Federal Constitutional Court Of Germany Research Articles

성별 다양성에 대한 헌법적 접근

The term ‘third gender’ refers to a variety of gender identities that do not fit into the binary system of male and female, including transgender, non-binary, and genderqueer. This term signifies individuals whose gender identity differs from their biological sex, playing a significant role in social and legal recognition and policy. While legal approaches to gender have traditionally been based on binary gender norms, there is a growing legal framework recognizing the third gender. In 2017, the Federal Constitutional Court of Germany ruled that the legal requirement to register a person's gender as either male or female at birth does not fulfill the constitutional guarantee of equality irrespective of gender. Consequently, Germany established a legal avenue for registering a third gender. The Federal Constitutional Court recognized the connection between personal dignity and gender identity. It also acknowledged the substantial impact of gender on an individual's identity and social interactions. Such changes reflect the legal acknowledgment of social diversity and inclusiveness, contributing to enhanced recognition and understanding of the third gender. Our society also needs legislative efforts to adapt to the changing perceptions and recognition of gender beyond the binary thinking of male and female.

헌법상 가족 개념의 변화와 동성혼에 관한 논의

When societal conflicts rage over an important issue, such as those surrounding same-sex marriage, it is not easy to find a way to resolve them. In terms of democratic legitimacy, it is preferable for parliament to resolve the issue, but if that process does not work and human rights violations continue, the judicial process could resolve complex political issues rather than leaving them unresolved. Court judgments have emerged as a form of civil discourse linking judicial activism, social movements, and human rights movements. Additionally, civil discourse on law, rights, and justice is no longer the exclusive domain of experts because judicial decisions have become a catalyst of democratic communication between people and the state. Moreover, judicial dialogues play a positive role in overcoming the limitations of democratic institutions. For this reason, the active role of the courts is not incompatible with democratic principles but also enforces the active obligation of the state to address issues such as grave human rights violations caused by delayed political decision-making. The Same-Sex Marriage Act was passed by the German Federal Council (Bundesrat) on July 7, 2017, and was passed by both houses of parliament without constitutional amendments. This would not have been possible without the role of the Federal Constitutional Court of Germany. It has made a significant contribution by ensuring that the constitutional concept of family is interpreted more dynamically to reflect changing realities and by removing a number of discrimination surrounding marriage. A complete ban on same-sex marriage is hardly a necessary restriction. It is also contrary to the Law of Balancing as it is difficult for a state restricting individual freedoms and rights to justify the serious harm that same-sex couples would suffer as a result of a complete ban.

GERMAN PUBLIC BROADCASTING MODEL: CONSTITUTIONAL AND LEGAL ASPECT

The communication rights enshrined in Part 1 of Article 5 of the Basic Law of the Federal Republic of Germany — freedom of expression, freedom of informa-tion, press, broadcasting, and cinema (Kommunikationsgrundrechte) are of constitu-tive importance for German democracy, since the process of forming of public opinion, which is important for the functioning of democratic institutions, depends on the level of their guarantee. At the same time, due to the special persuasiveness of the audiovi-sual form of information presentation, broadcasting is the most significant means of influence. Public service broadcasting (öffentlich- rechtlicher Rundfunk) is central to the German broadcasting system, while the role of private broadcasters is secondary. The decisive importance of public broadcasting in shaping the political opinion of Ger-man citizens presupposes the existence of sufficient and effective constitutional and legal guarantees that exclude the instrumentalization of this institution by the state, industry, and other influential public groups. The article, taking into account the historical con-text and using examples from the legislation and practice of the Federal Constitutional Court of Germany, analyzes these guarantees, and also describes the basic constitutional and legal principles of the functioning of the broadcasting system in Germany. As a conclusion, a set of the basic essential characteristics of the German model of public broadcasting is fixed, which might be used for further critical consideration of this institution.

