Savremena evropska pravna teorija o socijalnoj funkciji prava svojine - nemačka doktrina

Abstract

Since the middle of XIX century the theory of the social function of ownership began to develop in Europe. An array of renowned European thinkers such as Gierke, Jehring, Duguit, Hedemann, Menger and Renner indicated the need to constrain specific private-law institutes in the public interest. Some of these ideas were embraced by the creators of the legal systems of several countries in the aftermath of the First World War. The theory of the social function of ownership, thus, was accepted in the famous Weimar Constitution. Limitations of ownership right in the public interest could be traced in all contemporary legal systems. They have been established by laws, whereas in some countries they have been envisaged in constitutions as the most supreme legal act. This fact underlines the importance of the social function of ownership. From the historic, as well as, currently applicable law point of view, German legal system and its doctrine deserve special attention. Starting point for social function of ownership in Germany presents Article 14 of the Basic Law for the Federal Republic of Germany (Grundgesetz) from 1949. In its first paragraph the right to ownership and inheritance are guaranteed, whereby at the same time, the legislator is authorized to foresee their content and limits. In the second paragraph, it has been stipulated that the ownership right entails obligations and that it shall serve the public good. Nevertheless, two fundamental values guaranteed by the Constitution: human dignity (die Wurde des Menschen) and the right to free development of personality (die freie Entfaltung der Personlichkeit) shall be considered as barriers to the imposition of ownership limitations. Accordingly, German courts protect the ownership right in as much as it is necessary for the realization of human dignity, personal autonomy, privacy and free development of personality. On the other hand, the so called institutional guarantee (Institutionsgarantie) implies the right of the state to limit certain institute in the public interest. In that sense, Federal Constitutional Court (Bundesverfassungsgericht) took the stance in the case Nasauskiesung that the Supreme Court of Justice (Bundesgerichtshof) took the wrong view that the land owner enjoys, pursuant to § 905 of the German Civil Code, the right to use the water sources within specific land plot. Namely, § 905 envisages that 'The right of the owner of a plot of land extends to the space above the surface and to the subsoil under the surface. However, the owner may not prohibit influences that are exercised at such a height or depth that he has no interest in excluding them'. Connected therewith, the Constitutional Court asserted that there is no coincidence between the civil law and constitutional law understanding of ownership. It, furthermore, contended that the comparison is not an appropriate one, given that, in the time when the German Civil Code was enacted the need to limit the right of the land owners to use underground water did not exist. Meanwhile, a rapid growth of industry led to the significant changes which caused also changes of legal regulations. Federal Constitutional Court, thus, viewed the disputed measure as an acceptable limitation of ownership right in the public interest. The paper also analyzes other examples from the German jurisprudence which pertain to the various aspects of the social function of ownership. In order to gain a complete insight into the social function of ownership in Germany, one needs to consult some private law institutes such as fideicommissum and family endowments. They enable exclusion of large portions of national wealth from legal transactions in favor of certain social strata and turning it into the so called mortmain (dead hand). The last part of the article is dedicated to this matter.