L'examen biologique sous contrainte dans le cadre de l'établissement de la filiation en droit allemand

Abstract

Today, hereditary issues can be clarified by blood group reports and DNA analyses. However, most legal Systems do not permit compelled physi-cal examinations. Even indirect compulsion by incarceration or monetary fines is rejected e.g. in France and Great Britain. By contrast, § 372 a of the Germon Civil Procedure Code (« ZPO ») allows persons to be compelled to undergo a physical examination, if necessary, with the aid of the police. This provision goes back to the time of the national socialists. However, its justification was never seriously scrutinized after 1945. In particular, § 372 a ZPO was never criticized as a rule of law perviated by national socialist ideology. The so-called right to knowledge of genetic descent has greater significance in Germany thon in France or Great Britain where case law and legal theory continue to refer to such a right, but interpret it very narrowly as a resuit ofother rights worthy of protection, such as the right to physical integrity. The following article intends to show that « true descent » is traditionally so important in German family law that opposing interests of the affected person himself or third parties which the courts are supposed to weigh are often neglected.