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bevorstehende Entscheidung des BGH zum Elternunterhalt, Fehlverhalten und unbilliger Härte
Verhandlungstermin: 15. September 2010
XII ZR 148/09
AG Bottrop – Urteil vom 14. November 2008 – 14 F 187/08 – OLG Hamm – Urteil vom 6. August 2009 – II-2 UF 241/08 – (veröffentlicht in FamRZ 2010, 303)
Der für das Familienrecht zuständige XII. Zivilsenat wird u. a. zu entscheiden haben, unter welchen Voraussetzungen der Sozialhilfeträger, der einem in einem Heim lebenden Elternteil Sozialleistungen erbracht hat, von dessen Kindern eine Erstattung seiner Kosten verlangen kann.
Die Klägerin, Trägerin der öffentlichen Hilfe, nimmt den Beklagten aus übergegangenem Recht auf Zahlung von Elternunterhalt für seine 1935 geborene Mutter in Anspruch. Die Mutter, die sich seit April 2005 in einem Pflegeheim befindet, litt schon während der Kindheit des Beklagten an einer Psychose mit schizophrener Symptomatik und damit einhergehend an Antriebsschwäche und Wahnideen. Sie hat den Beklagten nur bis zur Trennung und Scheidung von ihrem damaligen Ehemann im Jahr 1973 - mit Unterbrechungen wegen zum Teil längerer stationärer Krankenhausaufenthalte - versorgt. Seit spätestens 1977 besteht so gut wie kein Kontakt mehr zwischen dem Beklagten und seiner Mutter.
Der Beklagte wendet zum einen Verwirkung wegen verspäteter Geltendmachung des Unterhaltsanspruchs durch den Sozialhilfeträger und u. a. wegen Fehlverhaltens seiner Mutter ein. Da sie ihn als Kind nie gut behandelt habe, würde es im Übrigen eine unbillige Härte bedeuten, wenn er gegenüber dem Sozialhilfeträger kraft Rechtsübergangs für den Unterhalt der Mutter aufkommen müsste.
Auf die Berufung der Klägerin hat das Oberlandesgericht den Beklagten im Wesentlichen antragsgemäß verurteilt. Mit seiner Revision begehrt der Beklagte Abweisung der Klage.
Der Senat wird in zivilrechtlicher Hinsicht zu entscheiden haben, in welchem zeitlichen Rahmen der Gläubiger eines Unterhaltsanspruchs diesen geltend machen muss und unter welchen Voraussetzungen ein Anspruch auf Elternunterhalt nach § 1611 BGB* wegen eines Fehlverhaltens des Unterhaltsberechtigten verwirkt sein kann. Außerdem wird es um die – fiskalisch bedeutsame – Frage gehen, wann nach sozialrechtlichen Kriterien ein Anspruchsübergang auf die Behörde gemäß § 94 Abs. 3 Satz 1 Nr. 2 SGB XII** wegen unbilliger Härte ausgeschlossen ist.
Die maßgeblichen Normen lauten wie folgt:
*§ 1611 BGB (Beschränkung oder Wegfall der Verpflichtung)
(1) Ist der Unterhaltsberechtigte durch sein sittliches Verschulden bedürftig geworden, hat er seine eigene Unterhaltspflicht gegenüber dem Unterhaltspflichtigen gröblich vernachlässigt oder sich vorsätzlich einer schweren Verfehlung gegen den Unterhaltspflichtigen oder einen nahen Angehörigen des Unterhaltspflichtigen schuldig gemacht, so braucht der Verpflichtete nur einen Beitrag zum Unterhalt in der Höhe zu leisten, die der Billigkeit entspricht. Die Verpflichtung fällt ganz weg, wenn die Inanspruchnahme des Verpflichteten grob unbillig wäre.
…
**§ 94 SGB XII (Übergang von Ansprüchen gegen einen nach bürgerlichem Recht Unterhaltspflichtigen)
(1) Hat die leistungsberechtigte Person für die Zeit, für die Leistungen erbracht werden, nach bürgerlichem Recht einen Unterhaltsanspruch, geht dieser bis zur Höhe der geleisteten Aufwendungen zusammen mit dem unterhaltsrechtlichen Auskunftsanspruch auf den Träger der Sozialhilfe über. …
(2) …
(3) Ansprüche nach Absatz 1 und 2 gehen nicht über, soweit
1. …
2. der Übergang des Anspruchs eine unbillige Härte bedeuten würde.
…
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Am 27. April 2011 um 21:50 Uhr
After I originally commented I clicked the -Notify me when new comments are added- checkbox and now every time a comment is added I get 4 emails with the identical comment. Is there any method you can remove me from that service? Thanks!
Am 28. April 2011 um 05:56 Uhr
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Am 29. April 2011 um 10:38 Uhr
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Am 30. April 2011 um 00:44 Uhr
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Am 30. April 2011 um 05:23 Uhr
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Am 1. Mai 2011 um 03:52 Uhr
I have to say that Im really unimpressed with this. I mean, sure, youve got some very interesting points. But this blog is just really lacking in something. Maybe its content, maybe its just the design. I dont know. But its almost like you wrote this because everybodys doing it. No passion at all.
Am 2. Mai 2011 um 02:35 Uhr
The only place you’ll find success before work is in the dictionary
Am 2. Mai 2011 um 21:17 Uhr
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Am 2. Mai 2011 um 23:29 Uhr
The new Zune browser is surprisingly good, but not as good as the iPod’s. It works well, but isn’t as fast as Safari, and has a clunkier interface. If you occasionally plan on using the web browser that’s not an issue, but if you’re planning to browse the web alot from your PMP then the iPod’s larger screen and better browser may be important.
Am 3. Mai 2011 um 06:24 Uhr
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Am 22. Mai 2011 um 08:55 Uhr
I was wondering if you ever considered changing the layout of your blog? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having one or two images. Maybe you could space it out better?
Am 25. Mai 2011 um 02:28 Uhr
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Am 26. Mai 2011 um 11:32 Uhr
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Am 28. Mai 2011 um 03:37 Uhr
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Am 31. Mai 2011 um 00:55 Uhr
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Am 3. Juni 2011 um 03:26 Uhr
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Am 3. Juni 2011 um 08:44 Uhr
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Am 5. Juni 2011 um 07:21 Uhr
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Am 14. Juni 2011 um 20:26 Uhr
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Am 17. Juni 2011 um 11:10 Uhr
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Am 18. Juni 2011 um 12:58 Uhr
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Am 19. Juni 2011 um 15:47 Uhr
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Am 23. Juni 2011 um 11:20 Uhr
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Am 7. Juli 2011 um 14:57 Uhr
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Am 11. Juli 2011 um 09:09 Uhr
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Am 19. Juli 2011 um 22:55 Uhr
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Am 20. Juli 2011 um 05:49 Uhr
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Am 23. Juli 2011 um 23:35 Uhr
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