German Civil Code Research Articles

Types of legal entities under public law in German doctrine and legislation

This article examines the concepts and types of legal entities under public law in German doctrine and legislation. The legal status of public legal entities is regulated by the provisions of the German Constitution, the German Civil Code, the Law on Administrative Procedures, the Law «On the Procedure for Consideration of Cases Under the Management of Administrative Bodies», the Law «On Administrative Courts». The author examines the issue of determining the criteria for the classification of legal entities, so legal entities under public law are created in an executive order, act to satisfy the public or public interest, have authority, operate in organizational and legal forms of an open type, are responsible for the activities of their officials, legal the regime of property has certain features, in particular, such property can be transferred for use by legal entities under public law. As a rule, legal entities under public law have a special scope of legal capacity, unlike legal entities under private law, in this regard, the article analyzes the doctrine of ultra vires. The author examines the procedure for creating legal entities under public law in Germany, the types of organizational and legal forms of legal entities under public law that carry out their activities in the form of a public corporation, public institution, public fund. The article considers the sources of property formation of legal entities under public law, in particular, it can be income from entrepreneurial activity, budget funds, contributions of members of public corporations, donations (for example, the German State Bank, the German Chamber of Commerce and Industry, the Prussian Cultural Heritage Fund). The article considers four types of public corporations: territorial, united, personal, real. A feature of the activity of public corporations in Germany is the presence of membership, unlike public institutions.

History of the development of the institute of law abuse in the states of the romano-german legal family

The article provides a historical analysis of the institution of abuse of law in the states of the Romano- Germanic legal family. In particular, with the help of a set of philosophical-worldview, general scientific, special scientific methods (primarily, dialectical, historical-legal and comparative-legal) and principles of scientific knowledge, the evolution of theoretical ideas about the abuse of law, their consolidation in legislation and practical implementation in individual states of the Romano-Germanic legal family (Germany, Austria, Switzerland, Spain, France). It is argued that modern ideas about the abuse of law are based on the provisions of Roman law. Theoretical approaches to the abuse of law contained in the works of leading European legal scholars (A. Binder, T. Geise, W. Erman, L. Dugis, W. Siebert, V. Roberto and others) were analyzed. On the basis of a comparative analysis of normative legal acts regulating the issue of abuse of law (German Civil Code, Austrian Civil Code, Civil Codes of Switzerland, Spain and France), characteristic features and general trends of the legal establishment of the category “abuse of law” in the states of the Romano- Germanic legal system have been revealed family. It was established that theoretical approaches to understanding the category of “law abuse” were most actively developed by scientists in Germany and France. In particular, general approaches to the essence and features of the abuse of the right have been developed, mechanisms for counteracting the harmful exercise of the right, etc. have been proposed. At the same time, the legislation of Germany, Austria, Switzerland, Spain and France also uses the experience of other countries, transforming it through their own culture and traditions. This is due to certain features of the legislative establishment of the inadmissibility of the abuse of the right. It was concluded that due to the existence in the states of the Romano-Germanic legal family of a general ban on the abuse of law, legal science had the opportunity to investigate not only specific cases of unfair exercise of the law, but also the phenomenon of abuse of law in general.

