In addition, colloquially - at least in legal circles - it also refers to the legal protection insurance division within the insurance industry or insurance law.
Also for private law disputes, the guarantee of effective legal protection can be derived from the constitution, because the rule of law does not tolerate any legal protection gaps. The scope of such a general legal right to justice lies in the enforcement of the legal system under private law as well as legal recourse against legal acts not covered by Article 19.4 of the Basic Law. In contrast to Article 19.4 of the Basic Law, the general right to legal justice lacks the design as a subjective fundamental right, but it is derived from the rule of law and 2.1 of the Basic Law and can therefore be asserted by way of a constitutional complaint.
The guarantee of state legal protection is inherent in the Basic Law and means a compensation for the state monopoly on the use of force , the prohibition of self-help to the detriment of the citizen and his fundamental peace obligation .
Special constitutional characteristics
- According to right to a legal judge . This includes the guarantee of a legal system of jurisdiction in the area of jurisdiction. Paragraph 1, Sentence 2 of the Basic Law, everyone has a
- According to right to be heard in court . This claim concerns the legal status of the parties involved in legal proceedings that have already been opened and taken. The legal process to the judge himself opens up, however, the specific guarantee of legal protection in Article 19.4 of the Basic Law. Art. 103 (1) GG is functionally related to the legal protection guarantee. This ensures access to the procedure , while Article 103.1 of the Basic Law aims to ensure that the procedure proceeds appropriately . Whoever arrives formally at court should also arrive substantially, i.e. really be heard. If a court violates hearing in the process, it thwarts the ability to effectively bring a violation of the law to court. The hearing complaint has been introduced against acts of judicial power within the framework of case law that are systematically not subject to Article 19, Paragraph 4 of the Basic Law and that are issued in violation of the right to be heard . Paragraph 1 of the Basic Law, everyone has the
- effective legal protection against subjective violations of the law by public authoritiesthat takes place in a reasonable time. Special legal protection guarantees are contained in Paragraph 3, Clause 4 of the BasicLaw for compensationfor expropriation and Clause 3 of the Basic Law for claims for damages from breaches of official duties . (4) of the Basic Law guarantees the citizen a de facto effective and
Limits of the constitutional guarantee
The constitutional obligation to guarantee justice does not exclude private arbitration , nor does it exclude legal recourse to German courts in favor of a foreign jurisdiction in international private law . However, arbitral awards are subject to control by state courts within the framework of ZPO. If legal protection cannot be obtained abroad, for example because the administration of justice has stopped, German courts have emergency or substitute jurisdiction.
The legislature is also entitled to limit legal protection within the framework of the rule of law ( 20.1 GG in conjunction with 28.1 GG). The justification for this restriction is the effectiveness of legal protection, since otherwise the judiciary would no longer be able to act.
However, the restrictions on legal protection must be kept to a minimum. The legal protection that can be obtained through legal action is therefore limited by the admissibility or factual judgment requirements . The aim is to reach not only by an appropriate division of powers between the court premises, the judicial authorities and the armed objects a reasonable workload of the courts, but also by conducting a preliminary (in the field of general and special administrative jurisdiction) or by the mandatory representation by a lawyer , the Limit litigation and resolve it as quickly as possible. In principle, however, the goal of effective legal protection is also impaired by the need to save money in the administration of justice.
The essential limitation of legal protection is the need for legal protection . The plaintiff must not be able to obtain his rights more easily, faster or better (more effectively) or must be able to name plausible reasons for his complaint. Sometimes a complaint is requested.
Before judicial protection can be exercised, out-of-court legal remedies must often be used in advance without the involvement of a court. In the administrative procedure , this is usually the prerequisite for the objection procedure for administrative acts.
In criminal law , restrictions on legal protection are usually subject to stricter requirements, since the citizen is directly threatened by serious encroachments on fundamental rights.
- Hans-Jürgen Papier : Justizgewahranshaft , in: Isensee / Kirchhof (Ed.), Handbuch des Staatsrechts, Volume VIII: Grundrechte: Wirtschaft , verfahren , equality, 3rd edition, 2010, pp. 492–505. Reading sample
- BVerfGE 54, 277 (291)
- BVerfGE 107, 395 (407f.)
- BVerfGE 107, 395 (401)
- Eberhard Schmidt-Aßmann , in: Maunz / Dürig , Art. 19 Para. 4 Rn. 16; Karl August Bettermann : The independence of the courts and the legal judge , in: GR, Bd. III / 2, p. 523 (559); Wilhelm Dütz : Rule of Law Court Protection in Private Law , 1970, p. 95ff .; Klaus Stern : The constitution of the Federal Republic of Germany , Vol. I, 2 1984, § 20 IV 5 b, p. 841; Wolf-Rüdiger Schenke , in: BK (second), Art. 19 Para. 4 marginal no. 77
- BVerfGE 81, 123 
- BVerfG, decision of the plenum of April 30, 2003 - 1 PBvU 1/02 margin no. 40 = BVerfGE 107, 395
- BVerfG, NJW 2006, p. 2613
- Leo Rosenberg, Karl Heinz Schwab, Peter Gottwald: Zivilprozessrecht , 16th ed. 2004, p. 184