Liability for Violation of the Duty of Care and Upbringing in the Criminal Code of the Federal Republic of Germany

The relevance of the topic of research is determined by the fact that the problem of non-fulfillment or improper fulfillment by parents (persons who replace them) of childcare responsibilities exists in all countries, regardless of the form of government, state system and income level of the population. Ukraine is in the process of integration with the European Union, so it is useful to study the foreign legislative approach to regulating responsibility for the violation of these obligations. The aim of the article is to study the German experience of establishing criminal liability for non-fulfillment of childcare obligations. Dogmatic, systemic-structural, statistical, historical-legal, formal-legal research methods were used in the research. Attention is paid to German legislation, which provides for the right and duty of parents to care for and bring up children. The genesis of the criminal law regarding the liability for violation of these duties is given. Statistical data on the number of criminal proceedings and persons convicted of this criminal offense (2010–2021) are summarized. The peculiarities of the structure of the crime provided for in § 171 of the Criminal Code of the Federal Republic of Germany have been studied; objective and subjective characteristics. The analysis was carried out on the basis of the doctrine of German criminal law and the practice of courts of general jurisdiction, in particular the Federal Supreme Court of Germany. The practice of the Federal Constitutional Court of Germany was used. Based on the study, conclusions were formulated regarding the definition of: the legal interest that is protected; signs of "gross" violation of duties; criteria for establishing the consequence of the crime, which is provided as the tort of creating danger. The peculiarities of the qualification of the crime in case of its commission in a place where an armed conflict is taking place are noted. The allocation of an independent structural section (subsection) in the Criminal Code of Ukraine, which includes criminal offenses against family, is supported. The discussion of the criminalization of harm caused by a crime provided by Art. 166 of the Criminal Code of Ukraine, creating a real threat (danger) of causing harm to the victim is proposed.

Nachvollziehbarkeit als Kriterium für die Respektabilität von Sterbewünschen? Eine Kritische Auseinandersetzung mit Bettina Schöne-seiferts ,,flankiertem Bewertungssubjektivismus“

On 26 February 2020, the Federal Constitutional Court of Germany pronounced a judgement that the prohibition of assisted suicide services set out in § 217 of the Criminal Code is void. It thereby reestablished the legal state that had obtained before 2015. Furthermore, it defined the right to die as an autonomy-based right, thereby dissociating the right to take one???s life from states of extreme suffering caused by illness. The judgement implies that one can, in principle, resort to assistance for suicide even in the absence of illness and suffering. In this contribution, I deal with the problems that arise as a consequence of dissociating legitimate assisted suicide from states of illness. I analyze Bettina Schöne-Seifert???s suggestion to regard an understandable (,,nachvollziehbar“) wish to die as a wish that is protected by the right to autonomy. It turns out that the criterion of understandability is deficient: it either commits us to regarding every wish to die as understable or it undermines the anti-paternalistic requirement of respecting the patient???s autonomy

Assisted suicide from a psychiatric perspective

Assisted suicide has been the subject of controversial debates for years, particularly intensively since aruling by the Federal Constitutional Court of Germany (BVerfG) in 2020, which postulated that the only prerequisite for the legitimacy of assistance is the free decision to commit suicide. This brings the issue into the focus of psychiatry. On the one hand, because people with mental illnesses can seek assisted suicide and on the other hand, because these illnesses often but not necessarily limit the ability to make afree decision on suicide. In the area of tension between the medical obligation to life and to suicide prevention on the one hand and the obligation to respect autonomous decisions of patients on the other hand, psychiatrists are not only personally challenged to develop amoral stance, but also as aprofession to define the role and obligations of the discipline. This overview aims to contribute to this.

On the Competence Conflicts between the Constitutional Courts of the EU Member States and the Court of Justice of the EU

The article is aimed as a contribution to academic discourse on how to solve possible competence conflicts between constitutional or other highest courts of the EU Member States and the Court of Justice of the EU (CJEU). This discourse has rather recently received an extraordinary impetus when Federal Constitutional Court of Germany (FCC) handed down its judgment in Weiss. For the first time in its history, the FCC invoked the ultra vires doctrine against an EU act and a CJEU judgment. It is argued in the article that the final say in dealing with such competence conflicts should not and cannot rest with either the CJEU or individual national apex courts. The article supports the idea of establishing an EU-competence super-arbiter. However, it is stressed in this respect that the component members of whatever EU-competence super-arbiter to be established should always include the representatives of all EU Member States (although not necessarily only them) and the voting of such EU-competence super-arbiter should be based on the (absolute) majority of those of its component members that are the representatives of Member States. Otherwise, the collective competence-competence monopoly of the EU Member States in the EU would be breached too strongly.

