The lawyer Karl August Bettermann understood jurisprudence as "recognize for law, decide what is legal". According to this, every state decision on legal disputes by a person who is not involved in the subject of the dispute is to be regarded as jurisdiction. The judicial state does not act ex officio , but only at the request of one of the parties involved ( Latin ne eat iudex ex officio , "where no plaintiff, there no judge"). The disregard of existing legal norms triggers court proceedings if a plaintiff and defendant start a legal dispute in private law or if an indictment of criminal liability is made in criminal law . From a formal and legal point of view , the resulting judgments form the core of the case law. These judgments, in turn, change substantive law .
The judicial activity of a judge is not limited to the subsumption of a specific factual situation under a certain legal principle , but rather to a concretisation of relevant but mostly abstract legal norms related to the subject of the decision (" matter ").
Case law on the term
The courts should have the best knowledge of the concept of jurisprudence from their own work . Because jurisprudence is the effort of the courts to enforce the rules of a society . In January 1924, the Reichsgericht (RG) understood the whole of the tasks assigned to the courts to be under jurisdiction. This definition later proved to be too broad, so that the Federal Constitutional Court (BVerfG) initially introduced a restrictive substantive definition in June 1967. The concept of judicial power is essentially determined by the concrete factual activity. It is a matter of case law in a material sense when certain sovereign powers have already been assigned to judges by the constitution or when the matter is a traditional core area of case law. In December 2000, the Federal Constitutional Court added a functional definition to this material definition: "From a functional point of view, it is a case law if the legislature provides for a judicial procedure for sovereign dispute resolution and gives the decisions to be made there a legal effect that only independent courts can bring about". The Basic Law (GG) understands jurisprudence materially as the binding decision of individual cases by way of the application of the law in a legally regulated procedure by independent, impartial, independent judges endowed with state power ( , Paragraph 1, Basic Law). They generate judicial law that does not come from the legislature , but from the judiciary .
The judicial power (judicial) is to of the Basic Law judges entrusted. Judges are independent and only subject to the law ( (1) GG, GVG , DRiG ). The judge's task is the judiciary, which in turn is bound by law and justice ( 20.3 of the Basic Law). The judge's independence leaves the judge free to take into account the previous case law of other courts in the context of subsumption on a particular case or not. Even “judgments of the highest court are not statutory law and do not create a comparable legal binding”, ruled the Federal Constitutional Court. Because by deviating from an earlier legal view, the judge does not fundamentally violate Article 20.3 of the Basic Law. Nevertheless, judges observe the case law applicable to a case, especially of the highest courts . In Germany , the Federal Constitutional Court ( and GG), the constitutional courts of the states and the courts of the Federation and the Laender in the various branches of jurisdiction ( jurisdictions ) speak according to GG law.
What is and what is not part of jurisprudence is not always clearly regulated by legal norms. Not every judicial or judicial activity is jurisprudence. From the point of view of organizational law, one cannot speak of the exercise of judicial power if a state body is made up of independent judges within the meaning of Art. 92 ff. GG. There are also areas of law whose assignment to case law is controversial. In the past , the tax offices had the power to impose penalties for all tax offenses. To this end, the Federal Constitutional Court ruled in June 1967 that the imposition of criminal sentences constituted the exercise of judicial power within the meaning of Basic Law. According to this rule, only judges can impose criminal sentences. The then regulations of the Reich Tax Code (RAO), which empowered the tax authorities to prosecute tax offenses, are therefore incompatible with the Basic Law. The earlier penal powers and penalties of the tax offices (§§ 410, 412 para. 1 RAO 1919; §§ 445, 447 para. 1 RAO 1931) and thus also the submission negotiations before them violated the complainant's right to the legal judge. Also administrative acts are no jurisdiction because the subsequent judicial authority is a party. The tasks that do not belong to the jurisdiction are often called “functional jurisdiction” or, more recently, “legal care”.
