Die Prüfung der Zahlungsunfähigkeit mittels Algorithmen

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.

A Judicialização da Saúde no Ordenamento Jurídico Brasileiro no Contexto da Pandemia COVID-19

Health belongs to one of the most fundamental rights that one has, being elementary and necessary for one’s own life and dignity. The Federal Constitution of 1988 defines health as a right for everyone, which represents the reason why all people should benefit from Brazil’s national health system (SUS). As long as the current context of the COVID-19 pandemic is concerned, it is certainly clear that efforts to save lives all over the world have been made. Because of the precariousness of the public health system, combined with the insufficiency of providing free medication, medical treatment, surgical procedures, patient transport system, as well as access to the intensive care unit, the phenomenon “judicialization of health” has emerged. This article aims to discuss aspects involving health care in Brazil. It will focus on the most current decisions made by the federal court of justice in the context of the pandemic and examine the results and consequences of such decisions, as well as their contribution to a new point of view towards our social welfare. Policies to prevent diseases are needed in order to achieve the right to health. For this, the exploratory type methodology is used, of qualitative nature, with jurisprudential analysis combined with bibliographic review.

NSU CASE COVERED UP AND LEGALLY CLOSED: IS IT POSSIBLE TO AVOID SOCIAL AND POLITICAL REPERCUSSIONS?

The neo-Nazi Nationalist Socialist Underground (NSU) terrorist group killed ten people in Germany between 2000-2007. Eight of the victims were members of the Turkish community of more than three million people living in Germany. Beate Zschäpe, Uwe Mundlos, and Uwe Böhnhardt were the nucleus of the National Socialist Underground NSU . Two of them, Uwe Mundlos and Uwe Böhnhardt, had killed themselves in the operations. Beate Zschäpe was the only core member of the NSU stayed alive when NSU trial began. Along with Beate Zschäpe, the four suspected accomplices deemed to be in the close periphery of the NSU trio, including Ralf Wohlleben and André Eminger were tried and received varying degrees of imprisonment. Germany’s highest court of appeals, which is Federal Court of Justice, had rejected appeals by Beate Zschäpe and other two convicted accomplices on 19 August 2021. The Federal Court has recently upheld the exceptionally light prison sentence of two and a half years that Andre Eminger received in 2018. Thus, the Munich court's verdict has become fully legally binding through this decision. It is reported that the high court did not find any legal errors or gaps in the arguments of the Munich court for the verdict and rejected appeals. Ten years after the NSU Neo-Nazi terror cell was exposed, with this decision of the German Federal Court of Justice, the NSU case was legally concluded and closed in its entirety. We have already explained in our previous analyses that racism and xenophobia, Islamophobia is on the rise in Germany and that we, as AVİM, consider this fact a worrying development. We should underline that the totality of court decisions regarding the NSU murders reinforced the perception that racism, xenophobia, and Islamophobia did not receive the punishment they deserved in Germany and that the true dimensions of the NSU organization wilfully be left unclarified.

Judgment on Foreign Soldiers' Immunity for War Crimes Committed Abroad (BGH)

On January 28, 2021, the German Federal Court of Justice, or Bundesgerichtshof (BGH), Germany's highest court of ordinary jurisdiction, delivered its judgment in Case 3 StR 564/19 pertaining to questions of universal jurisdiction over international crimes and the extent to which foreign soldiers would be barred from prosecution in Germany based on claims of (functional) immunity for war crimes committed abroad. The decision strikes at the heart of a debate where such exceptions to immunity (ratione materiae) are yet to be uniformly agreed upon at an international level; it also comes on the verge of a number of related judgments that are pending both in German and other European courts. In the present case, the BGH held that according to the general rules of international law, criminal prosecution in Germany for war crimes committed abroad would not be precluded based on the notion of functional immunity, “when the acts have been committed by a foreign, lower-ranking defendant in the exercise of foreign sovereign activity.” Neither the BGH nor Germany's supreme guardian of the “Basic Law,” the Federal Constitutional Court, or Bundesverfassungsgericht (BVerfG), has previously pronounced itself on questions of functional immunity in criminal proceedings.

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

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.

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

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.

Desecration of Corpses in Relation to § 8(1) no. 9 German Code of Crimes Against International Law (VStGB): The Judgment of the German Federal Court of Justice (Bundesgerichtshof) of July 27, 2017–3 StR 57/17

As a reaction to the killing and beheading of two soldiers in the Syrian Civil War, the German Federal Court of Justice (BGH) set a milestone in the interpretation of § 8(1) no. 9 of the German Code of Crimes against International Law (VStGB). The judges confirmed the conviction of a young German citizen with Syrian roots, Aria L., who had been tried and convicted before the Higher Regional Court of Frankfurt am Main (Oberlandesgericht (OLG) Frankfurt am Main). Within the certiorari, the BGH reviewed whether the statute conformed with the principle of legality found within the Grundgesetz (GG), Germany’s constitution. The Court held that the corpse of a person killed is protected from desecration under humanitarian law pursuant to § 8(1) no. 9 VStGB, the equivalent to Article 8(2)(b)(xxi) and (3)(ii) of the Rome Statute for the International Criminal Court (ICC). Reviewing this particular decision, it was determined that under the circumstances of a non-international armed conflict, beheading someone, placing the head on a metal rod, and taking pictures afterward in order to upload them onto social media is gravely humiliating and degrading. The head is incomparably the part of the body that identifies a person. Furthermore, it is irrelevant whether the perpetrator had any physical influence over the person. In addition, war crimes can be committed in a non-international conflict, which should, however, be treated equally as an international conflict. This outcome triggered diverse reactions amongst legal scholars, especially due to the extension of the understanding of a “person” who is to be protected under humanitarian law.

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

The 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.

Das Verhältnis zwischen Marken- und Lauterkeitsrecht beim Schutz von Unternehmenskennzeichen

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.