The constitutional complaint (Vb) of the appellant (Bf), which has been used subrogated to the rights of social assistance fund to pay maintenance for their dependent mother, was successful.
lifted the First Division of the Federal Constitutional Court, the verdict desLandgerichts (LG) in Duisburg, since the letter in its protected by Article 2 paragraph 1GG financial planning freedom violated. The matter was referred back to the LG. is because of the underlying facts of the press release No. 10/2005 28th January 2005 referred.
The decision based on the following considerations:
imposed by the letter from LG obligation to accept an interest-free loans and for granting a mortgage on ihrenMiteigentumsanteil lacks any legal basis and is in stark contradiction to all the application brought standards. The court hatsich with his decision binding to law and justice entzogenund thus protected by Article 2 paragraph 1 GG BFIN freedom of action not by the constitutional Limits legitimate way of ordering.
first The performance of the letter is - in the opinion of the LG with the first loan offered by the social assistance fund, after the Todihrer mother emerged. To make the court a Unterhaltsanspruchfür a past period with sufficient capacity has Bfbegründet whom it is only after the elimination of the need of the mother occurred. This contradicts the letter and structure already in denhier relevant maintenance and social assistance regulations. EinUnterhaltsanspruch to § 1601 BGB is only when need when the creditor and the debtor's performance are present simultaneously. Also § § 90, 91 BSHG that dieÜberleitung of maintenance permit, available to the Hilfeempfängerim period of assistance going from a zeitlichenKongruenz made between need and performance. DieHeranziehung BSHG of § 89 in support of a maintenance claim is flatly contradicted by the wording of this standard and to their systematic integration into the social fabric of legal aid.
second The design of the LG is also contrary to the purpose of the standards applied. The principle of the social assistance law, a legal right aufHilfe - albeit against a claim for maintenance only in the second - to admit is contrary with the aid of a welfare agency granted a loan do not by civil law given to maintenance of social assistance to do legally. This legal structure would ultimately bring social benefits claims entirely in the loss. For if the debtor could be made using the performance of a loan, it would be in the hands of the social assistance fund, do not allow a social welfare entitlement come into play. This would mean that a needy person would fail but even with the enforcement of a maintenance claim against a non-performance debtor, the welfare agency, however, justified by a corresponding credit offer the right to maintenance and thereby from his obligation could deliver social assistance grant. It would be
also bid against the welfare state, which calls to let people get a right aufstaatliche help to assure ye subsistence.
third Last, the interpretation of the LG and the will of the legislature. He gave the parents is not against the child support is not only subordinated weight (§ 1609 BGB), but also the extent of the obligation significantly reduced compared to the requirement for granting child support (§ 1603 para 1 BGB). The nachrangigeBehandlung of the parents is not equivalent to the fundamentally different situation in which the maintenance obligation comes into play in each.
The duty of parents is not, this is usually the case when the children have long since established their own families dependent claims, see their own children and spouses exposed and have zusorgen for themselves and for their own retirement account. This now takes a maintenance requirement of one or both parents added in age, with their income, especially their pensions, particularly in nursing care can not be covered. Sichkumulierenden these requirements, the legislature has taken into account by ensuring added that the child remains a his own life also appropriate maintenance.
by the legislature of the parents is not assigned, is very weak position relative by the recent development of legislation ausjüngerer still supported. With the gradual reduction of benefits in the statutory pension scheme and the introduction of statutory funded private pensions ("Riester-Rente"), the legislature has emphasized the responsibility of individuals to save for his pension in addition to statutory pension insurance rechtzeitigund sufficient. This must be the definition of a dependent child subject to remaining adequate maintenance are considered. In particular, however, the legislature reintroduction of basic security in old age and disability from January 1, 2003, the Basic Security Act and since 1 January 2005durch, § § 41 ff SGB XII shows that the burden of adult children by requiring parents to pay maintenance, taking into account their own situation should be kept within limits.
Judgement of 7 June 2005 - 1 BvR 1508/96 -
Karlsruhe, 7 June 2005
