Digitalization & Employment Law. A Critical Analysis of § 623 BGB


Term Paper, 2020

35 Pages, Grade: 1,0


Excerpt

Table of Contents

List of Abbreviations

List of Tables

1 Introduction

2 Methodology

3 § 623 BGB and its purpose
3.1 Implementation and consequences of the Directive 1999/93/EC on the written form in the BGB
3.2 Regulation (EU) No 910/2014 and it´s aim

4 Overview of important formal requirements in labor law

5 Simplification proposals

6 Summary of the survey results

7 Conclusion

Appendix

Survey Results

Bibliography

List of Abbreviations

AGG Allgemeines Gleichbehandlungsgesetz (General Act on Equal Treatment)

AÜG Arbeitnehmerüberlassungsgesetz (Temporary Employment Act)

BBiG Berufsbildungsgesetz (Vocational Training Act)

BetrVG Betriebsverfassungsgesetz (Works Constitution Act)

BGB Bürgerliches Gesetzbuch (German Civil Code)

e.g. exempli gratia (for example)

et al. et alii (and others)

MuSchG Mutterschutzgesetz (Maternity Protection Act)

NachwG Nachweisgesetz (Law of evidence)

PSVaG Pensionssicherungsverein (Pension Security Association)

TzBfG Teilzeit- und Befristungsgesetz (Part-time and fixed-term law)

ZPO Zivilprozessordnung (German Code of Civil Procedure)

List of Tables

Table 1: § 623 BGB German - English

Table 2: § 126 BGB German - English

Table 3: § 126 a BGB German - English

Table 4: § 126 b BGB German - English

Table 5: Overview of important formal requirements in labor law

Table 6: Is the § 623 BGB still up-to-date?

1 Introduction

Due to the current situation, the worldwide corona pandemic, the world of work is becoming increasingly unbounded. Employers and employees gradually see the advantages of home office and “New Work”.1 The pandemic forced companies and employees to organize their new work environment quick, which sometimes ended up in in a disorganized and chaotic way. If new forms of work are implemented in a planned manner in the future, all sides can benefit even more. The crisis, in general, holds plenty of opportunities to set a new course for the future of work.

On the long run authorities will have to support the upcoming requirements of employees and employers with adjusted rules and regulations.

An essential part of the employment cycle for employees and employers are terminations and sometimes even separation agreements. During this assignment the article § 623 BGB will be critically analysed, because the article regulates the formal requirements of terminations and separation agreements.

To gain a general overview the touched paragraphs of the German Civil Code, shortened to BGB, will be included in the assignment in the original language and the latest translation into English.

2 Methodology

In the course of the assignment, directives and regulations of the European Union and the European Council are looked at more closely as a basis. In addition, the resulting draft laws and amendments to laws, especially regarding paragraphs § 623 and §126 a BGB, are examined in more detail. Furthermore, court rulings on the strict observance of the written form according to § 623 BGB are given as examples. In addition, a survey on digitisation and labour law was conducted. The results will be presented in the conclusion part of the assignment.

3 § 623 BGB and its purpose

Before summarizing the purpose of the § 623 BGB the paragraph itself is introduced in its current form:

Table 1: § 623 BGB German - English

Abbildung in dieser Leseprobe nicht enthalten

The norm was inserted by Art.2 of the “Law on the Simplification and Acceleration of Labor Court Proceedings” (Labor Court Acceleration Law) on 30th March 2000 and was amended on the 21st December 2000 with the removal of the words “sowie die Befristung” in English: “as well as the time limit”. This part of the paragraph refers to fixed-term employment contracts, which are subject to special requirements. For the right to set a time limit to a labor contract, the written form is now regulated separately in § 14 IV TzBfG.3

The latest change - 13th July 2001 – in the § 623 BGB has excluded the possibility of replacing the written form with the electronic form for terminations and cancellation agreements in accordance with § 126 III BGB.4 No changes were made to this paragraph since.

