Social justice

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The social courts in Germany in matters of social law operates expectant jurisdiction . The social justice system has three levels. The first instance is basically the Social Court (SG), the appeals and complaints body is the Regional Social Court (LSG) in the respective federal states and the appeal and appeal body is the Federal Social Court (BSG) based in Kassel . Social jurisdiction is to be distinguished from labor jurisdiction and administrative jurisdiction . The delimitation is based on the scope of responsibility. There are currently 68 social, 14 regional and one federal social courts.

Court organization in Germany (macro level)

Social justice is one of the five jurisdictions in the Federal Republic of Germany. As such, this independent jurisdiction is a German peculiarity. Outside Germany, the legal process in social law disputes is regulated differently. In France, Italy or the Netherlands, for example, the ordinary courts decide on social administration acts, while in Austria, Belgium or Poland this is done by the specialized courts responsible for labor law disputes. It is repeatedly discussed whether the social, administrative and financial jurisdictions should be merged into one special public law jurisdiction. However, this project is constitutionally questionable, so that, according to the prevailing opinion, such a step only appears feasible after a previous amendment to the Basic Law.

The procedural law of social justice is primarily regulated in the Social Court Act (SGG). In addition, the provisions of the Code of Civil Procedure , the Courts Constitution Act and the Administrative Service Act apply, unless the SGG provides further details.

History of social justice

Social justice is a young branch of the German judiciary. Social courts have only existed in the Federal Republic of Germany since 1954. Before that, dispute settlement in questions of social security law was a task that essentially took place in the administration itself.

In connection with Bismarck's social legislation , which introduced statutory health insurance in 1883 and accident insurance in 1884 , the need arose for the first time for an institution that was appointed to resolve disputes between the insurance company and the insured. Instead of opening up access to the courts, the Accident Insurance Act of 1884 provided for the establishment of an arbitration tribunal, which was organizationally assigned to the individual professional associations as insurance carriers. An independence as the courts and judges in accordance with Art. 97 Basic Law belongs (GG) today was so not guaranteed. The arbitration tribunal was made up of three members: the chairman was a legally qualified state official; He was supported by two representatives each from employers and employees. Basically, this structure can still be found today in the occupation of the bodies of the social courts. The parties involved were entitled to appeal against decisions of the arbitral tribunals, an appeal which the Reich Insurance Office decided on.

With the Reich Insurance Code (RVO), the procedure for legal protection in the areas of health, disability and accident insurance has been standardized. The system was extended to unemployment insurance in 1927 . However, social assistance and welfare matters were not included , as they were not insurance benefits. The RVO provided for a three-stage legal protection system, which was of course implemented within the administration: in the first instance, the decision committees at the insurance offices, in the second instance the arbitration chambers of the higher insurance offices, and in the last instance the decision panels of the state insurance offices or the Reich insurance office could be called upon. A review of this decision by independent courts was not planned.

After the end of the Second World War , the basic legal protection structure of the pre-war period was initially retained. While (general) administrative courts were created in the three western occupation zones for general administrative disputes as early as 1946 , dispute settlement in questions of social insurance initially remained in the area of ​​the insurance carriers or the executive, with the tasks of the Reich Insurance Office being taken over by the Upper Insurance Offices and the State Insurance Offices .

With the entry into force of the Basic Law for the Federal Republic of Germany in 1949, it became apparent that a change in these structures would be essential in the future. On the one hand, the Basic Law expressly ordered a separation of legislative, executive and judicial powers in Article 20 of the Basic Law , so that the double function of the insurance offices, which had previously performed executive and judicial tasks, could not last forever. In Article 96 (1) of the Basic Law (old version), the Basic Law then explicitly spoke of “labor and social justice” and thus made it clear that in future legal disputes in matters of social security law would have to be decided by judicial bodies .

At first it was unclear whether the labor and social justice system should represent a single judicial branch or whether the two areas should be institutionally separated. In the political discussions that took place in the run-up to the implementation of the work mandate given by the Basic Law, politicians from the SPD in particular advocated the demand for a uniform jurisdiction for labor and social security matters. With the adoption of the Social Court Act in 1953 in the German Bundestag , the opposite view ultimately prevailed. The SGG led to the establishment of social courts, regional social courts and the federal social court.

