Loophole

A loophole in the law (or legal lacuna in the criminal law and loophole in the tax law tax loophole ) is a term from the legal policy debate, a political slogan and a concept of legal methodology, which describes a situation in which the legislature has not settled a case he would have regulated recognizable if he had recognized the need for regulation. After Canaris, the gap is a "plan adverse incompleteness within the positive law, as measured by the scale of the entire applicable law ." No legislator can foresee all future cases of conflict. Every law is necessary patchy with his abstract language and because of the diversity of living and their constant change.

Concept of gap

By interpretation in the strict sense you meet a selection of the different meanings that are consistent with the possible sense of the word. Filling in a gap in the law, however, is a different from the wording of the law legal education, which depends on additional conditions. A loophole appears when the control needs facing the existing statutory law. A fill out needy loophole is to say when a legal problem in the law is not regulated or not, as you would expect, with proper application of the principles of interpretation of the methodology.

Types of gaps

It can be distinguished following types of vulnerabilities:

A) By the standards of grammatical, subjective or objective interpretation:

• Standard gap: incompleteness or ambiguity of a single standard, eg § 463 sentence 2 BGB.
• Loophole: a system as a whole, that is, an internally of associated complex of individual standards is incomplete (eg Culpa in contrahendo ( fault of the contract ); contract with protective effect for third parties).
• Law or field gap: it lacks a provision for a whole area of ​​life that would be expected according to the principles of subjective or objective interpretation. Example: According to Article 117 of the Basic Law came on 31 March 1953, the marriage and family law, the Article 3 para 2 GG disagreed, suspended, although new legislation was not yet available. This gap was filled by judicial law formation, was issued until 1957, the Equal Opportunities Act.

B) After the scale of the subjective- purposive interpretation:

• Laws About Increasing legal education: This is a development of the law, contrary to the purposes of the legislature. The legal concept of " frustration of contract basis " was the absence of legal regulation already developed by the Supreme Court and then by the Federal Court. Since 1 January 2002 there is a statutory provision in § 313 BGB. The Federal Constitutional Court has the competence of judges to "creative legal findings " affirmed itself a development of the law contrary to the express laws will ( " contra legem ", see below): " This is especially true when between the creation and application of a law the living conditions and legal conceptions as have changed profoundly as in this century. A hereafter possible conflict with the standard with the substantive ideas of justice of a changed society can not escape by pointing to the unchanged text of the law, the judge; he is forced to freer handling of the rules if he does not want his job, right to speak ' miss. "

C ) Within the loopholes can be distinguished:

Overt and covert loopholes:

• A legal loophole is open, if the law of a case group contains no rule, although it should include a rule by the standards of subjective or objective interpretation ( eg § 463 sentence 2 BGB).
• A legal loophole is obscured when the gap in the absence of an exception to a rule exists ( eg § 400 BGB).

Conscious and unconscious loopholes depending on

• Whether the legislature has left open a question of law consciously, to be left to the case law for clarification, or
• Whether the legislature has overlooked the question of law (eg fault of the contract ).

Closing the gaps

The competence of the closure of loopholes in the law lies primarily in the legislature itself often fall gaps in the law, however, only the courts, which then these gaps, for example, can conclude by an analogous application of the law, namely, as this corresponds to the presumed intention of the legislature: be closed loopholes in the rule by comparative thinking, that is the fact that much same same, substantially unequal to unequal treatment: ie Captures the text of the law cases not that would have to treat the cases regulated by law equal, requires a widening application of the statutory scheme by analogy (ie, by a direct treatment). Captures the law even ( uneven) cases that rightfully should not detect it after the legislative objective - that is missing an exception - so is also to close this 'gap'. This can also be done, that the law is applied with a constraint ( teleological reduction). Closing a gap can even be done against the actual laws will ( " contra legem "). Contrary to the unique se wording of § 400 BGB (hence contra legem ) "... this possibility is in compliance with all caution that requires such Any amendments but functional faithful restriction a prohibition norm, in the affirmative, because otherwise the objective pursued by the law purpose, the pensioner to protect, would be perverted into its opposite. "

In particular, in criminal law, this is not possible. Here it is in the Constitution ( see Article 103 § 2 of the Basic Law ) not allowed to extend the scope of a criminal provision as to its literal meaning at the expense of the offender ( criminal prohibition causative and aggravating analogy; inaccurate: analogy ban). The certainty requirement imposes an obligation on the legislature to rewrite the conditions of criminality so accurate that scale and scope of the offenses of norm addressees are recognizable from the law itself and can be determined and concrete by design. The letter addressed to the legislature certainty requirement corresponds to the analogy prohibition addressed to the Court. Article 103 § 2 of the Basic Law prohibits to justify crimes by analogy or aggravating. Each tatbestandserweiternde interpretation that goes beyond the possible sense of the word, is not permitted. Is a deed had not been expressly punishable time of the crime, so therefore, a criminal conviction does not take place ( retroactivity ).

The same applies if the legislature has indicated by an enumerative list, that it is opposed to extending the scope to similar products not mentioned cases ( " enumeratio limitatio ergo ").