Prawo rodzinne w Konstytucji Republiki Federalnej Niemiec
Loading...
Date
1990
Authors
Advisor
Editor
Journal Title
Journal ISSN
Volume Title
Publisher
Wydział Prawa i Administracji UAM
Title alternative
Family law in the Federal Republik of Germany's basic law
Abstract
The significance of constitutional law for private law in general lies in its
grant of selective guarantees. Moreover, it contains guidelines and provides
impulses. Family law is no exception since in its case, too, the Basic Law contains
a set of rules which traces out the crucial, guiding principles merely to be fleshed
out and concretized by the legislator.
Nevertheless, there is no doubt that through its fundamental declarations the
Basic Law (influences family law or attempts to influence it.
The Basic Law does not contain a system of family law as such. The declarations
of the Basic Law on marriage and the family have not provided impulses
for the reforms in the post-war period which have transformed the whole of
family law, at least not to the extent that is often assumed with a certain
constitutional fervour. This accords with the clear recognition that ordinary statute law too can only direct social behaviour within very narrow limits. Family law
is a mirror of social reality; it shapes that reality only slightly. This may
disappoint the family law judge. The merits of the Constitution — or more
precisely, the jurisdiction of the Constitutional Court — are to be found in the
manner in which it concretises basic rights in a binding way and, in view of the
numerous reforms of the post-war period, in the possibility it presents for judicial
review. Moreover, the decisions of the Federal Constitutional Court have lead to
an increase in sensitivity towards those basic rights, to a change in values and
to rationalisation. Problems are created by the almost total lack of acceptance of
standarizing legal rules. This is part of a general development for which the
Federal Constitutional Court is certainly not responsible. However, the Court ought
to resist this development, expressed in legislation by the use of blanket — and
hardship clauses and in the courts through decisions based on principles of fairness,
more strongly at least where family law is concerned.
Description
Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny, 52, 1990, z. 2, s. 89-113