There were no special social courts in the GDR . Procedures under social law were dealt with by the complaint commissions for social insurance at the FDGB ( § 302 f. AGB ) or at the state insurance . After the fall of the Wall in 1992/93, the new federal states created state social courts and social courts.

Jurisdiction

The legal process to social jurisdiction (thus the factual jurisdiction of the courts of social jurisdiction) is conclusively (enumeratively) regulated in Section 51 of the Social Jurisdiction Act (SGG).

The legal route to social justice is therefore not identical with all legal matters of the social code or social law; the assignment is rather the result of historical and legal-political coincidences. For disputes in the field of public law of a non-constitutional nature, i.e. also for all social law matters that are not covered by § 51 SGG, legal recourse to (general) administrative jurisdiction is open ( § 40 VwGO ).

The allocation of legal recourse to social assistance disputes in the broader sense ( SGB ​​II , SGB ​​XII , AsylbLG ) to the social justice system in Section 51 (1) No. 4a and 6a SGG did not take place until January 1, 2005 (the administrative courts were previously responsible). In order to alleviate the (personnel and organizational) overload of the social courts associated with this change in jurisdiction, the SGG gave the federal states the opportunity to exercise social jurisdiction until December 31, 2008 in matters of social welfare according to Section 51 (1) No. 4a and 6a SGG to be exercised by "special judges of the administrative courts and higher administrative courts" ( § 1 sentence 2, §§ 50a to 50d SGG). However, only the Free Hanseatic City of Bremen had made use of this option, which transferred responsibility for matters of social assistance and basic security for job seekers to the Bremen Administrative Court and the Bremen Higher Administrative Court .

The repeated discussion on merging the social and administrative jurisdiction has not led to a final result. The Bundestag has not decided on such moves by the Bundesrat .

Arbitration body

First instance

The ruling bodies of the social court (first instance) are called chambers , each with a professional judge and two honorary judges ( Section 3 SGG). The honorary judges take part in judgments (with or without an oral hearing) as well as in decisions made during the oral hearing. On the other hand, they do not participate in court rulings and decisions outside of the oral hearing, i.e. in particular in decisions in proceedings for interim legal protection ( Section 12 SGG).

The SGG aims to specialize the panel. Section 10 SGG stipulates that specialist chambers for social insurance matters, employment promotion (including the other tasks of the Federal Employment Agency), basic security for jobseekers, social assistance (and the Asylum Seekers Benefits Act), as well as social compensation law and the law for severely disabled persons must be formed at social courts are. For the purpose of further specialization, special chambers can be formed for individual branches of social insurance ( Section 12 (2) sentence 2 SGG).

Second and third instance

The tribunals of the regional and federal social courts are called senates , each of which is made up of three professional judges and two honorary judges. These are determined in the same way as in the social court.

Honorary judges in social justice

The prerequisite for working as an honorary judge in the social justice system is the completion of the 25th year of life in accordance with Section 16 (1) SGG.

The circles from which the honorary judges are to be selected depends on the respective area of ​​law. Details on this are regulated in Section 12 SGG. In matters of social security and the Federal Employment Agency , one of the honorary judges is chosen from the group of employers and one from the group of insured persons , in matters of contract doctor law one each from the groups of health insurance companies and contract doctors and in severely disabled and pension matters one each the group of disabled people and one from the group of “people familiar with the law of the severely disabled”. In matters of social assistance and asylum seekers' rights (which became the responsibility of the social courts in 2005), the honorary judges are determined by the districts, as in administrative jurisdiction.

The honorary judges are compensated according to the Judicial Remuneration and Compensation Act (JVEG). As compensation, honorary judges receive reimbursement of travel expenses, compensation for expenses, reimbursement for other expenses, compensation for missed time, compensation for disadvantages in housekeeping and compensation for loss of earnings. The honorary judge is usually appointed for a period of three years. The appointment takes place after a previous application.

