KS DH Juris cheat sheet

Hierarchy of norms (Kelsen): constitution > statute > decree > ordinance; lower norm valid only if consistent with higher norm.

Statutory interpretation methods in civil law tradition: literal (grammatical), systematic, historical, teleological; no strict binding precedent, but settled case law (ständige Rechtsprechung) has persuasive force.

Analogy (Analogie) is permitted only where the legislature left an unintended gap (planwidrige Regelungslücke) and similarity of interests justifies extension; prohibited in criminal law (nullum crimen sine lege).

Teleological reduction restricts an over-broad norm to its purpose; converse of analogy.

Customary law requires long-standing practice (longa consuetudo) plus opinio iuris; subsidiary to statute.

General principles (Treu und Glauben, good faith) fill gaps but cannot override clear statutory text.

EU law: regulations directly applicable; directives require transposition and have direct effect only against the state (vertical) when clear and unconditional; primacy over conflicting national law (Costa v ENEL).

Judicial precedent in civil law systems: no stare decisis, but higher court decisions are followed to avoid reversal; constitutional court decisions bind all state organs.

Sources ranked: constitution, ratified international treaties, statutes, subordinate legislation, collective agreements, custom, general principles.

Rule of law requires legality of administration: administrative acts must have a statutory basis (Vorbehalt des Gesetzes) and respect proportionality.

Proportionality test: legitimate aim, suitability, necessity (least restrictive means), proportionality stricto sensu (balancing).

Fundamental rights have vertical effect against the state and, in many systems, indirect horizontal effect through general clauses (e.g., good morals).

Administrative act (Verwaltungsakt) is a unilateral, authoritative decision by an authority on a concrete matter; requires competence, procedure, form, and lawful content.

Grounds for annulment: lack of jurisdiction, procedural defect, lack of statutory basis, disproportionate measure, error of law or fact.

Judicial review of administration: courts examine legality, not expediency (opportunity); discretion (Ermessen) reviewed for abuse only.

Constitutional review: abstract and concrete norm control; individual constitutional complaint after exhaustion of ordinary remedies.

State liability: compensation for unlawful administrative acts requires breach of a duty owed to the claimant, fault, and causation.

Emergency powers must be time-limited, subject to parliamentary control, and cannot suspend core non-derogable rights.

Contract formation: offer (binding, sufficiently definite) plus acceptance; revocation of offer must reach offeree before or simultaneously with the offer.

Defects of consent: mistake (error), deception (dolus), duress (metus); rescission restores parties to pre-contractual position (restitution).

Breach of obligation: debtor liable for fault unless exempted; remedies are specific performance, cure, damages, and termination.

Damages: expectation interest (positive interest) vs reliance interest (negative interest); contributory negligence reduces the claim.

Property: ownership is absolute and exclusive; acquisition by transfer requires valid title plus delivery (or registration for land).

Possession vs ownership: possessor has factual control; owner has legal right; bona fide possessor may acquire title to movables (good-faith acquisition).

Family: marriage requires mutual consent and capacity; divorce grounds vary; matrimonial property regimes are community or separation of property.

Succession: intestate order typically spouse and descendants first; forced heirship (Pflichtteil) reserves a minimum share for close relatives in many civil law systems.

Prescription (limitation) periods: typical 3 years for ordinary claims, 10–30 years for land and serious matters; running starts on knowledge of claim and debtor.

Legality principle (nullum crimen, nulla poena sine lege): no crime or penalty without a prior, clear statutory basis; no analogy to the detriment of the accused.

Elements of an offence: actus reus (conduct, causation, result) plus mens rea (intent or negligence); intent covers dolus directus, indirectus, and eventualis.

Justification defences: self-defence (proportional response to present unlawful attack), necessity, consent, lawful authority.

Excuses: insanity, duress, mistake of fact; mistake of law generally not excused unless unavoidable.

Attempt: punishable if the offender has directly commenced the offence; voluntary abandonment may exempt from punishment.

Participation: perpetration, instigation (Anstiftung), and aiding (Beihilfe); aiding is typically punished less than perpetration.

Criminal procedure: presumption of innocence; in dubio pro reo; right to counsel; exclusion of evidence obtained by torture or unlawful coercion.

Pre-trial detention requires judicial order, strong suspicion, and a ground (risk of flight, collusion, or serious offence); periodic review.

Statute of limitations bars prosecution after set periods; homicide generally not time-barred.

Jurisdiction: general forum is defendant's domicile (actor sequitur forum rei); special forums for contract, tort, and property.

Pleadings must state claim, facts, and evidence; court may not exceed the parties' requests (dispositionsmaxime).

Burden of proof: claimant proves facts founding the claim; defendant proves facts defeating it (e.g., performance, limitation).

Evidence: documents, witnesses, expert opinion, inspection, party examination; illegally obtained evidence may be excluded.

Judgment becomes res judicata when no ordinary appeal remains; binds parties and successors on the same claim.

Appeal (Berufung) reviews law and fact; revision/cassation reviews law only.