Freedom of profession and protection of private property in the decisions of the Federal Constitutional Court of Germany

In this article, on the example of the decision of the Federal Constitutional Court of Germany, the correlation between the freedom of profession and the constitutional guarantee of private property in Germany will be considered. As an example, one of the early cases of the Federal Constitutional Court of Germany called “District Chimney Sweeper”, which was decided on April 30, 1952, is taken. In this case, the Federal Constitutional Court of Germany came to the conclusion that the “enterprise” of a chimney sweep is a craft in which the private law aspects of economic life completely fade into the background, and in which moments of strict public law regulation certainly dominate. This circumstance does not allow us to bring the concept of “guaranteed right to engage in a craft” under “property” in the sense of Article 14 of the German Basic Law of 1949.

Legal regulation of counteraction to domestic violence in Russia and Germany: comparative analysis

The subject. The article considers a study of regulation of countering domestic violence in Russia and Germany. The author investigates the draft of Russian federal law "On the prevention of domestic crimes" No. 1183390-6 and the law of Germany "On civil protection from acts of violence and persecution" as well as federal and lands’ legislation in this sphere. Purpose of the study. The comparative study aims to identify the reasons for the draft’s unviability in Russian Federation, in particular, and to search for legislative opportunities to solve the domestic crime’s problems in Russia, in general.Methodology. The article is based on the comparative legal method. Due to this method, the article describes the legal protections against domestic violence in Russia and Germany (at the level of the federation and states), the advantages and disadvantages of each system.The main results. The legal measures in Germany as well as the draft federal law in the Russian Federation contain protective measures that can be applied by police and court. The main feature of German measures from Russian ones is the possibility of temporary violator’s ejection from the occupied housing by issuing a judicial or police order. The simplicity of the procedure allows а victim to receive effective help at any time, even at night and on non-working days. The article analyses the allowability of these measures to the offender from the point of view of basic rights’ interference; notes the position of the Federal Constitutional Court of Germany about the police order on temporary eviction: the residence ejection is allowable only when the measure aims at preventing criminal acts. The article draws attention to the technique’ defects of the Russian draft federal law "On the prevention of domestic crimes" No. 1183390-6, which require correction in order to improve the domestic violence’ counteraction in Russia.Сonclusions. It is concluded that in the Russian Federation it is necessary to differentiate heterogeneous phenomena in the law, such as victim’s protection from domestic violence and preventive family relationships’ measures, unreasonably mixed together in the draft federal law "On the prevention of domestic crimes" No. 1183390-6. Besides the law about victim’s protection from acts of violence and persecution should include significant consequences exactly for the violator. In this regard, the German multi-level protection system consisting of police protective measures, preliminary judicial measures as well as judicial measures can be applied. German practice makes it possible to react quickly to an act of domestic violence and provide the necessary victim’s support. The experience of applying the police order on the temporary eviction in Germany as well as violator rights’ interference may be appropriate for use in Russia.

Сompetence of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine: comparative legal analysis

Reflections on «possible constitutions of Europe» can have two directions. On the one hand, one can wonder about the legal form of the European Union: the fact that it is no longer a confederation of states, but not yet a federal state, requires a legal classification, for which a new concept of Verfassungsverbund was created in Germany, that is, a constitutional union. On the other hand, the question arises as to which national constitutions, or which parts of these constitutions, or which individual norms of these constitutions are best used to build a constitutional order in Europe. Solving this issue is not only a classic mission of comparative jurisprudence, but also of the current law of the European Community, since Article 6 of the Treaty onthe European Union declares certain principles of the Western constitutional state «common to all member states» and orders to consider fundamental rights «arising from common constitutional traditions of member countries, as general principles of Community law». Within the framework of the second way of formulating the question, the following description refers to the experience gained during the use of elements of the German Constitution to build other European constitutions. In this article, we will conduct a comparative legal analysis of the powers of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine. The possibility of legal review guarantees the supremacy of the constitution by sanctioning theviolation of the law of the constitution by repealing the law. According to the experience accumulated so far, an autonomous and independent constitutional court with the possibility of a constitutional appeal is a good way to protect human rights. Constitutional courts have a part of each existing state monopoly, namely the power of parliament to make laws and the power of the supreme court to interpret and apply laws passed by parliament.

Enforcing Constitutional Sustainability Clauses in the Age of the Climate Crisis: Insights from Social Contract Theory on How to Take Account of Future Generations

Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.

