) provides for the use of judicial officers. The President of the Federal Administrative Court is authorized to appoint judicial officers as required ( Section 13 of the Federal Administrative Court Act). The legal remedy of a presentation to the competent judge against the findings and decisions of a judicial officer can be filed within two weeks ( Section 54 of the Administrative Court Procedure Act).
Court clerks who meet the requirements for appointment to a post in employment group B (senior service), who are Austrian citizens and who have successfully passed the court office examination and the examination for specialist service at court can be admitted to the judicial officer.
The training of the court clerk as a judicial officer includes the use in one or more courts with the preparation of errands in the desired field of work, participation in the basic course as well as the course for the desired field of work (field of work course) and the successful completion of the examination on the subject areas of the basic course as well the examination of the field of work.
The duration of the training is three years. The field of work course and the examination on the field of work can still be completed within one year of the end of the training period.
- for Germany:
- Egon Arnold, Klaus Meyer-Stolte and others: Rechtspflegergesetz. 7th edition. Verlag Gieseking, Bielefeld 2009, ISBN 978-3-7694-1052-5 .
- Peter Bassenge, Herbert Roth and others: FamFG / RPflG: Law on the procedure in family matters and in matters of voluntary jurisdiction. Rechtspflegergesetz. Commentary (= Heidelberg Comments ). 12th edition. Verlag CF Müller, Heidelberg 2009, ISBN 978-3-8114-3607-7 .
- for Austria:
- Manfred Buric, Johannes Etz, Michael Lackenberger, Walter Szöky (Hrsgb): Commentary on the legal care law , Weka-Verlag, Vienna a. a. 2007, ISBN 978-3-7018-4465-4 .
- European Judicial Atlas , ec.europa.eu
- Association of German Rechtspfleger
- Association of qualified legal administrators in Austria - VDRÖ
- ↑ Archived copy ( Memento of the original from April 2, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ http://www.olg-frankfurt.justiz.hessen.de/irj/OLG_Frankfurt_am_Main_Internet?uid=4cb20de8-ec17-8411-aeb6-df144e9169fc
- ↑ http://www.ag-velbert.nrw.de/behoerde/gerichtsvorstellung/Mitarbeiter_innen/index.php
- ^ BfJ : Personnel
- ↑ https://www.bundesjustizamt.de/DE/Themen/Buergerdienste/Justizstatistik/Rechtspfleger/Pruefung_node.html
- ↑ Appendix 2 to Art. 22 II 2 Bavarian Salary Act
- ↑ In accordance with Art. 15 of the Act on the Approval of the Budget of the Free State of Bavaria for the 2011 and 2012 budget years, civil servants who are entitled to a basic salary from an office of salary regulation A for the first time after April 30, 2011, notwithstanding Art. 20 Para. 1 Sentence 1 BayBesG for a maximum of 18 months, at the latest until April 30, 2013, the basic salary from the next lower salary group
- ↑ cf. Manual for notaries of the German Democratic Republic. Berlin, Ministry of Justice 1982.
- ↑ Materials on German Unity and the Structure in the New Federal States. Information from the Federal Government, BT-Drs. 12/6854 of February 8, 1992, p. 51.
- ↑ cf. for example Karl-Heinz Beyer, Cornelius Bortfeldt, Gert Chalupecky: Handbook for Secretaries of the Courts of the German Democratic Republic . Berlin, Ministry of Justice 1977.
- ↑ Annex I, Chapter III, Subject A, Section III, No. 3 of the Unification Treaty.
- ↑ Saxon Higher Administrative Court, order of March 26, 2020 - 2 B 37/20 marginal no. 14 ff.