지명채권양도에 있어 대항요건주의에 대한 고찰 - 비교법적 검토를 포함하여 -

An assignment of claim refers to a contract to transfer a claim while maintaining identity of the claim between an assigner (who is an obligee) and an assignee (who will become a new obligee). In the assignment of a nominative claim, assignee can effectively acquire the claim only by agreement between the assigner and the assignee. Since the obligor may not engage in the assignment of a claim by the obligee, it is unreasonable to impose any disadvantage therefrom on the obligor. Ultimately, as the person who contributes the property is the obligor, each country establishes a system under the legislation to protect obligors who are at risk of double payment due to double assignment of a claim even though there are differences in contents and methods in each country. Specifically, in a country with the bona fide protectionism, such as Germany, the order of superiority between assignees is determined depending on whether the obligor was aware of the senior (first) assignment, while in a country with the principle of requisite for setting up against, such as Japan, the order of superiority between assignees is determined depending on whether the obligor is aware of the assignment of a claim. On the contrary, it seems that the U.S. restatement of contract law focuses on whether the second assignee is worth being protected rather than focusing on obligor by determining the order of superiority depending on whether the second assignee had good faith in making the senior assignment. In recent, France revised its Civil Code to abolish the requisite for setting up against a third party in assigning the claim, and to make assignees determine their order of superiority according to the date on the claim assignment deed, defining the contract on the assignment of claim as a formal contract for that purpose. The requisite for setting up against obligor was also relaxed. For example, notice by the enforcement agency and consent by notarized deed required under the previous law was simplified to a simple notice and consent. Article 450 (1) of the Korean Civil Act stipulates that the assignment of a nominative claim cannot be set up against the obligor, unless the assigner has given notice thereof to obligor or the obligor has consented thereto, and Paragraph (2) of the same Article prescribed that the notice or consent cannot be set up against a third person other than the obligor, unless it is put in writing with a certified fixed date. The legislative proposal to change to bona fide protectionism, like the German Civil Code, is worthy of paying attention, but the principle of requisite for setting up against still has the practical value in that it contributes to safe transaction through protection against the risk of double payment for the obligor and the function of fixing the position of the assignee. And from a realistic perspective, in the current situation where the principle of requisite for setting up against has already been quite widely accepted, it is my opinion that it is more appropriate to consider other systems more suitable for the disclosure of requisite for setting up against, going beyond the recognition of the obligor of notice or consent, which is the current requisite for setting up against between obligor and the third party while maintaining the principle of requisite for setting up against. In this paper, based on a review of the legislative cases of each country, as an improvement to Article 450 of the Korean Civil Act, I am going to look into a method of executing an agreement on assignment of a claim in a written contract similar to that prescribed in the French Civil Code in relation to requisite for setting up against the third party and giving effect to the fixed date given thereto, and a method to request registration of assignment of a claim as a requisite for setting up against the third party in the assignment of a claim while maintaining the notice and consent, the requisite for setting up again

채권양도금지 특약과 채권양도의 제3자에 대한 대항요건에 관한 비교법적 연구

At the time of the enactment of the Korean Civil Code, the provision regarding anti-assignment clauses and perfection of the assignment of claims against third parties were referred to the Japanese Civil Code. However, in 2017, Japan significantly revised Article 466 of its Civil Code, which deals with the anti-assignment clause. The provisions of the Japanese Civil Code regarding perfection of the assignment of claims against third parties were referred to the French Civil Code when Japan enacted its Civil Code in 1896. However, France revised its Civil Code to adopt a written form requirement for the contract of assignment of claims (French Civil Code, Article 1322), and removed the requirement of notification to the debtor for perfection of the assignment of claims against third parties, so that perfection of the assignment against third parties is acquired at the time of the conclusion of the assignment agreement (French Civil Code, Article 1323). The German Civil Code, from the beginning, stipulates that perfection of the assignment against third parties is acquired at the time of the conclusion of the assignment contract, and notification to the debtor is not a requirement. Considering these global revision trends, it is desirable to consider revision of the Korean Civil Code regarding anti-assignment clauses and perfection of the assignment of claims against third parties. As a proposed revision to the Korean Commercial Code, the introduction of a provision specifically dealing with receivables can also be considered. According to this proposal, for non-monetary claims, the assignment of claims would be void if the assignee is aware (or grossly negligent) of the anti-assignment clause, and the assignment would be valid if the assignee is unaware under the Korean Civil Code; and in the case of commercial receivables, the assignment of receivables would be valid regardless of whether the assignee is aware or unaware of the anti-assignment clause, thereby protecting the safety of transactions involving receivables under the proposed Commercial Code revision. An analysis of overseas legislation shows that there are few examples of legislation that stipulate notification to the debtor as a requirement for perfection of the assignment of receivables against third parties. With France’s revision of its Civil Code, the Japanese Civil Code is almost the only example of such legislation. It is time for Korea to consider a revision that liberates the assignor from the obligation to notify the debtor in order to perfect the assignment against third parties. To alleviate the burden of notifying the debtor of the assignment of receivables, it is necessary to revise the Act on Security over Movable Assets and Receivables to include the assignment of receivables within its scope of application.