In any case, civil justice and criminal justice belong to the traditional core area of jurisdiction . Even if the exact delimitation may be difficult in individual cases, it cannot be doubted that the constitutional authority has assigned the traditional core areas of jurisdiction to the judiciary, even if they are not specifically listed in the Basic Law.
Effects of case law
It is the task of case law to resolve legal uncertainty through legal force . Jurisprudence takes place through judgments that change substantive law. The case law related to the individual case can lead to a confusing case history in a legal area. So - partially contradicting - judgments by local courts, for example in tenancy law, contribute to legal uncertainty when it comes to rent reduction . Jurisprudence is often associated with further legal training , with which regulatory loopholes can be closed and non-exhaustive legal norms can be further developed.
Common attributes related to case law
In jurisprudence , jurisprudence is often given three attributes, namely the supreme court jurisprudence pronounced by the higher-level courts , which often represents the same legal opinion on a specific legal issue through permanent jurisdiction (see prevailing opinion ), as well as through stable and consistent jurisdiction.
Consolidated case law
A lawyer understands established case law to be the established view of the judges in the relevant branch of the court , which cannot yet be classified as established case law.
A lawsuit that does not comply with established case law, but is based on the contrary opinion, will therefore usually be unsuccessful. For reasons of liability , a lawyer will usually not bring such a lawsuit without first advising his client of the risks associated with the lawsuit. Basically, however, only the view of those judges who are responsible in the last instance is decisive , as their judgments can no longer be challenged with legal remedies . However , it depends on the opinion of the lower courts if, in the case of low amounts in dispute , it can not be assumed that an appeal will be lodged or that this is not possible due to the costs .
The BGH changes its established case law relatively rarely. For example, donations from parents to their married children-in-law could not be reclaimed until 2010 because, according to the previous case law of the Federal Court of Justice, they had to be settled within the framework of the profit equalization between the spouses in the event of divorce . As a result, recourse by the parents-in-law was ruled out by established supreme court rulings. In a judgment of February 3, 2010, however, the BGH abandoned its established case law and decided that after the divorce of the children, parents-in-law can claim back the amounts paid to the child-in-law during the marriage because the business basis of the gift is the partnership between daughter and son-in-law and this basis no longer exists after the breakdown of the marriage.
Constant case law
Permanent jurisprudence (short st. Rspr. Or stand. Rspr. ) Is a term coined by the Federal Court of Justice (BGH), which is intended in particular to indicate to the legal professional world that the highest German civil instance has consistently represented the same legal opinion on a certain legal issue. However, it is uncertain whether the BGH will continue to adhere to this constant legal assessment in the future. Because by deviating from an earlier legal view, the judge does not fundamentally violate Article 20.3 of the Basic Law. “Judicial decisions that affect the validity of a legal transaction, by their very nature, have an effect on a situation that was in the past and has not yet been concluded. This so-called bogus retroactive effect is, as with legal regulations, generally permissible. "
However, barriers result from the rule of law principle of legal security , which primarily means protection of confidence for the citizen. If the affected party could count on the continued validity of the previous legal situation and deserves this trust when weighing the opposing interests of the parties involved and the interests of the general public, the retroactive effect intervenes in legally protected positions.
Because of the trend-setting importance that the highest court decisions have for the legal reality, a lawyer must always orientate himself on this case law when performing a mandate. As a rule, he can rely on their continued existence. This applies in particular in cases of established supreme court jurisprudence, because such jurisdiction is usually deviated from only in special exceptional cases. Conflicting judicature by courts of first instance and differing voices in the literature then regularly do not oblige the lawyer to take the differing opinion into account when performing his task.
