scholarly journals Legendierte Polizeikontrollen: Judgment from the German Federal Court of Justice (Bundesgerichtshof) of April 26, 2017, 2 StR 247/16

2020 ◽  
Vol 21 (4) ◽  
pp. 756-774
Author(s):  
Dorothee Karbe ◽  
Charlotte Jawurek ◽  
Philipp Sarder
Keyword(s):  
The Netherlands ◽  
Standard Procedure ◽  
Federal Court ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Evidence Gathering ◽  
The Subject

AbstractThe German police stopped and searched a car crossing the border from the Netherlands and thereby detected large quantities of drugs. What sounds like a standard procedure is actually a very controversial case recently heard at the German Federal Court of Justice (Bundesgerichtshof; BGH), dealing with so called legendierte Polizeikontrollen. These are apparently random police checks that are, in reality, well prepared and specifically targeted at the subject of the police check due to ongoing investigations. This case raised the issue of lawful evidence gathering by the police when pursuing both preventive and repressive objectives, as well as the question of the subsequent exploitation in court of the evidence obtained. Addressing issues of the utmost significance, such as the circumvention of the rights of the accused, this BGH judgment was critically reviewed among legal scholars.

Freiheit der Advokatur

2021 ◽  
Author(s):  
Philipp Heinrichs
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Selection Procedure ◽  
Federal Court ◽  
The European Union ◽  
Court Of Justice ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
The Subject

Since the abolishment of singular admission to the higher regional courts in 2000, the judiciary has been asking itself the question whether singular admission to the Federal Court of Justice is compatible with the German Constitution and the laws of the European Union. In particular, the non-transparent selection procedure was and is the trigger of controversial discussions and the subject of legal disputes. The work questions the conformity of singular admission to the Federal Court of Justice with the German Constitution and considers the selection procedure to be without transparency, comprehensibility and rule of law.

scholarly journals Developments in German Criminal Law: Speed Merchant or Murderer? The Ku’Damm Road Race Case and the New Criminal Legislation Regulating Illegal Motor Racing

2021 ◽  
Vol 22 (2) ◽  
pp. 288-302
Author(s):  
Khulan Davaanyam ◽  
Franziska Wolff ◽  
Ranya Khalaf
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Court Of Justice ◽  
Life Sentence ◽  
Federal Court Of Justice ◽  
Road Race ◽  
The Subject ◽  
German Parliament ◽  
Criminal Legislation ◽  
Motor Racing

AbstractThe Regional Court of Berlin (Landgericht (LG) Berlin) was the first court in Germany to mete out a life sentence for murder—pursuant to § 211 German Criminal Code (StGB)—to two men convicted of killing an uninvolved driver whose car they hit while they were participating in an illegal car race on a public highway. Upon their convictions, the defendants appealed to the German Federal Court of Justice (Bundesgerichtshof; BGH) claiming that they did not intend to kill the person and were thus acting without the necessary mens rea for murder. The question whether or not the case could be qualified as murder, and thus whether or not the existence of a killing with intent had been sufficiently proven by the LG Berlin, was the subject of several appeals and retrials. In its latest decision, the BGH confirmed the murder conviction of one of the defendants, while quashing the other defendant’s conviction and issuing a retrial. This case caused ripples amongst legal scholars as it called for the toughest possible sanctions to be imposed. However, whether the conduct qualifies as murder remains questionable. As a reaction to several similar cases of illegal car races in recent years, the German parliament subsequently passed a new law—§ 315d StGB—proscribing illegal vehicle races, thereby penalizing the participation, organization, or carrying out of an illegal vehicle race. Until that point there had been no provision criminalizing illegal racing.

Der Verbandsstrafenregress im Nachgang an störendes Zuschauerverhalten

2019 ◽  
Author(s):  
Thorsten Nees
Keyword(s):  
Federal Court ◽  
Legal Issues ◽  
Legal Practice ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
The Subject

Football associations taking recourse to imposing penalties is not only an issue that the German Federal Court of Justice, the Bundesgerichtshof, has had to deal with repeatedly, but is also the subject of numerous articles. However, the topic has not yet been sufficiently covered by monographs. This work closes that gap in research by addressing the topic and discussing in detail the legal issues that arise when football associations impose a penalty on a spectator. The author first addresses the offences that cause liability, pointing out the need for more in-depth reflections. He then examines known problem areas (attribution of damage, limiting the value of the compensation for damages, case-by-case partition of damages and the legal practice of association courts). He also focuses on answering the question of whether the possibility of imposing a penalty is affected in cases where the penalty imposed by the football association is based on its own ineffective regulations. Considering previously expressed positions on this issue, the author presents his own solutions to it.

