Definition and significance of the FGG
The abbreviation FGG stands for the “Law on Matters of Voluntary Jurisdiction” and refers to a central law of German procedural law, which regulated the procedures of what is known as voluntary jurisdiction. The FGG determined the content, process, and jurisdiction in non-contentious judicial proceedings and was considered a fundamental legal provision for numerous areas of law, such as guardianship, probate, association, land register, registry, agricultural, and custodial law.
The FGG came into force on October 1, 1950, and was fully replaced by the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG) as of September 1, 2009. Nevertheless, the FGG still holds significance in historical and legal academic contexts as well as in older proceedings.
Regulatory scope and areas of application of the FGG
General purpose of regulation
The FGG regulated those judicial proceedings in which there was no real dispute between parties, but rather judicial protection of rights was to be guaranteed through the exercise of judicial care and supervision. Proceedings under voluntary jurisdiction according to the FGG were characterized not by disputes between adversaries (as in civil litigation), but by the protection of private and public interests as well as legal certainty in particular areas of life.
Key types of proceedings
The FGG applied in particular in the following areas:
- Guardianship law (formerly guardianship law): Regulation of the appointment, handling, and supervision of guardians and custodians.
- Probate proceedings: Judicial processing of inheritance cases, execution of wills, issuance of certificates of inheritance.
- Registry law: Proceedings concerning association registers, commercial registers, and cooperative registers.
- Land register law: Registration and correction of property rights.
- Custody law: Approval of placement in psychiatric facilities.
- Other proceedings: Adoption and custody orders, agricultural matters, as well as other matters expressly allocated by law.
Proceedings under the FGG
Principles of procedure
The FGG differed in essential respects from the “contentious” or normal civil procedure (regulated by the Code of Civil Procedure, ZPO). The key principles were:
- Initiative of the court (Principle of ex officio investigation): The court established the facts of the case on its own initiative and was not bound by applications from the parties.
- Expediency requirement: Proceedings should be conducted quickly and informally.
- Right to be heard: The affected person was generally to be heard.
- Remedies: Judicial decisions under the FGG could generally be challenged by complaint or further complaint, unlike appeals or revisions in contentious civil law.
Status of parties
The FGG used the term “participants” instead of the term ‘party.’ Participants were those persons or entities whose rights or interests were affected by the proceedings.
Types of proceedings and jurisdiction
The FGG recognized various types of proceedings:
- Application proceedings: The court acts upon the application of a participant.
- Ex officio proceedings: The court may also act on its own initiative (“ex officio”).
As a rule, the local courts had local and subject-matter jurisdiction; in some cases (such as agricultural matters) specialized chambers were also responsible.
The FGG in transition: Replacement by the FamFG
Effective September 1, 2009, the FGG was replaced by the FamFG (Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction). The aim of this reform was to modernize the procedural law in the relevant specialist areas, to unify structures, and to strengthen legal protection options, particularly in family and guardianship law.
Transitional law
For proceedings initiated by August 31, 2009, the rules of the FGG generally continued to apply unless otherwise provided. In practice, this meant transition periods and sometimes parallel application of the FGG and the FamFG had to be observed.
Structure and systematics of the FGG
Organization of the statutory text
The FGG most recently included 110 paragraphs, structured into a general collection of provisions (§§ 1-16 FGG) and special provisions relating to individual groups of proceedings (§§ 17-110 FGG). The structure was oriented around the specific legal fields and the particular characteristics of judicial procedures.
Key paragraphs at a glance
- § 1 FGG: Fundamental provisions on the application of the FGG.
- § 12 FGG: Principle of free assessment of evidence and the court’s power to investigate.
- §§ 19-38 FGG: Regulations on guardianship and custodianship matters.
- §§ 43-60 FGG: Provisions on probate matters.
- § 66 FGG: Regulations on complaint as a legal remedy.
Legal effects and practical significance
For decades, the FGG was the central procedural law for numerous important matters. It significantly influenced the development of non-contentious judicial procedures and contributed to legal certainty and judicial oversight in sensitive areas of life. The procedures codified in § 19 FGG et seq. in guardianship law (formerly guardianship law) were, for instance, pioneering for the physical and psychological protection of persons in need.