A Discussion on the Covert Surveillance Measure of Preventive Policing: Focusing on Judgments Related to the Covert Surveillance of the Federal Constitutional Court in Germany

A Discussion on the Covert Surveillance Measure of Preventive Policing: Focusing on Judgments Related to the Covert Surveillance of the Federal Constitutional Court in Germany

The Basis of Constitutional Adjudication in Germany

The Federal Constitutional Court of Germany leads the judiciary’s independence by protecting human rights within the Basic Law’s legal framework. In this case, the jurisdiction of the Court is essential to analyse comprehensively. The first and foremost function is interpretation. It is concerned with the extent of a supreme federal authority’s rights and duties and the citizens who can enjoy the fundamental rights under the Basic Law. The rest are abstract judicial review, constitutional complaint, and concrete judicial review. These all seem to depend on the Court’s interpretation and the supremacy of human dignity. Therefore, the issues lie when human dignity becomes a constitutional principle to resolve economic, social, and political disputes within the constitutional framework both in Germany and the European Union in practice. This research will used qualitative approach method. According to the literature reviews, human dignity is supreme, but it does not mean absolute.

Empirical Research on the Federal Constitutional Court of Germany. A Short Report on the State of the Art in Political Science

AbstractThe article undertakes an overall view of the political science contributions to federal constitutional court research in the last 15 years. It assigns the development strands to different designs and theoretical paradigms. What follows is a brief introduction into the relationship between the rule of law and constitutional courts and a short review of the relevant impulses and favoring factors within the German-speaking research landscape for this branch of research. This overview reviews then three research fields – rationalities of action, networks, and impact – are examined in more detail and their innovations and desiderata.

Znaczenie orzecznictwa niemieckiego Federalnego Sądu Konstytucyjnego dla praktyki orzeczniczej polskiego Trybunału Konstytucyjnego

The aim of this article was to find an answer to the question about the role played by the case-law of the Federal Constitutional Court of Germany in the case-law of the Constitutional Tribunal of Poland, and to the question about the sort of cases heard by the CT, in which references to the FCC case-law occurred most often. An attempt to answer the above-mentioned questions were asked after empirical research. The judgments of the CT, publicly available on the Online Judgment Portal on the website of the CT, served as empirical material. In the case-law of the CT, it was not clearly indicated whether, in the case of referring by the CT to the case-law of the FCC, the Tribunal did it for comparative purposes, whether it was related to the interpretation of legal norms by the CT or for another purpose.

Judgment of the German Federal Constitutional Court (2 BvR 859/15) on the Public Sector Purchase Programme of the ECB: An Interdisciplinary Analysis

On 5 May 2020, the Federal Constitutional Court of Germany announced in a momentous ruling that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB) exceeds European Union (EU) competences. This decision initiated a lively debate in law and economics all over Europe. This article provides a unique interdisciplinary reading of the ruling in order to clarify the line of argument. Considering a cross-disciplinary view enlightens the understanding of the historic judgment. Ultra-Vires, European Court of Justice, German Federal Constitutional Court, Public Sector Purchase Programme, European Central Bank, Monetary vs. Economic Policy, Economic and Monetary Union

The Climate Protection Order of the Federal Constitutional Court of Germany and the North-South Divide

AbstractThe Federal Constitutional Court (FCC) in Germany has issued a landmark ruling with regard to climate change. It opens its jurisprudence for a new dimension of human rights: The intertemporal guarantee of freedom. It argues that the legislature has violated fundamental rights by failing to take sufficient precautionary measures today for the time after 2030. The emissions allowed in the Federal Climate Change Act until 2030 will nearly exhaust Germany’s remaining CO2 budget. After 2030, drastic legislative measures, which curtail nearly all activities that emit CO2, might be necessary. If emission reductions are delayed until 2030, the costs of climate protection will increase for future generations, and with it the risk that emission reductions will only be possible at the price of serious losses of freedom. Therefore, the legislature needs to act now and take the time after 2030 into consideration. The order might eventually influence climate change litigation in other areas of the world. The article will demonstrate the main arguments of the FCC order. The combat of climate change is an international task, which cannot be solved by Germany alone. The FCC takes this fact to some extent into account. It argues for international cooperation to combat climate change. Unfortunately, it does not fully evolve a jurisprudence which takes the core principle of common but differentiated responsibility (CBDR) seriously and addresses the questions of equity. The CBDR principle is one of the core principles which should solve the North-South divide and which should bring together the efforts of rich as well as poor countries to combat climate change. It is enshrined in the Paris Agreement. The FCC engages with this principle on the surface but misses the opportunity to truly and deeply engage.

