“What is the point of well-meaning laws that explicitly aim to protect the socially vulnerable if those for whom they are made do not claim them for themselves?” The question raised by Blankenburg in 1995 is still relevant today, especially in social law disputes. On the side of the law-seeking citizen, the variety of social problems resulting from unemployment, illness, need for care, an accident at work, reduced earning capacity, death of the family breadwinner, or maternity, often aggravated by the neediness of the persons concerned, is expressed therein. Accordingly, the subjects of the proceedings touch on highly personal and sensitive areas of life, which often have existential significance for the individual plaintiff. Furthermore, social rights require the intervention of the state and its institutions. Therefore, the basic constellation of social law disputes in which a citizen brings an action against a sovereign is characterised by a structural imbalance. Due to the financial and human resources at its disposal, the highly specialised social security administration has an advantage over the often technically and legally uninformed individual.
If those seeking justice in the social court trial are unable to assert their claims due to procedural obstacles, social rights remain merely a theoretical construct that does not meet the materially conceded needs of the people. In order to implement substantive social law, it must therefore be ensured that those seeking justice can obtain effective legal protection through access to institutions and an appropriately designed procedure.
In order to give preference to the structurally disadvantaged and ensure effective legal protection, special procedural rules must be applied in social law disputes. The initial thesis of this dissertation project is based on the assumption that, due to the special features described, court procedures in social law matters take greater account of the plaintiff’s interests than other procedural rules, thereby supporting the structurally disadvantaged and securing effective legal protection. Such procedural rules are to be regarded as an expression of the principle of plaintiff-friendly procedure and are at the centre of this work. The principle of plaintiff-friendly procedure manifests itself in procedural rules that allow for deviations from mandatory formal requirements in favour of the citizen or the “mending” or correction of faulty procedural actions on the part of the plaintiff. Furthermore, the court procedure in social security matters is characterised by the fact that it is, on principle, free of charge. The second hypothesis of the dissertation is that the principle of plaintiff-friendly procedure is a common principle of fundamentally different judicial proceedings in social law matters.
In a systematising examination, it is possible to differentiate between two contradictory models for the organisation of judicial remedies in matters of social law. On the one hand, legal protection may be granted through a special administrative jurisdiction. Germany is investigated as a prototype of this model. As opposed to this, some legal systems assign social law disputes to the same courts as labour law disputes. The analogue country, Slovenia, stands for the model of the assignment of social law disputes to labour courts. Therefore, the work focuses on the comparison between Germany and Slovenia as prototypes of two contrary models.
The judicial proceedings of the two selected countries are examined on the basis of the principle of plaintiff-friendly procedure as a tertium comparationis. The method of functional legal comparison (functional principle) is used to search for the rules that fulfil the same function in all selected procedures. The comparative method represents a systematic sequence of steps to determine the similarities and differences between the procedures to be compared. Therefore, the procedure of the two countries studied is presented in terms of the three relevant phases: access to justice, trial before the court, and termination of the trial. For each country studied, a comparison of national laws is also carried out with a view to the General Code of Civil Procedure and the General Administrative Court Rules in order to ascertain whether and to what extent the procedural rules investigated constitute a deviation from the general procedural rules and whether the judicial proceedings in social law actually take greater account of the plaintiff than other judicial proceedings. The thesis, which was submitted in 2019, concludes that, despite the differences of both systems, they share the principle of plaintiff-friendliness in social court proceedings.