Procedure in main proceedings

The procedure before the courts of social justice is characterized by the principle of official investigation ( § 103 , § 106 SGG). The court has to investigate the facts ex officio, at least insofar as they are disputed. In the first instance, the filing of a lawsuit is usually followed by a written procedure, during which the preparatory investigations take place (obtaining expert opinions, and occasionally also hearing witnesses). The honorary judges are not involved in this stage of the procedure. The investigation is to be carried out so far that the legal dispute can be settled in a single oral hearing. The oral hearing is the norm; In addition, the legal dispute can, under certain conditions, be ended by written decisions or court rulings without prior oral hearing. In contrast to civil proceedings , in social justice it is not the principle of formal truth but that of material truth that shapes the proceedings. However, there is also an objective burden of proof in social court proceedings . Another procedural principle of social justice is that of the plaintiff-friendliness. In addition to being free of charge, there is no compulsory representation, for example. Until the revision of § 92 SGG on April 1, 2008, it was not necessary to submit a specific application , again contrary to the civil and administrative processes .

Normal case: oral hearing

In the oral hearing, the chairman (SG) or reporter (LSG and BSG) usually presents the facts determined according to the files; In appropriate cases, this task can also be delegated to trainee lawyers . Then the factual and legal situation is discussed with the parties involved; if necessary, evidence is taken through the examination of witnesses, questioning of an expert (e.g. an expert on medical questions) or similar. The parties then submit their applications. After a secret discussion, the chairman then announces the judgment ( chair judgment ), which is basically justified orally. The written judgment is then withdrawn; The court has a maximum of five months to do this. Failure to meet this deadline constitutes a reason for a review .

In certain cases, main proceedings are held before the hearing or instead of the hearing. Only the presiding judge takes part in them on the part of the court. They are used to discuss the facts in complicated proceedings. In terms of content, this can involve clarifying the facts by questioning those involved. However, public hearings are often used to explain the factual and legal situation to plaintiffs who have difficulties in the written procedure, to explain them and, if necessary, to end the procedure amicably. Discussion meetings can also be held in proceedings for interim legal protection ( Section 86b SGG).

Written decision

With the consent of the parties involved, the court can decide in full chamber (SG) or Senate (LSG) composition without an oral hearing. Furthermore, if a party does not appear, a decision can also be made on the basis of the files, provided that this possibility has been expressly pointed out in the summons.

Court order

Finally, there is the possibility at the social court to decide the legal dispute by court order; this decision is made solely by the chairman. The court order has the effect of a judgment. In matters that are capable of appeal, the instance is terminated; in matters that are not capable of appeal, everyone involved can force an oral hearing.

Special options for terminating proceedings

A special feature compared to proceedings in the other branches of the court should be mentioned that the plaintiff belonging to the group of persons under Section 183 SGG (e.g. social insured person, beneficiary) at any time without sanction, i. H. in particular, can withdraw the action at no cost. After a complaint has been withdrawn, such a plaintiff does not have to pay either court costs or the extrajudicial costs of the opposing party. The social judiciary knows no default judgments . There are also no acknowledgment judgments; rather, the accepted acknowledgment takes care of the process. In Berlin, Bremen, Hamburg, Hesse, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Lower Saxony, Rhineland-Palatinate, Saarland, Saxony-Anhalt, Saxony and Schleswig-Holstein there is the possibility of reaching an agreement within the framework of the social court mediation . By July 31, 2013, these offers will be transferred to the judges' model , which also applies to social justice via Section 202 SGG.

expert

Since the proceedings before the courts of social justice often deal with medical issues, every plaintiff has the right to name any licensed doctor who must be heard by an expert ( Section 109 SGG). In terms of persuasiveness, a doctor with experience as a forensic expert is an advantage in many cases. The doctor is commissioned directly by the court to prepare a socio-medical report. Usually this includes an outpatient physical examination. The assignment can be made dependent on a cost advance to be paid by the plaintiff (or his legal protection insurance), which is only repaid if the expert opinion obtained in this way has helped to clarify the matter.

Appeal

Appeals and revisions are available as legal remedies . The regional social courts act as appeal courts, and the federal social court acts as appeal court.

special cases

According to Section 28 (2) SGG, several states can set up a joint state social court. This is currently the case for the states of Lower Saxony and Bremen as well as for the states of Berlin and Brandenburg .

