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Violence protection, dr

Violence protection, dr

DR. JÖRG SCHRÖCK

violence protection

When the crisis escalates .

GUIDE – FIRST AID
Practical tips at the beginning of the breakup

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I. Situation: Victim protection in the domestic area

The came into force on 01.01.2002 Violence Protection Act serves the civil protection of victims of violence and follows the principle "Offender leaves, victim remains". In family law matters is the Apartment leasing claim in § 2 GewSchG of importance. This adds to the possibility of a procedure apartment allocation because of separation according to § 1361b Abs.1 BGB: see -> ABSTRACT from the marriage apartment. An application for housing transfer for victim protection On the one hand leads to the goal much faster, but on the other hand is a drastic measure.

II. The Violence Protection Act

The Violence Protection Act was created to protect against assaults, enforcements, restrictions on freedom and rapid state intervention. The protected group of persons is not limited to spouses, but extends to all victims, the im domestic area an act within the meaning of § 1 GewSchG had or must endure. A mere coercion does not trigger measures according to the GewSchG.

OLG Frankfurt, Decision of 15.05.2012 – 4 WF 115/12
No protection against violence "pure" coercion

(Quote) "Infringement is any not entirely minor impairment of physical freedom of movement (see OLG Brandenburg, FamRZ 2006, 947 = MDR 2006, 157, Heinke, § 1 GewSchG, § 9, Brudermüller in Palandt, BGB, 71st ed., 2012, § 1 GewSchG, paragraph 5). Not by § 1 Abs. 1 GewSchG protected is the general freedom of action, why, for example coercion, not with the Violation of any of the legal interests specified in § 1 (1) or (2) GewSchG are not claims under the Violence Protection Act, but only – before the civil court to be asserted – general injunctive relief under §§ 1004, 823 paragraph 2 BGB in conjunction with § 240 StGB are given (see OLG Rostock, FamRZ 2007, 921; OLG Hamm, FamRZ 2012, 645 = BeckRS 2011, 25808; Heinke, § 1, § 9, Krüger in Munich commentary, § 1 GewSchG, § 11, Brudermüller in Palandt, § 1 GewSchG, § 4 with reference to BT -Drs. 14/5429, p. 18)."

§ 1 Judicial measures to protect against violence and enforcements

(1) If a person intentionally violates another person’s body, health or freedom unlawfully, the court shall, at the request of the injured person, take the necessary measures to prevent further injuries. The orders are to be limited; the deadline can be extended. In particular, the court may order that the perpetrator refrain from doing so,

  1. to enter the apartment of the injured person,
  2. to be within a certain radius of the injured person’s home,
  3. to visit other places to be determined, where the injured person regularly resides,
  4. To connect to the injured person, also using remote communication means,
  5. Encounter with the injured person,

as far as this is not necessary for the exercise of legitimate interests.

(2) Paragraph 1 shall apply mutatis mutandis if:

one person has unlawfully threatened another with an injury to life, body, health or freedom or

a person unlawful and intentional

(a) infiltrates another person’s property or their pecuniary possession; or (b) harasses another person unreasonably by repetitively reenacting or persecuting it using the means of distance communication.

In the case of sentence 1 (2) (b), unreasonable harassment does not exist if the act serves the exercise of legitimate interests.

(3) In the cases referred to in the first sentence of paragraph 1 or paragraph 2, the court may order the measures referred to in paragraph 1 even if a person has committed the offense in a state of mental disorder which excludes the free will of discretion temporarily dispensed by mental beverages or similar means.

§ 2 Provision of a shared apartment

(1) If the injured person at the time of an act under § 1 para. 1 sentence 1, also in connection with para. 3, with the perpetrator a permanently created common household out, so they can demand of this, her the jointly used Apartment for sole use.

(2) The duration of the letting of the dwelling is to be limited if the injured person with the offender owns the property, the hereditary building right or the usufruct on the property on which the dwelling resides or the injured person with the offender rented the dwelling Has. If the perpetrator, alone or in conjunction with a third party, owns the property, hereditary building right or usufruct on the property on which the apartment is located, or if he has rented the apartment alone or together with a third party, the court shall assign the letting to the To limit the duration of the injury to a maximum of six months. If the injured person was unable to obtain reasonable housing for reasonable other reasons within the time limit set by the court pursuant to the second sentence, the court may extend the period by a maximum of six months, unless the perpetrator or the third party have an overriding interest. Sentences 1 to 3 apply mutatis mutandis to the residential property, the permanent residential right and the real right of residence.

(3) The claim under paragraph 1 is excluded,

  1. if further injuries can not be obtained, unless the injured person can not be expected to continue living with the offender because of the seriousness of the offense or
  2. if the injured person does not demand the release of the apartment in writing from the offender within three months of the act or
  3. as far as the surrender of the apartment to the injured person is precluded by particularly serious concerns of the offender.

(4) If the injured person has been handed over the dwelling for use, the offender shall refrain from anything that is likely to make it more difficult or impossible to exercise this right of use.

(5) The offender may demand compensation from the injured person for use, as far as this is equitable.

(6) If at the time of a threat under § 1 (2) sentence 1 no. 1, also in connection with para. 3, the endangered person has maintained a joint household with the perpetrator, he may release the shared apartment if necessary, to avoid undue hardship. An undue hardship may also be present if the well-being of household children is impaired. For the rest, paragraphs 2 to 5 apply accordingly.

§ 3 Scope, competitions

(1) If the injured or threatened person is under parental care, guardianship or under guardianship at the time of an act pursuant to § 1 (1) or (2) sentence 1, then in place of the parents and persons entitled to custody § 1 and 2 the rules governing custody, guardianship or guardianship.

(2) Further claims of the injured person are not affected by this Act.

§ 4 Penal provisions

Anyone who fails to comply with a particular enforceable order pursuant to section 1 (1) sentence 1 or 3, in each case in connection with section 2 sentence 1, shall be punished with imprisonment of up to one year or a fine. The criminal liability under other regulations remains untouched.

III. applications & court order

The initiative against violence against women. The forms for women are used to apply for civil protection under the Violence Protection Act. The corresponding forms for men can be requested from the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ), PO Box 20 15 51, 53145 Bonn, under “Materials for Gender Equality Policy No. 89/2002”. HERE to the direct -> DOWNLOAD.

Application for interim measures concerning apartment allocation according to § 2 GewSch.

Interim arrangement because of threat of the children and insult the wife.

IV. Hardship Case />

SIZE CASE – DIVORCE
divorce without separation phase

If marriage is broken, she is dead > Sche > divorce petition"> -> divorce petition be put. Normally a marriage is not ready for divorce before the end of a separation phase. Of these, § 1565 (2) BGB makes an exception and leaves one immediate divorce if the marriage continues to be unreasonable for the claimant for reasons that are in the person of the other spouse: see -> HARDNESS – DIVORCE.

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