Following the replacement of the FGG by the FamFG, the provisions of the FGG are now only applicable in exceptional cases (e.g., old cases or specific disputes in transitional law). Nevertheless, the law continues to be of significance from a legal-historical and systematic perspective.
Summary and outlook
The FGG stood for a comprehensive and multifaceted body of procedural law in the field of voluntary jurisdiction in the Federal Republic of Germany. During its more than fifty years in force, the FGG set the standard for numerous fundamental types of proceedings, and its principles and structures had a lasting impact on legal practice. It laid the foundation for today’s FamFG.
With the entry into force of the FamFG, the FGG was repealed, but it remains of significant importance for the historical assessment and understanding of the development of German procedural law. An in-depth consideration of its legal foundations, areas of application, and effects contributes to understanding both the present and past legal situation.
Frequently asked questions
When does the Act on Voluntary Jurisdiction (FGG) apply?
The FGG always applies whenever certain court proceedings require a special, non-contentious order. In particular, this concerns matters that are not subject to contentious civil procedure law but instead fall under the so-called voluntary jurisdiction. Typical areas of application were especially proceedings in probate, guardianship, association, land register, and registry matters as well as guardianship law. These were always proceedings without contentious parties in the classic sense, but rather ones in which the court acts ex officio or upon application by an individual—for instance, to establish rights, make registry entries, or organize legal relationships. Since the introduction of the FamFG in 2009, the FGG has largely been superseded, but continues to apply on a transitional basis to certain old proceedings until its final elimination.
What role does the court play in proceedings under the FGG?
In voluntary jurisdiction proceedings under the FGG, the court not only plays a decisive role but also a supervisory and investigative one. Unlike the traditional civil procedure, to which the party presentation principle applies, the court in FGG proceedings is obligated to establish the facts of the case ex officio (principle of ex officio investigation). This means the court is not bound by the applications or submissions of the participants but may carry out investigations and take evidence on its own initiative. The aim is to render an appropriate and comprehensive decision in the interest of all participants.
How are “participants” defined and treated under the terms of the FGG?
Participants within the meaning of the FGG are all persons whose rights or interests may be directly affected by the proceeding. This includes applicants, persons against whom an application is directed, as well as third parties whose legal position is involved. The FGG contains explicit provisions on how and when these participants are to be heard, included in proceedings, and what participatory rights they have. Participants always formally acquire participant status, which includes, among other things, the right to inspect court files, to be heard, and if necessary to file legal remedies.
What legal remedies are available in FGG proceedings?
Against decisions made based on the FGG, participants regularly have certain legal remedies available. The chief remedy is the complaint (§ 19 FGG) brought before the next higher court. Another instance is the further complaint, admissible in case of a violation of the legal path. The remedies serve to enable judicial decisions to be reviewed for legality and substantive correctness. Specific deadlines and formalities apply, which may differ from those in the Code of Civil Procedure.
To what extent do the provisions of the ZPO apply in FGG proceedings?
The provisions of the ZPO apply in FGG proceedings only to the extent that the FGG expressly provides or deems the corresponding regulations necessary. In principle, the FGG established an independent, less formalized procedural regime. Nevertheless, in certain situations (e.g., taking evidence), the FGG refers to regulations in the ZPO if this appears useful to complement or further develop the FGG. The relationship is therefore subsidiary, meaning the special rules of the FGG take precedence.
Does the FGG procedure include oral hearings?
In contrast to the ZPO, the FGG did not mandate holding oral hearings in all cases. The court could decide at its discretion whether an oral hearing or hearing of participants was necessary. In certain circumstances—for example, in guardianship or custody cases—a personal hearing was required by law. This ensured that decisions were made as appropriately as possible and according to the welfare of all participants.
How do orders and decisions under the FGG differ from judgments in civil proceedings?
Decisions in voluntary jurisdiction proceedings are called “orders” (Beschlüsse), not judgments. They are generally required to provide less detailed reasoning than judgments, but must state the main grounds leading to the decision. Orders can be enforceable immediately and allow—as described above—for the use of remedies (especially the complaint). The formal requirements are also less strict than those in contentious proceedings.