However, no one can invoke a fact of trust that exceptionally limits the consequences associated with a change in the highest court rulings to an effect for the future. If the BGH deviates from its previous consistent case law, it clarifies this in its judgments with the addition that it "expressly no longer adheres to the previous view ...". So the BGH - even in spite of strong criticism of the literature - up to 1992 adhered to its case law on the liability of wealthy and financially overwhelmed guarantors for the debts of third parties and justified this with the warning function of the legally prescribed written form (formal requirement). A change in this jurisprudence that was favorable to the surety only began to be recognized by the public after the decision of the Federal Constitutional Court of October 19, 1993. This called on the civil courts to give greater weight to the immorality of such guarantees. The Constitutional Court only complained about a constitutional error of a general nature in the legal subsumption incumbent on the BGH in the specific case and pointed out that the courts would have to clarify in such cases whether the contractual regulation was a consequence of structurally unequal bargaining power, "and possibly within the framework of the Intervene to correct general clauses of the applicable civil law. How they have to proceed and what result they have to reach is primarily a question of simple law, to which the Constitution leaves a wide margin ”. As a result, the BGH rulings were completely reversed.
If, on the other hand, judges at a supreme federal court change their view even though there is no case that matters, they often include an obiter dictum ( German "incidentally said" ) in their judgment, a legal opinion expressed by a court that describes the decision made does not wear, but which was only added when necessary.
Internationally, there is a separation of powers in the EU member states , so that independent jurisdiction is left to the courts everywhere. In the European Union , case law is institutionally exercised by the European Court of Justice (ECJ), the Court of First Instance of the European Communities (ECJ) and the Court for the Civil Service of the European Union. In the English-speaking world casuistry plays ( English case law in the) application of the law by the courts a more important role than existing laws. Courts are based more on the existing case law and rarely refer to the law as a source of law when subsuming .
- Jurisprudence, more rarely: jurisprudence, the. Duden , 2018, accessed April 7, 2019 .
- Karl August Bettermann : Jurisprudence / judicial authority , in: Josef Isensee / Paul Kirchhof : Handbuch des Staatsrechts der Bundes Republik Deutschland , Volume III, Heidelberg 1996, Rn. 38.
- Karl August Bettermann: Jurisprudence / judicial power , in: Josef Isensee / Paul Kirchhof: Handbuch des Staatsrechts , Vol. III, 1996, Rn. 43.
- Karl August Bettermann: Jurisprudence / judicial power , in: Josef Isensee / Paul Kirchhof: Handbuch des Staatsrechts , Vol. III, 1996, Rn. 35.
- BVerfGE 34, 269 287 f.
- RG , decision of January 25, 1924, Az. III 882/22; RGZ 107, 320, 323 (Dampfer-Compagnie case)
- BVerfG, judgment of June 6, 1967, Az. 2 BvR 375, 53/60 and 18/65; BVerfGE 22, 49 p. 76 f.
- BVerfG, judgment of February 8, 2001, Az. 2 BvF 1/00, BVerfGE 103, 111 - Hesse election examination.
- BVerfGE 38, 386 396.
- BVerfGE 84, 212 .
- BVerfG, judgment of June 6, 1967, Az. 2 BvR 375/60 ( full text ).
- Josef Isensee / Paul Kirchhof (eds.), Handbuch des Staatsrechts der Bundes Republik Deutschland , Volume 5, 2007, p. 667 .
- Helmuth Schulze-Fielitz, jurisprudence , in: Horst Dreier (Ed.), Commentary on the Basic Law, Volume 3 (Art. 83–146) , 2000, Art. 92 Rn. 42
- BGH, judgment of February 3, 2010, Az. XII ZR 189/06 ( full text ).
- BVerfGE 84, 212
- BVerfGE 74, 129 155.
- BVerfGE 74, 129 , 156.
- BGH, judgment of January 18, 1996, Az. IX ZR 69/95 ( full text ) = WM 1996, 436.
- BGH WM 1993, 2130
- BGH WM 1983, 657
- So still BGH, judgment of January 16, 1992, Az. IX ZR 113/91 ( full text ) = ZIP 1992, 233.
- BVerfGE 89, 214 .
- BVerfGE 89, 214 234.