Community arbitration

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Official sign of an arbitration office in North Rhine-Westphalia

The municipal arbitration system in Germany is used to settle less significant criminal and civil matters. The institutions in question are called arbitration offices or - in the eastern federal states - arbitration boards and generally act as settlement authorities in terms of criminal law and as quality offices in terms of the code of civil procedure . The voluntary arbitrators are referred to as arbitrators or - in Saxony - as judges of the peace , the procedure as arbitration .

Etymologically, the formations with arbitrary go back to the verb divide , meaning ' separate '. Objectively, communal arbitration is to be distinguished from private arbitration or arbitration proceedings , as well as from private arbitration boards and the state judge .

Baden-Württemberg, Bavaria and Bremen have no arbitration boards. Here the municipalities (Baden-Württemberg, Bavaria) or atonement officers at the local courts (Bremen) act as settlement authorities according to the Code of Criminal Procedure. In Bavaria, the notaries and certain lawyers are also quality agencies within the meaning of the Code of Civil Procedure.

The Hessian local courts are also municipal institutions, but their sphere of activity is voluntary jurisdiction .

history

When the European territories were reorganized after the Congress of Vienna in 1814/15, the institute of the justice of the peace remained in the former French- occupied German areas on the left bank of the Rhine , while the Kingdom of Prussia (with the exception of Rhenish Prussia ) introduced the institute of the arbitrator in 1827 . Whose job it was, with small private law disputes and defamation before a transition to the ordinary courts an atonement attempt between the contending parties to undertake.

The example of Prussia was followed by other German states who appointed conciliation and peace judges, so that this institute was initially included in the German Code of Criminal Procedure of 1877 as a settlement authority for private insults . With the Prussian Arbitration Rules of 1879, it was expanded to include all of Prussia, and the range of tasks was broadened to include less significant civil litigation, which in turn was joined by other German countries. In Prussia, the number of criminal proceedings between 1880 and 1924 was around 200,000 annually; in civil litigation, it fell from around 90,000 to below 6,000 over the same period.

With the Emminger amendment in 1924, a compulsory conciliatory procedure was temporarily introduced into the code of civil procedure ( Section 495a ZPO ; repealed 1944, finally 1950) and the settlement concluded as a basis for enforcement ( Section 794 ZPO). In the new federal states, the arbitration commissions of the GDR were replaced by arbitrators in 1990 due to the law on arbitration boards in the municipalities still passed by the People's Chamber ; in Saxony they were named justices of the peace in 1999, as in 1879.

Section 15a of the Introductory Act to the Code of Civil Procedure has enabled the state legislature since 2000 to provide for mandatory arbitration in certain cases before a state-established or recognized conciliation body.

Legal bases

The federal government is only entitled to regulate the voluntary out-of-court dispute settlement insofar as an out-of-court preliminary procedure is created as a prerequisite for judicial proceedings ( Article 74 (1) No. 1 GG ; Section 380 StPO and Section 15a EGZPO ); Otherwise, the regulatory authority rests with the federal states. Arbitration offices or offices exist in 12 countries; 10 countries have made use of the authorization to introduce a compulsory arbitration procedure in civil disputes.

country Criminal procedural
settlement authority
(Section 380 StPO)
civil judicial
settlement body
(see. § 204 BGB)

Compulsory settlement attempt?
(§ 15a EGZPO)
Recognition of
alternative approval bodies?
(cf. § 794 ZPO)
BWBW BW Municipality (§ 37 AGGVG ) - - Section 22 AGGVG
BYBY BY Municipality ( Art. 49 AGGVG ) Approval office (especially notary,
lawyer; BaySchlG )
Art. 1 BaySchlG Art. 22 AGGVG
BEBE BE Arbitration Office ( BlnSchAG ) - -
BBBB BB Arbitration Board ( SchG , SchG-VV ) BbgSchlG BbgGüteStG
HBHB HB Atonement officers of the district court
( SühneVfV )
- - -
HHHH HH Public legal information and comparison body
( ÖRA Act , ÖRA Ordinance )
- -
HEHE HE Arbitration Office ( HSchAG ) § 1 SchlichtG HE § 6 SchlichtG HE
MVMV MV Arbitration Board ( SchStG MV ) § 34a SchStG MV -
NINI NI Arbitration Office ( NSchÄG ) NSchlG Section 97 NJG
NWNW NW Arbitration Office ( SchAG NRW ) Section 53 JustG NRW 45 JustG NRW
RPRP RP Arbitration Office ( SchO ) LSchlG -
SLSL SL Arbitrator ( SSchO ) Section 37a AGJusG Section 37d AGJusG
SNSN SN Arbitration Board ( SächsSchiedsGütStG ) - Section 55 SächsSchiedsGütStG
STST ST Arbitration Board ( SchStG ) Section 34a SchStG Section 40 SchStG
SHSH SH Arbitration Office ( SchO ) § 1 LSchliG Section 6 LSchliG
THTH TH Arbitration Board ( ThürSchStG ) - -

Arbitration

The office of arbitrator is a temporary honorary position with the task of mediating between the disputing parties. Arbitrators do not decide, but bring about a legal settlement , i.e. a contract between the agreeing parties, from which enforcement can also be carried out directly if necessary ( Section 794 (1) No. 1 ZPO).