Interim relief: attachment (Arrest) and injunction (einstweilige Verfügung) require claim and urgency; claimant may need to provide security.

Enforcement: enforceable title (judgment, notarial deed) required; bailiff seizes and auctions movable assets; wage garnishment subject to protected minimum.

Arbitration: valid arbitration agreement excludes ordinary courts; award enforceable under New York Convention.

Commercial register: registration has constitutive effect for legal entities (GmbH, AG) and declaratory effect for traders (Kaufleute).

GmbH: minimum capital, limited liability of shareholders to paid-in capital; managing director duty of care; shareholder resolution can remove for cause.

AG: share capital divided into shares; board manages, supervisory board monitors; shareholder liability limited to contribution.

Company director duties: loyalty, care, no conflicts of interest; liability for insolvency delay in filing.

Insolvency opening requires insolvency ground (illiquidity or over-indebtedness); directors must file within statutory period (e.g., 3–6 weeks).

Insolvency ranking: secured creditors (separate satisfaction), then insolvency costs, then ordinary creditors; shareholders last.

Avoidance actions (Insolvenzanfechtung) claw back transactions in the suspect period before opening; periods typically 3 months to 10 years depending on the ground.

Commercial sales: merchant's duty to inspect and notify defects promptly; late notice may bar claims.

Agency: commercial agent (Handelsvertreter) entitled to commission and, on termination, indemnity for client base.

Employment contract: personal dependence, integration into the employer's organisation, and wage; distinguishes from service contract.

Termination: ordinary dismissal requires notice period (statutory or contractual); extraordinary dismissal requires good cause and immediate action.

Protection against dismissal: social selection among comparable employees; special protection for pregnant women, disabled, and works council members.

Working time: maximum daily/weekly hours, rest periods, overtime limits; holiday entitlement statutory minimum (e.g., 4 weeks).

Collective bargaining: union and employer association negotiate collective agreement (Tarifvertrag); directly binding on members, generally extended by declaration.

Works council (Betriebsrat): co-determination in social, personnel, and economic matters; cannot call strikes.

Strike and lockout: lawful strike requires union organisation, peace obligation during collective agreement, and proportionality.

Social security: contributions shared between employer and employee; benefits for sickness, unemployment, pension, and accidents.

Equal treatment: gender, age, disability, religion; burden of proof shifts to employer once prima facie discrimination shown.

Legality of taxation: tax must be based on statute; no tax by analogy to the detriment of the taxpayer.

Income tax: taxable income = income minus deductible expenses; progressive rates; personal allowance.

Corporate tax: separate legal entity taxed on profits; dividends subject to withholding and shareholder-level tax (relief for double taxation).

VAT: taxable supply by a taxable person for consideration; input tax deduction; place of supply rules for cross-border services.

Tax procedure: assessment (Veranlagung), appeal (Einspruch), fiscal court action; suspension of enforcement on security.

Tax avoidance: abuse of legal forms (Gestaltungsmissbrauch) recharacterised; substance over form.

Transfer pricing: arm's length principle for related-party transactions; documentation obligations.

Withholding tax: employer must withhold wage tax; liability for failure to withhold.

Statute of limitations: assessment periods typically 4 years, extended to 10 for tax evasion.

EU sources: primary law (Treaties, Charter), secondary law (regulations, directives, decisions), international agreements, general principles.

Direct effect: regulations, Treaty provisions, and directives (vertical, against state) when clear, unconditional, and deadline passed.

Primacy: EU law prevails over conflicting national law; national courts must disapply conflicting provisions (Simmenthal).

State liability (Francovich): member state liable for damages caused by failure to transpose a directive.

Preliminary reference (Art. 267 TFEU): national court may or must refer questions of EU law to the CJEU; last-instance courts must refer.

Four freedoms: goods, persons, services, capital; restrictions must be justified and proportionate.

International law sources (ICJ Statute Art. 38): treaties, custom, general principles, judicial decisions, teachings.

Vienna Convention on the Law of Treaties: pacta sunt servanda; rebus sic stantibus; invalidity for error, fraud, coercion.

State responsibility: attribution, breach, reparation (restitution, compensation, satisfaction); countermeasures subject to proportionality.

Duty of confidentiality covers all information learned in the mandate; survives termination; exceptions only with consent or statutory duty.

Conflict of interest: lawyer may not represent both parties in the same matter; must decline or obtain informed consent where permitted.

Independence: lawyer must avoid instructions that compromise professional judgment; no fee contingent on outcome in criminal matters.

Client funds: separate trust account; no commingling with firm assets; accurate accounting.

Competence and diligence: accept only matters within competence or with adequate preparation; keep client informed.

Advertising: permitted if factual and not misleading; no solicitation of vulnerable persons.

Duty to court: no false statements, no obstruction; must disclose adverse authority in some jurisdictions.

Fees: written fee agreement; reasonableness review; no success fees in criminal defence.

Disciplinary liability: breach of professional rules may lead to reprimand, fine, suspension, or disbarment.