Judiciary

Referred to case law

• The judiciary - the judiciary,
• The activities of the judiciary - jurisprudence,
• Particular prior Giudicati ( consolidated, permanent, common law ) to a specific question of law ( see also prevailing opinion ).

Germany

Case law is the effort of the courts to enforce the rules of a society. In Germany, the Federal Constitutional Court (Article 93 and Article 94 of the Basic Law), the constitutional courts of the countries and the courts of the federal and state governments in the different court branches ( jurisdictions ) speak under Article 95 of the Basic Law law. The law -speaking institutions are bound by law and justice (Article 20 § 3 of the Basic Law).

The case law is part of the administration of justice and most important conditioning and disciplining instrument of society. It has the goal of reducing human convenience by the threat and enforcement painful consequences to a level that allows peaceful coexistence of many people. The legality or legal government actions follows from Article 20, paragraph 3 of the Basic Law. He is the most important normative basis for the rule of law.

The judicial power is entrusted to the judges (Art. 92 GG), posing as professional judges and lay judges according to ( § 1Vorlage: § / Maintenance / buzer of the German Judiciary Act - DRiG ) take care of the implementation of the legal system. In the European Union, the jurisprudence of the European Court of Justice (ECJ ), exercised by the Court of First Instance of the European Communities (CFI ) and the Court of the Civil Service of the European Union.

Jurisdiction in the strict sense

In a narrower sense one speaks of jurisprudence in contrast to the legal literature or from the jurisdiction of the courts on a particular area of ​​law or to a particular point of law.

Settled case-law

Under settled case-law, a lawyer understands the fixed opinion of the judges in the competent court branch that can not yet be regarded as settled law.

An action that does not meet the established case-law, but is based on the opposite view is, therefore, mostly remain unsuccessful. For liability reasons, a lawyer will not bring such an action in a rule without first pointed his clients on the risks associated with the lawsuit. The key, however, is basically just the view of those judges who are responsible in the last resort, since their judgments can no longer be attacked with appeals. However, on the view of the courts below, it comes when at low amounts in dispute because of the cost is not expected that an appeal has been lodged or is this not possible.

The Bundesgerichtshof (BGH ) changes its established case-law relatively rare. So were the donations from parents to their children law married by 2010 will not be reclaimed because they had to the existing conflicting case law of the Supreme Court as part of the gain balance between the spouses in divorce be compensated. This recourse to the in-laws was excluded due to solid supreme court. By judgment of 3 February 2010, however, the Supreme Court had its previous case law on this abandoned and decided that parents can demand the return of the funds paid during married life to the law child after divorce the children because the business base of the gift is the cohabitation between daughter and son- and this foundation after the failure of the marriage no longer exists.

Settled case-law

Settled case-law ( st. established case law ) is a term coined by the Supreme Court term, which is to show the legal experts that the highest German civil authority has permanently represented at a particular point of law the same legal opinion. Whether the Supreme Court will hold the future of this constant legal assessment, however, is uncertain. " High Judicial judgments are not statutory law and thus do not generate comparable legal binding " was the verdict of the Federal Constitutional Court ( Bundesverfassungsgericht ). For by deviating from a past which legal opinion offends the judge is not contrary to Article 20, paragraph 3 GG. " Judicial decisions that affect the effectiveness of a legal transaction, already act according to their nature one on one in the past, unmarked concluded facts. This so-called simulated feedback effect, as well as in law, in principle admissible. "

However, barriers result from the constitutional principle of legal certainty, which means trust protection for the citizens in the first place. Could the party concerned with the continued application of the current legal situation and expected earned this trust with a consideration of the conflicting interests of the parties and the interests of the general public preference, attacks the retroactivity in a legally protected positions.

Because of the pioneering importance assigned to the supreme courts of the legal reality, a lawyer shall align in principle to this case law in the exercise of a mandate. He may rely on their continued existence in general. This is especially true in the cases of well-established Supreme Court case law, cares because to be disposed of by such a only in exceptional cases. Also conflicting rulings by lower courts and dissenting voices in the literature require the lawyer regularly then not to take into account in carrying out its task, the dissenting opinion.

In a situation of trust, the exceptionally limited associated with a change in the Supreme Court, consequences to an action for the future, but no person may rely. Should the Supreme Court on his case law, so he makes this clear in its judgments with the addition that he " expressly to the previous view no longer holds ... ". Thus, the Supreme Court had - even despite heavy criticism of the literature - to 1992 held in its case-law on liability -free assets and financially overburdened guarantor for the debts of third parties and this particular justified by the warning function of statutory writing. A guarantor favorable change this Court sat for the public recognizable only after the decision of the Federal Constitutional Court of 19 October 1993. In it the civil courts were asked to prioritize the issue of moral standards such guarantees stronger. The Constitutional Court has thus exclusively alleges constitutional general defect in the high court in a particular case with any legal obligations subsumption and noted that courts must clarify in such cases, whether the contractual arrangement is a consequence structurally unequal bargaining power, " and, where appropriate, in the intervene general clauses of the applicable civil law correcting. How did they proceed there and what result they need to get, in the first place is a matter of ordinary law, the Constitution leaves a wide margin. " Therefore, it came as a result to a complete reversal of the Federal Supreme Court.

If, however, judge in a supreme federal court to change their view, although there is no case in which it came down to it, they take in their verdict frequently obiter dictum - Latin for " by the way what is said ", expressed by a court view the precipitated decision not bears, but that was only supplemented from oft occasion - on.

Case law in other states

• In Austria
• In Switzerland
• In the U.S.