The civil matters for which arbitration according to § 15a EGZPO can be made mandatory

  • Property disputes, the value of which does not exceed the sum of 750 euros
  • Disputes about claims from neighboring law according to §§ 906, 910, 911, 923 BGB and Art. 124 EGBGB (unless it is a matter of influences from a commercial operation)
  • Disputes about claims for violation of personal honor (unless committed in the press or on the radio)
  • Disputes about claims according to Section 3 of the AGG .

In other civil matters, too, the arbitration office can be called upon, depending on national law. The application suspends the statute of limitations ( Section 204 (1) No. 4 BGB ).

In criminal cases, the arbitration is in private prosecution offenses like trespassing , defamation , violation of the secrecy of correspondence , simple and negligent bodily harm , threats , property damage and drawee to such offense drunken stupor (mandatory § 380 Code of Criminal Procedure), if no public interest of the public prosecutor in prosecution.

The total number of proceedings in 1980 for the old federal states was less than 1,000 civil and around 28,500 criminal cases, for the social courts of the GDR 48,600 civil cases (mostly working cases before the conflict commissions ) and 29,000 criminal cases. 35 years later (2015), the arbitration offices and agencies involved over 12,600 civil and over 2,100 criminal cases. In about 80% of the cases, both parties appeared before the arbitrator; Over 50% of civil cases and over 40% of criminal cases were settled by settlement. In addition, there are around 20,000 so-called “door and pivot cases” (claims made without a protocol).

Austria

For the legal situation in Austria, see municipal agency .

Switzerland

For information on the legal situation in Switzerland, see the arbitration authority .

literature

  • Theodor Christian Fachtmann : The extrajudicial atonement in Northern Germany by justice of the peace, arbitrators and shop stewards . Rackhorst, Osnabrück 1849 ( full text in the Google book search).
  • Paul Florschütz : The Arbitration Rules of March 29, 1879 , 15 editions
  • Meyers Konversationslexikon , Verlag des Bibliografisches Institut, 4th edition, Vol. 14, Leipzig 1890, pp. 443  f .; 6th edition, Vol. 17, Leipzig 1909, p. 752
  • Carl Creifelds, legal dictionary , C. H. Beck'sche Verlagsbuchhandlung, 15th edition, Munich 1999, p. 1124 f, ISBN 3-406-44300-1
  • Hans-Andreas Schönfeldt: From Arbitrator to Arbitration Commission . Enforcement of norms by territorial social courts in the GDR. Klostermann, Frankfurt am Main 2002, ISBN 3-465-03176-8 ( limited preview in the Google book search).
  • Bele Carolin Peters: The concept of goodness in German civil procedure law . A historical-sociological study of the concept of quality in civil procedural law since 1879. Jena 2004 ( db-thueringen.de [PDF; 1000 kB ]).
  • BDS : Arbitration Office newspaper (SchAZtg, since 1926; ZDB -ID 1160357-4 )

See also

Web links

Individual evidence

  1. ^ DWDS , Etymological Dictionary of German, divorce
  2. § 37 AGGVG
  3. Art. 49 AGGVG
  4. ^ Ordinance on the atonement procedure in private litigation
  5. Art. 5 BaySchlG
  6. Section 420 of the Code of Criminal Procedure of February 1, 1877; from 1924: § 380 StPO
  7. Arbitration Rules of March 29, 1879
  8. Günther Jahn: Can the use of the arbitrator be revived in the field of civil litigation? , Arbitration court newspaper in 1960, S. 103 / 133 / 167 , 135
  9. Ordinance on the Procedure in Civil Litigation of February 13, 1924 ( RGBl. I p. 135 )
  10. § 5 of the Second War Measures Ordinance of September 27, 1944 ( RGBl. I p. 299 )
  11. Law for the restoration of legal unity in the field of the court constitution, civil administration of justice, criminal proceedings and law on costs of September 12, 1950 ( Federal Law Gazette p. 455 )
  12. see Law on the Social Courts of the German Democratic Republic -GGG- of June 11, 1968 ( Journal of Laws of I No. 11 p. 229) and of March 25, 1982 ( Journal of Laws of I No. 13 p. 269)
  13. ↑ of September 13, 1990 (Journal of Laws of I No. 61 p. 1527); Continued validity according to the Unification Agreement Annex II, Chap. III Sachg. A Section I No. 3 in accordance with Art. 9
  14. Law on arbitration boards in the municipalities of the Free State of Saxony (Saxon Arbitration Law - SächsSchiedsStG) of May 27, 1999 ( SächsGVBl. P. 247 )
  15. Ordinance on the appointment of justices of the peace dated May 16, 1879 ( GVBl. P. 209 )
  16. inserted by the law for the promotion of out-of-court dispute resolution of December 15, 1999 ( Federal Law Gazette I p. 2400 ); Materials: BT-Drs. 14/980 , BT-Drs. 14/1306
  17. Scientific services of the German Bundestag : Legislative competence of the federal government for an arbitration law? ( WD 3 - 3000 - 062/19 )
  18. ECLI : DE: BGH : 2013: 290513BIVAR.VZ.3.12.0 ; Reinhard Greger : Recognized quality bodies
  19. recognized approval body with local authority, cf. BGHZ 123, 337 (1993)
  20. BT-Drs. 11/3967 (1989)
  21. Britta Schubel: History and the present of extrajudicial settlement of criminal matters by voluntary arbitration bodies in the new federal states (1997), pp. 316-319
  22. Arbitration Office newspaper 2017, p. 282