Der bundesverfassungsgerichtliche Schutz vor Räumungsvollstreckung (§§ 765a, 885 ZPO) und das Grundgesetz (Artt. 2 Abs. 2 S. 1, 13, 14 GG)

Abstract

The Federal Constitutional Court of Protection against Empatrilation (Sections 765a, 885 ZPO) and the Basic Law (Art. 2 Para. 2 S. 1, 13, 14 GG)

The contribution deals with the protection of the lives and health of the debtor in the enforcement in the area of ​​tension between the GG and ZPO, which is not only an exciting topic for legal dogmatics: It is of particular importance for the (enforcement) legal practice that protection against enforcement of the evacuation has been increasingly differentiated in recent years by the case law of the Federal Constitutional Court. The (Chamber -) ‌ Decision of the BVerfG of May 15, 2019 (Az.: 2 BvR 2425/18, NJW 2019, p. 2012 ff.) It can be seen that the practical explosiveness of the protection of life in the enforcement of clearance is primarily designed in the basic problem of "Schuldnerschutzen QUA constitutional law": Procedure law general clauses such as § 765a ZPO are constitutionally "enriched" and connected to federal constitutional judicial requirements. In this context, it should be pointed out on the (Senate -) judicature of the BVerfG for the enforcement of the clearance (see in particular BVerfGE 52, 214 ff.), Which forms the framework and benchmark for the current (chamber) case law. Not only (procedural) ‌rechts -dogmatic, but also in particular, this often leads to unsatisfactory solutions for the enforcement creditor and to implementation problems for the specialist courts. Therefore, the procedural dimension of constitutional debtor protection - in the area of ​​tension between constitutional law and (civil -) ‌ procedural law - is the subject of more detailed scientific consideration. As a result, a contribution to problem definition in a reflection can be made on the different “functions” of the state wax bound by Art. 1 Para. 3 GG. This means for the ratio of constitutional and specialist jurisdiction according to art. 92, 93 GG: Insofar as the civil procedural enforcement protection (§ 765a ZPO) is regulated in accordance with the constitutional law and is also used properly, the further question arises as to whether and to what extent for a separate ("direct") consideration of constitutional requirements, such as B. the principle of proportionality, still remain room.