The legislator's aim in ordering the obligatory form requirement in § 623 BGB is to ensure the highest possible degree of legal certainty and at the same time to relieve the burden on the labor courts. It is intended to avoid unproductive legal disputes as to whether a dismissal has been given at all or to make the corresponding collection of evidence considerably easier.5 § 623 shall have a warning function and should prevented that employers and employees terminate the employment relationship though a termination or a separation agreement thoughtlessly. The legislator was the opinion that the electronic form did not have yet the same warning function, as the written form, therefore he excluded the electronic form in § 623 BGB.6

The formal requirement also serves the purpose of clarification. By adhering to the written form, the employer or the employee clarifies that a notice of termination is actually declared. In the case of a separation agreement, the parties make clear that the employment relationship has been terminated by mutual consent. Furthermore § 623 BGB has an evidentiary function, because the notice of termination and the dissolution agreement are made reliably provable. In addition, § 623 BGB serves the purpose of clarifying the content of the separation agreement. The article provides assurance that both parties are clear about the content of the agreement. Primarily, however, the employee is protected against termination of the employment relationship, including by an ill-considered termination of his own employment.7

The objective of the strictness of form introduced in § 623 BGB is to establish itself first through the traditionally known written form. The legislator has not ruled out the possibility of allowing electronic form in accordance with § 126 III BGB in the future.8

The latest decision by the 6th Senate has explicitly clarified that § 623 BGB is not limited to the clarification and evidence function, but also aims to protect the contracting parties from rushing into the matter. The paragraph has therefore an equally important warning function.9

The § 623 BGB is referring to the § 126 BGB, in which the written form is defined. Next to that the § 126a and § 126b BGB will introduce the electronical from and the text from.

3.1 Implementation and consequences of the Directive 1999/93/EC on the written form in the BGB

The directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures initiated the change in § 126 III, which now allows the replacement of the written form though the electronical form. But leaves the opportunity for other paragraphs to exclude them individually from that opportunity.

The objective, contained in the drafted law by the Bundesregierung, stated that the current legal situation at this time did not take sufficient account of the developments in modern legal transactions, especially regarding the current formal requirements written down in the BGB. At this time the BGB has been based on the principle of freedom of form, broken down by individual mandatory formalities for which forms fixed on the medium of "paper" are provided in principle: written form, notarization and public certification for about 100 years. It was a matter of adapting private law to developments in the field of information and communication technologies, with attention being paid to the requirements arising for electronic legal transactions.10

The legal consequence according Art. 5 (1) is that all member states must ensure that secure signatures meet the legal requirements for a signature in relation to data available in electronic form in the same way as handwritten signatures meet those requirements in relation to data available on paper.11

[...]


1 See: Umbs, C., Arbeiten nach Corona: Ist Homeoffice das Modell der Zukunft?, 2020.

2 Bürgerliches Gesetzbuch (BGB) 12. 06.2020.

3 Bundesamt für Justiz, German Civil Code BGB, 2020, § 623.

4 Deutscher Bundestag, Bundesgesetzblatt Deutscher Bundestag Gesetzes zur Anpassung der Formvorschriften des Privatrechts und anderer Vorschriften an den modernen Rechtsgeschäftsverkehr, 2001.

5 See: Backhaus, L., Kündigungsrecht, 2017, marginal no. 1.

6 See: Entwurf eines Gesetzes zur Anpassung der Formvorschriften des Privatrechts und anderer Vorschriften an den modernen Rechtsgeschäftsverkehr (14/4987) vom 14.12.2000.

7 See: ibid.

8 See: ibid.

9 See: Bundesarbeitsgericht (6. Senat) LAG München, 2009, 242/09.

10 See: Entwurf eines Gesetzes zur Anpassung der Formvorschriften des Privatrechts und anderer Vorschriften an den modernen Rechtsgeschäftsverkehr (14/4987) vom 14.12.2000.

11 See: Prof. Dr. Uwe Blaurock, Jürgen Adam, Elektronische Signatur und europäisches Privatrecht, 2001, p. 97.

Excerpt out of 35 pages

Details

Title
Digitalization & Employment Law. A Critical Analysis of § 623 BGB
College
University of applied sciences Frankfurt a. M.
Grade
1,0
Author
Year
2020
Pages
35
Catalog Number
V934122
ISBN (eBook)
9783346274632
ISBN (Book)
9783346274649
Language
English
Tags
BGB 623, Kündigung, Schriftform, Termination, Seperation Agreement, German Civil Code
Quote paper
Samantha Kim Schönhaber (Author), 2020, Digitalization & Employment Law. A Critical Analysis of § 623 BGB, Munich, GRIN Verlag, https://www.grin.com/document/934122

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