Dissenting opinion

The term dissenting opinion, the dissenting opinion of one or more judges with the decision of a panel is called, which does not agree with the majority opinion.

Dissenting votes come in two types before:

• The result is not load-bearing minority opinion ( dissenting vote, dissenting opinion ), in which the / the judge wanted a different outcome of the case as the majority / have;
• Result in favorable minority opinion ( consenting vote, concurring vote, Plurality opinion, separate opinion), in which the result of the majority opinion is supported, but for different reasons.

Deposits in Germany

At the Federal Constitutional Court

In the proceedings before the Federal Constitutional Court ( Bundesverfassungsgericht ) 2 BVerfGG introduced the possibility of a special vote with the 4th Amendment Act of the Federal Constitutional Court Act of 21 December 1970, § 30 para. Since then, a minority report with the signature of the dissenting judges votes the decisions of the Constitutional Court may be annexed. The aim of the reform was to achieve greater transparency in court decisions and to strengthen the position of individual judges.

In the states

Also at the national constitutional courts in Germany dissenting opinions are possible. For example, § the corresponding application of § 30 para 2 BVerfGG before 12 paragraph 1 of the Lower Saxony Law on the State Court. The Hessian State Supreme Court Act provides for an independent control over the possibility of a special vote in § 16 paragraph 3. In the process of arbitration dissenting opinions are also permitted.

At other courts

The dissenting opinion is admissible only to constitutional courts. For all other courts may a dissenting opinion not be published. A judicial discretion arises from the extent § 43 DRiG which protects the secrecy of deliberations. The introduction of dissenting opinions at all courts was discussed in detail at the 47th German Jurists in 1968. Particularly problematic is the question of whether jurors may submit as lay dissenting votes and whether may be subject to a special vote in addition to legal and factual questions.

In Common Law

In contrast to German law, may in the Anglo-Saxon legal principle, dissenting opinions are published, what happens extensively, for example, the Supreme Court of the United States. This practice also applies to most international award bodies, which are more influenced by the common law than the continental law. Basically, the individuality, the judge is more strongly emphasized by dissenting votes.

Importance of dissenting opinions

In terms of decisions, dissenting opinions play a relatively minor role. Of the 1,714 decisions printed in the volumes BVerfGE 30-101 contained only 108 decisions dissenting opinions. Citations in the literature, especially the majority opinion, while the reasoning of the dissenting opinions often plays only a minor role in the later scientific discourse. However, dissenting opinions can lead to a case- steering. Thus, a dissenting opinion, for example, indicate a subsequent opinion change when change opinions on the basis of social change. Even in the actual decision, the announcement of a special vote lead to a more intense debate within the college, enabling a more balanced result.