Still Unifying? The Future of the Unified Patent Court

Since its launching, the Unified Patent Court (UPC) project has faced obstacles and scepticism from some EU Member States. When the United Kingdom ratified the UPC Agreement in 2018, it seemed that there was nothing left but to wait for a positive decision of the Federal Constitutional Court of Germany on the ratification by that country, so that finally the UPC could start its activity. Nevertheless, 2020 brought events that make one look back and reflect on the project itself. The UK withdrew its ratification and the Federal Constitutional Court ruled the German ratification process of the UPC Agreement unconstitutional. Then two new complaints were submitted to the Federal Constitutional Court, which this summer finally gave the green light to the ratification, but it seems the UPC project has already split Europe. The question that arises is whether, in the context of last year’s events and the fracture between the states, the unitary patent system can still be seen as unifying the European patent litigation system. This article discusses the examples of Poland, Hungary and the UK, as countries that refuse to participate in the system due to its interference in their internal legal systems and sovereignty, and other examples of fractures visible in the UPC.

Ambivalence of Obviousness: Remarks on the Decision of the Federal Constitutional Court of Germany of 5 May 2021

Inspired by the recent activation of the ultra vires review of the Federal Constitutional Court of Germany, the article analyses one of its restrictive elements: the concept of obviousness and its concretization through objective arbitrariness. These concepts are used with good intentions insofar as the ultra vires review requires some conceptualization of deference. But they are incapable of fulfilling this purpose: they disregard the expressive function of law, grant either too much or no deference, and are incompatible with each other. Instead, the substantive standards of structural significance and openness, combined with the procedural rule of unanimity, could serve the purpose of deference in a better and less conflictual way. Deference, Ultra Vires Review, Unanimity, Expressive Function of Law, Arbitrariness, Obviousness, Structural Significance, Openness, Control of Integration, Decision of the Federal Constitutional Court of Germany of 5 May 2020

CONSTITUTIONAL IDENTITY IN THE ARGUMENTATION OF DECISIONS OF CONSTITUTIONAL COURTS

The latest trend in modern European constitutionalism is the issue of constitutional identity. Constitutional courts, which are the embodiment not only of the protection of the Constitution, but also of the limitation of power, are influential subjects of assessing the country’s international obligations and their implementation in national legislation. The purpose of the article is to analyze the constitutional identity in the argumentation of decisions of constitutional courts.
 The research method is a comparative legal analysis of the practice of constitutional review bodies in order to assess the expression of the concept of respect for national identity, which has become a condition and principle of legal integration in the European region. In addition, empirical analysis of decisions of constitutional courts was used. Using the system-structural method, the doctrine of «constitutional boundaries» as a component of constitutional identity is analyzed.
 It is justified that the concept of «identity» appeared and began to be actively used by European constitutional courts to justify decisions related to the processes of European integration and the expansion of the influence of supranational institutions of international organizations, including the European Union. It is proved that the decisions of constitutional courts should be based on national legal values, taking into account international practice and the principle of the supremacy of the Constitution. At the same time, national courts must take into account the country’s international obligations when making decisions. In today’s world, constitutional courts cooperate with the courts of international organizations, which form a common case law in the member states, in particular on the interpretation of human rights. This is manifested in the citation by constitutional courts in their acts of decisions of supranational judicial bodies. It should also be noted that the constitutional court may be guided by the positions of international courts in forming its legal position, but according to the doctrine of judicial discretion, the national court is free to assess the circumstances of the case and it is best acquainted with national features and specifics of national law.
 The analysis of the decisions of the bodies of constitutional proceedings, which used the concept of constitutional identity, gave grounds to claim that the courts in their practice in their interpretation appealed to different arguments depending on the specifics of the case. For example, in formulating the doctrine of constitutional boundaries, the Constitutional Court of Italy, in substantiating its decision, used at the same time an argument by analogy, an argument of agreement, an argument of general principles. The Federal Constitutional Court of Germany in its decision in the case of the Maastricht Treaty resorted to naturalistic and systemic arguments.
 It is concluded that constitutional identity is a system of interpretive arguments used by constitutional courts to substantiate decisions that verify compliance with the national specifics of constitutional norms. Of course, this applies to the categories of so-called «difficult cases», for the argumentation of which requires a system of strong arguments.