Judgment style
The judgment style is a linguistic rule for drafting the tenor of a judgment and the reasons for it, according to which a result is categorically communicated and then justified.
The justification is based on the examination standards, claims and defense standards under which the judge subsumes the factual submissions of the parties . For this purpose, it forms one or individual chains of reasons depending on the factual feature or set of features to be checked. He precedes them with major statements. He ends the respective chain of reasons with the determination of the existence or the lack of determinability of the necessary facts. Here too, and especially, the style of judgment applies, that is, within each chain, the following sentences establish or develop the preceding sentences. The judgment style is adhered to as long as a “for” can be inserted between two sentences.
The general scheme for the individual justification is: legal consequence of the norm to be examined given or not → factual element to be examined given or not → conceptual development of the factual element into individual facts that can be subsumed → individual fact given or not, i.e. undisputed , proven or not ascertainable .
- Example: The exclusion of the objection to the reduction in price in § ... of the rental contract does not fail, contrary to the opinion of the defendant, due to an ineffectiveness according to § 536d BGB . The bad faith of the plaintiff required for ineffectiveness according to this provision is missing. There is malice if the landlord knew the mistake or at least thought it possible . None of these conditions can be determined here . The witness named by the defendant ... did not confirm the allegation that the plaintiff had ...
Legal consequence = ineffectiveness; Standard = § 536d BGB ; Constituent element = fraudulent intent; (inner) fact = knowledge or awareness of the possibility; Existence of the fact = not ascertainable
The affirmative chains of reasons have priority over the negative ones. In its entirety, the judgment deals with the granting parts first, together with the unsuccessful attacks by the opponent; This is followed by the indecisive plaintiff's submissions, before the decisive objections of the opponent and finally the unsuccessful objections that have not yet been discussed. In the case of multiple complaints or counterclaims, the judge divides the judgment into appropriate sections and, within them, into individual chains of reasons. In the secondary decisions, he justifies his apportionment of costs, which he only makes according to the reason, and his decision on provisional enforceability.
An alternative to the judgment style is the expert opinion style , in which the overall decision is only communicated after the legal basis and the individual reasons have been examined.
See also
literature
- J. Danger, Judgment and Judgment Style in the Civil Law Assessor Examination: A Practical Guide , JA 2005, 523
