Legal process

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Legal action is called access to jurisdiction , usually in the narrower sense of access to the jurisdiction of a specific branch of the court. The most common phrase is to “call” or “take legal action” to a court , provided that it is “open”, that is, the right branch of jurisdiction has been chosen. A question of the detailed design of the legal process is whether several instances (legal processes) are opened within the respective branch of the court .

Court organization in Germany (macro level)


Historically, the legal process emerged as the opposite of the "administrative path". It means access to independent - "ordinary" - courts ( ordinary jurisdiction ) and until the 19th century was only available in criminal and civil matters . Countermeasures of management you had against it before instructions related administrative procedure ( administration of justice ). Whether the (proper) legal process was open was therefore synonymous with the question of whether courts would decide at all. It was therefore of great importance and fiercely contested whether the courts themselves decide on their jurisdiction or whether it is up to the administration or the government (see conflict of competencies ).

When the demand for legal protection also became louder in administrative matters ( rule of law ), various options were available. Most of the lawyers dealing with the topic wanted to assign administrative matters to the civil courts (such as Otto Bähr or Lorenz von Stein ). Others called for their own, independent administrative jurisdiction ( Rudolf von Gneist ). Only in the Hanseatic cities of Bremen , Hamburg and Lübeck was the ideal of the judicial state realized, in which civil courts could review administrative acts until the 1920s. On the other hand, the administrative judicial state was predominantly advocated; In 1863, Baden was the first federal state to establish an independent administrative jurisdiction (Administrative Court), and others followed. In 1933 only Schaumburg-Lippe was without administrative courts. On the other hand, only special administrative courts existed at the national level.


The Basic Law guarantees access to state courts if subjective rights are impaired. When rights violations by the 'official authority', including the executive branch that follows from Art. 19 , para. 4 of the Constitution ( legal guarantee ) in rights violations by private from the judicial guarantee claim , consisting of the rule of law and fundamental rights is derived. The general clauses of § 13 GVG on the one hand and § 40 VwGO on the other hand ensure that a court is also responsible for each case. Only in very exceptional cases is legal action not open (for example under Article 19 (4) sentence 3 of the Basic Law for certain interventions in telecommunications secrecy; see Article 10 of the Act ).

The criminal and civil courts are still referred to as ordinary courts, although under the Basic Law the administrative courts are also staffed with independent, "ordinary" judges. As a rule, whether the ordinary legal process is open no longer decides whether courts will decide at all, but only the question of which court branch.

However, effective access to judicial protection is also limited by the establishment and equipment of the courts. In this context the “scarce resource law” is often used . The human resource planning for jurisdictions and Staatsanwaltschafte is currently treated by the PEBB§Y performed system. The globalization is not without consequences for access to justice: In the increasingly also cross-border element having litigation it is increasingly difficult for the state to ensure effective legal protection in these cases. Therefore, in 2010 a law proposal from the states of North Rhine-Westphalia and Hamburg to introduce chambers for international commercial matters was introduced to the Federal Council . The aim of the draft law, which is currently being discussed in the Bundestag , is to improve effective legal protection in cross-border trade disputes.


The jurisdiction in Germany is divided into five branches. these are

The constitutional courts of the federal states and the federal government, which also exist, are outside of this classification, as they are only responsible for cases that concern compliance with constitutional law . Access to the constitutional courts is usually subsidiary (subordinate), since usually the legal process - i.e. the course to the specialized courts - must first be exhausted ( legal process exhaustion ).

The delimitation of jurisdiction takes place via a general assignment of legal matter to a branch of the court (e.g. administrative law), an intrusive special assignment or an urging special assignment. Imposing special assignment means that a specific legal matter is assigned to a specific jurisdiction, even if this does not result from the general assignment. Conversely, the exclusive allocation excludes a specific branch of the court.

The assignment to a specific branch of the court is only of minor importance today. Whereas in the past an action before the wrong court was generally rejected as inadmissible , today a referral is usually made. However, the costs of the referral must be borne by the plaintiff in any case, even if he is successful in the matter.

"The judges' decision is final"

The opening of the legal process is constitutionally and legally required. The parties can agree otherwise and exclude access to state courts by entering into an arbitration agreement . The occasional reference to “Legal recourse is final”, however, only means that the person using this wording rejects any legal responsibility or does not recognize a claim . However, this is only a declaratory note that cannot exclude access to the courts in one matter.

Occasionally, this notice is also part of dubious business practices with which companies try to prevent consumers from pursuing their interests through legal proceedings.

In the case of games and bets, the background can also be Section 762 BGB or Art. 513 OR . According to this, winnings from games and betting are so-called imperfect liabilities. There is no entitlement to winnings from these (gaming or betting) contracts. So you cannot be sued either. With this reference, the organizer draws attention to this legal situation. Something different applies to state-approved lotteries (lottery, casino), cf. Section 763 BGB. Such profits are also legally enforceable. This must be distinguished from competitions ( § 661 BGB) as a special form of advertising§ 657 ff. BGB). Here you have to apply for the prize. The prize is awarded to those who perform the "best performance". Except in the case of gross procedural errors, the award of the prize is not subject to judicial review in such cases in accordance with Section 661 of the German Civil Code.

Web links

Individual evidence

  1. BR-Drs. 42/10 (PDF; 203 kB).
  2. BT-Drs. 17/2163 (PDF; 273 kB).
  3. ^ Hermann Hoffmann, Chambers for International Trade Matters, Baden-Baden 2011.