See also

For the names and domiciles of the courts of social justice, see the list of German courts # Sozialgerichtsbarkeit .

Web links

literature

  • Wolfgang Ayaß : Ways to social justice. Arbitration courts and Reich Insurance Office until 1945 . In: Peter Masuch , Wolfgang Spellbrink , Ulrich Becker , Stephan Leibfried (eds.): Fundamentals and challenges of the welfare state. Memorandum 60 years of the Federal Social Court. Volume 1: Characteristics and future of social policy and social law . Berlin 2014, pp. 271–288.
  • Wolfgang Ayaß: The jurisprudence in the social insurance up to the Reichsversicherungsordnung. Participants, institutions, procedures . In: Peter Collin (Ed.): Justice without the State within the State. Judicial Self-Regulation in the Past and Present . Frankfurt am Main 2016, pp. 243-259.
  • Saskia Knörr: The emergence of an independent social justice system with special consideration of Bavaria's Regensburg, Univ.-Diss. 2007
  • Michael Stolleis : Origin and Development of the Federal Social Court . In: Deutscher Sozialgerichtsverband (Ed.): Social law practice. Responsibility for the social rule of law. Festschrift for the 25th anniversary of the Federal Social Court . Cologne et al. 1979, ISBN 3-452-18570-2 .
  • Ulrich Wenner, Franz Terdenge, Renate Martin: Basics of social justice. Structures - competencies - procedures . 2nd edition, Berlin 1999, ISBN 3-503048073 .
  • Matthias von Wulffen (Ed.): Festschrift 50 years of the Federal Social Court . Cologne et al. 2004, ISBN 3-452-25516-6 .

Individual evidence

  1. ↑ Eberhard Eichenhofer in "Sozialrecht", 6th edition 2007, pp. 138f
  2. ^ Speech by Federal Minister of Justice Brigitte Zypries on April 24, 2004 in Kassel. ( Memento of the original from April 7, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bmj.bund.de
  3. ↑ cf. Heydemann, NJW-Aktuell issue 12/2010, p. 12
  4. ↑ On the activities of arbitration tribunals and the Reich Insurance Office in the 19th century, cf. Collection of sources on the history of German social policy from 1867 to 1914 , Section II: From the Imperial Social Message to the February decrees of Wilhelm II (1881-1890), Volume 2, Part 2: Extension legislation and the practice of accident insurance, edited by Wolfgang Ayaß , Darmstadt 2001; Collection of sources on the history of German social policy from 1867 to 1914, III. Department: Expansion and differentiation of social policy since the beginning of the New Course (1890-1904), Volume 2, The revision of the accident insurance laws and the practice of accident insurance, edited by Wolfgang Ayaß, Darmstadt 2009.
  5. ↑ This differentiation continued until 2004. She was responsible for ensuring that the (not structured under insurance law) social assistance according to the Federal Social Assistance Act until 2004 was an issue that was negotiated before the (general) administrative courts.
  6. ↑ Stolleis, Festschrift for the 25th anniversary of the BSG, p. 40.
  7. ↑ On the whole: Wenner, Terdenge, Martin: Grundzüge der Sozialgerichtsbarkeit. 2nd edition 1999, p. 29 ff.
  8. ↑ Guideline on the election, tasks and working methods of the complaint commissions for social insurance of the Free German Trade Union Federation of February 21, 1978 ( Journal of Laws of I No. 8 p. 109 )
  9. ↑ Ordinance on the election, tasks and working methods of the complaint commissions for social insurance at the State Insurance of the German Democratic Republic (complaints committee regulations) of 4 May 1979 ( Journal of Laws of I No. 14 p. 106 )
  10. ↑ inserted by the 7th SGGÄndG of December 9, 2004 (BGBl. I 2004 p. 3302)
  11. ↑ Synopsis on § 92 SGG at www.buzer.de
  12. ↑ Eberhard Eichenhofer in Sozialrecht , 6th edition 2007, pp. 141f
  13. ^ Vehslage, Bergmann, Kähler, Zabel, Legal clerkship and career entry, 2nd edition, 2007, p. 154
  14. ↑ Dürschke / Josephi, Die Sozialgerichtsbarkeit (SGb), 2010, p. 324.