Türk-Alman Üniversitesi Hukuk Fakültesi Dergisi
Yazarlar: Karl-heinz OEHLER
Konular:Hukuk
Anahtar Kelimeler:German Liability Law,Compensation for Immaterial Impairments,Compensation Claims in the Case of Death,Surviving Dependants
Özet: In July of 2017, the Bundestag adopted the Act on the Introduction of a Claim to “Hinterbliebenengeld:” Whosoever is liable, in the context of fault-based liability or strict liability, for the death of a person, is to pay to the surviving dependants of that person adequate compensation for their mental suffering. The provisions signed into law, so unremarkable at first sight, constitute an expansion of the claim to compensation for immaterial impairments: Pursuant to the customary German law of torts, the surviving dependants of a person killed in an accident or by a criminal offence are entitled solely to compensation of the material damages they have suffered, such as a reimbursement of the funeral costs. By contrast, the German Civil Code (Bürgerliches Gesetzbuch – BGB) did not provide for any compensation for pain and suffering to be paid to the surviving dependants. This restrictive legislature became a topic of intensifying criticism, which objected that this refusal constituted contempt for the legal interest of life – for example if the parents of a bicycle-rider who had been killed were granted compensation for the bicycle that had been destroyed, without being awarded any financial recognition for their mental suffering. Increasingly, the arguments also came from the perspective of comparative law: The German legal system was nearly unique in Europe by staunchly refusing to take this approach. The Act that has now been adopted grants surviving dependants who had a relationship of particular closeness to the person who was killed adequate compensation for their mental suffering. Such a claim will be given not only in cases in which a person is culpable of killing someone; it exists also in the case of strict liability, i.e. liability regardless of fault. However, the Hinterbliebenengeld paid to the surviving dependants is restricted to non-contractual liability (unless the matter is governed by aviation law). The legislature has not defined any framework governing the amount of the compensation. This corresponds to the legal situation given in the majority of continental European legal systems; nonetheless, it is not without its problems to simply unload this matter on the courts. The legislative process as it played out in the Bundestag was smooth. When the Committee on Legal Affairs of the German parliament held a hearing, a number of experts once again raised the familiar concerns. However, the Committee, unfazed, approved the bill, and in fact did so unanimously. – Other than has been the case all too often in liability law, it was not the courts who relegated to history the outmoded principles, it was the legislature in complying with its responsibility. In light of the many years of preparation and debate, the lack of a significant public reaction is somewhat surprising.