Rest (right)

This article deals with rest in a legal sense. For more meanings of rest or rest, see the disambiguation page rest .

This article only presents the situation in Germany . Help us to describe the situation in other countries.

In legal jargon , rest is understood to mean that a legal claim or other legal relationship continues to exist, but cannot be asserted or exercised temporarily. The legal relationship remains in place in such cases, but no subjective rights and obligations are derived from it. The term is also used in procedural law: If the proceedings are suspended, administrative or judicial proceedings are no longer pursued, but rather suspended. After the reasons for the suspension no longer exist, the legal relationship can be revived or the proceedings can be resumed (continued).

The conditions under which a claim or a procedure can rest are not generally regulated; they are variously determined in the law . Apart from these cases, it is at the discretion of the parties whether or not to bring a claim against another. An originally asserted claim can also be dropped, for example by discontinuing a lawsuit . Often, however, in such cases or instead of resting in the interests of legal certainty and legal peace, a binding and final clarification of a legal conflict will be brought about in order to settle it, be it by way of an agreement or an official or judicial decision.

Germany

Family law

In family law , parental custody can rest for various reasons. The law cites as a legal reason the incapacity or the limitation of the legal capacity of a parent as well as actual reasons, as far as the family court determines this. Even after a confidential birth, the mother's parental care is suspended. In these cases, parental custody can be revived if the obstacle that led to its suspension no longer applies ( §§ 1673–1675 BGB ).

Employment Law

The general opinion is that the employment relationship is suspended, particularly during parental leave, but also in the event of a legitimate strike . If the employee is doing military or community service , § 1  ArbPlSchG, § 78  ZDG expressly order the suspension of the employment relationship. During this time, the main obligations of the service contract - the performance of services against payment of wages - do not exist.

Social law

Entitlements to social benefits can also be suspended. In the case of cash benefits, this is usually done in order to avoid benefits if the person concerned is otherwise cared for. For example, the entitlement to sick pay is suspended as long as the wages are paid to the person concerned or as long as the person concerned receives certain other benefits during the incapacity for work , Section 49 of the  Social Code Book V. While a claim is suspended, the so-called basic right to the benefit is retained. The entitlement continues to exist, but the benefit can no longer be claimed while it is inactive. Further cases of rest in health insurance law are  regulated in § 16 SGB ​​V. It should be emphasized that the entitlement to benefits is suspended in accordance with Section 16 (3a) SGB V in the event of payment arrears .

Administrative procedural law and judicial procedure

→ Main article : Suspending the proceedings

From the rest of the process is when a administrative or judicial proceedings on request or on its own initiative indefinitely for a certain time or is suspended. It will not be completed as a result, but can be resumed at any time.

Professional law

A doctor whose license to practice medicine is suspended by order or because of waiver ( Section 6 , Section 9 of the Federal Doctors' Ordinance ) is not allowed to practice the medical profession.

A lawyer cannot apply for admission to the bar to be “suspended”. However, he can be exempted from the law firm's obligation. He then remains a member of the bar association responsible for him , and the obligations to pay the related membership fee as well as a minimum contribution to the professional pension scheme, for further training and to maintain professional liability insurance remain in place, but he no longer needs to practice his profession temporarily ( § 27 , § 29 BRAO ).

Individual evidence

1. ^ Dieter Schwab: Family law . In: Grundrisse des Rechts . 26th, revised edition. CH Beck, Munich, ISBN 978-3-406-72365-0 , pp. 399 f ., § 76 II .
2. ↑ BAG FamRZ 1995, 1572.
3. ↑ BAG NZA 2007, 573.
4. ↑ Helmar Bley, Ralf Kreikebohm, Andreas Marschner: Social Law (=  legal learning books . No. 7 ). 8th, revised edition. Luchterhand, Neuwied and Kriftel 2001, ISBN 978-3-472-04778-0 , p. 58 , 122 .
5. ^ German Bundestag (ed.): Suspension of benefits in statutory health insurance if contributions are not paid . Scientific Services. Elaboration WD 9–3000–023 / 15. Status: May 12, 2014. Berlin. 2016.