Money Laundering and Surveillance of Telecommunication – The Recent Decision of the Bundesgerichtshof (BGH – Federal Court of Justice)

2004 ◽  
Vol 5 (2) ◽  
pp. 123-133 ◽  
Author(s):  
Hans Kudlich ◽  
Florian Melloh
Keyword(s):  
Money Laundering ◽  
Criminal Procedure ◽  
Federal Court ◽  
Court Of Justice ◽  
Procedure Code ◽  
Federal Court Of Justice ◽  
The Subject

The possibility of monitoring telecommunications pursuant to § 100a of the Strafprozeßordnung (StPO – Criminal Procedure Code) existed in Germany for the last 35 years. Nonetheless, the surveillance of telecommunications is still the subject of controversy and dispute; not only in connection with new forms of communications but also with regard to the extent and grounds of application in “normal” cases of telephone surveillance.

Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case

2021 ◽  
pp. 0003603X2199702
Author(s):  
Anne C. Witt
Keyword(s):  
Data Collection ◽  
Competition Law ◽  
Federal Court ◽  
Digital Platforms ◽  
High Profile ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Constitutional Right ◽  
Abuse Of Dominance

In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.

Die Prüfung der Zahlungsunfähigkeit mittels Algorithmen

2022 ◽  
Author(s):  
Thomas C. Fallak
Keyword(s):  
Artificial Intelligence ◽  
Statistical Methods ◽  
Federal Court ◽  
Digital Analysis ◽  
Medium Term ◽  
Insolvency Law ◽  
Accounting Data ◽  
Court Of Justice ◽  
Federal Court Of Justice

Even after various decisions of the German Federal Court of Justice on the concept of illiquidity under insolvency law, the methodology of the test remains unclear. This also applies to the justiciability of business forecasts. The thesis examines whether and within what limits testing for illiquidity can be performed by digital analysis of accounting data. It also describes the extent to which short- and medium-term liquidity planning can be supported by quantitative forecasts. Statistical methods as well as approaches from the field of artificial intelligence are described.

scholarly journals Radical men and sympathizing women? Gendered constructions of agency in charges of terrorism in Germany

2021 ◽  
pp. 203228442110602
Author(s):  
Kerstin Eppert ◽  
Viktoria Roth
Keyword(s):  
Criminal Liability ◽  
Federal Court ◽  
Political Agency ◽  
Dominant Male ◽  
Scholarly Research ◽  
Institutional Practices ◽  
The Past ◽  
Court Of Justice ◽  
Federal Court Of Justice

In the past, scholarly research in extremism and terrorism studies tended to analyse women’s engagement with violent ideology-based groups from a normative angle, framing female commitment to radical ideologies and violence as cases of inherent victimization or as instigated by a dominant male. Particularly in the negotiation of women’s transnational support of terror organizations in Syria, gendered frames of political agency have been reproduced in the institutional practices of the judiciary. Taking the case of Germany and four appeals lodged at the Federal Court of Justice between 2015 and 2017 as examples, this article analyses gendered conceptions of agency in argumentation with respect to criminal liability in the context of extremist engagement in Syria. It identifies, first, the gendered construction of defendants before the courts and inherently gendered assumptions about agency and second, a formal organizational understanding in the terrorism clauses as the two underlying problems and suggests that current concepts in terrorism norms at national, EU und international levels deflect the focus on the wider conflict dynamics where civilians’ support to violence is concerned.

Das Verhältnis zwischen Marken- und Lauterkeitsrecht beim Schutz von Unternehmenskennzeichen

2021 ◽  
Author(s):  
Yaotian Chai
Keyword(s):  
Comparative Study ◽  
Hard Rock ◽  
Competition Law ◽  
Federal Court ◽  
Unfair Competition ◽  
Application Domain ◽  
Trademark Law ◽  
Court Of Justice ◽  
Unfair Competition Law ◽  
Federal Court Of Justice

Company signs can be protected by trademark law and unfair competition law. However, can the two legal instruments be applied cumulatively? If the results obtained under the two laws conflict with each other, how can the conflict be resolved? The German Federal Court of Justice has confirmed the principle of cumulative application in the Hard-Rock-Café judgement in 2013. However, in this case, the result under unfair competition law was aligned with that under trademark law. This approach seems doubtful. This comparative study seeks to delimit the application domain of unfair competition law besides trademark law by protection of company signs and to find the appropriate approach by contradictory results.

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