환경침해에 대한 유지청구의 인정 근거로서 민법 제217조에 대한 고찰

As society develops and becomes more complex, damage caused by environmental infringement activities such as soil pollution and waste pollution is increasing. Environmental issues are considered an important key to determining our future. In the case of damage caused by environmental infringement, the first and foremost remedy is to claim compensation for damages afterwards. However, once damage caused by environmental infringement occurs, it is difficult to recover to its original state, and even if it is recovered, it is bound to take a lot of time and money. For this reason, proactive prevention is more important than follow-up relief in environmental infringement problems. Generally, an “injunction” is presented as a preventive remedy against environmental infringement. An injunction is the right to demand a certain action or inaction from the perpetrator when damage is occurring or is likely to occur due to environmental infringement. However, since it entails the prohibition of certain acts, it can excessively restrict the property rights of the perpetrator. Therefore, a clear legal basis is necessary to recognize an injunction. There are various conflicting views on the legal basis for recognizing an injunction, including the perspective that it is based on right to claim real rights, the perspective that it is based on environmental rights, and the perspective that it is based on personal rights. Supreme Court considers right to claim real rights as the basis for an injunction. The prevailing view also considers right to claim real rights as the basis for an injunction. It is a general interpretation of civil law that Article 217 of the Civil Code cannot serve as the basis for an injunction against environmental infringement, given that it is a regulation established with reference to Article 906 of the German Civil Code and pertains to neighborly relations. Article 217 of the Civil Code imposes an active duty on landowners to prevent infringing activities. Therefore, the interpretation of Article 906 of the German Civil Code, which is structured to limit the scope of the victim’s right to demand the removal of interference, should not be directly applied. Article 217 of the Civil Code provides a limited description of types of environmental infringement and imposes a duty on landowners to prevent infringing activities. Therefore, this paper aims to examine Article 217 of the Civil Code from a new perspective, departing from the traditional interpretation.

VII. Eine Entwicklungsgeschichte des chinesischen Familien- und Erbrechts im Lichte der Rezeption des deutschen BGB

Summary In contrast with China’s several millennia of civilization history, its history of civil law legislation had not started until the late Qing-Dynasty (1911). This discrepancy stood out prominently in the correlated areas of the family law and inheritance law due to China’s cultural features and the compatible cultural awareness of its people, which had naturalized and legitimized their practices in both areas. Actually, in no other areas had the cultural consciousness, the deep-rooted cultural psychology and the consciousness-driven behavioral patterns of the Chinese families and individuals been more profoundly shaped by the rules of rites and etiquette, the ethical rules and the patriarchal clan system, central customary-legal elements enshrined in the Chinese history. As its key achievement, the legal modernization in the late Qing period (1902–1911) brought forth the Civil Code of the Qing- Dynasty (ZGE), the first such milestone in China’s legal history, initiating the civil law legislation in China. With regard to China’s special legal-historical and legal-cultural background, the drafters of the ZGE – especially its family and inheritance law – had to revolutionarily modernize the Chinese civil law, while at the same time, transferring certain traditional cultural legacies. This could not have been possible without adopting the German Civil Code (BGB) as the primary foreign codification model, especially from the legal-technical, legal-systematic and legal-dogmatic perspective. Ever since then, the evolution of the Chinese civil law has been closely connected with the adoption of the BGB, while the history of the former runs parallel to the history of the latter. The influences of the BGB on China’s major civil law codifications, including also the Civil Code of the Republic of China (1929–1931) and the PRC Civil Code (2020), have been significant and continuous. It is legal-historically insightful to probe into these influences while examining the evolutionary history of the Chinese family and inheritance law ever codified since the ZGE, and, accordingly, retracing and closely analyzing the pre-modern state of both areas.

Restriction of Liability of Minors under German Civil Code

Restriction of Liability of Minors under German Civil Code

주택임대차 시장 상생방안

In South Korea, the domestic housing supply rate has already exceeded 100% since 2008, but the home ownership rate in 2021 still remains at 57.3%. In response to large-scale Chonse fraud, the government has come up with various solutions, but there is criticism that it is insufficient for a fundamental solution. This paper aims to derive a win-win plan between landlords and tenants in the rental market through legal and institutional improvement.
 First, it is necessary to partially restrict private landlords from freely choosing whether to register as rental businesses. Through this, it is possible to prevent a rental business operator who meets the requirements for rejection of the registration application under Article 7 (7) of the Special Act on Private Rental Housing from entering the rental market. In addition, the tenant's right to claim the return of the deposit can be substantially secured by requiring additional asset requirements for rental businesses of a certain size or larger. Although the lease system has positive factors such as a role as a residential stepping stone and a reduction in housing costs, it basically grants the right to freely dispose of a large amount during the lease period, while the legal protection for its return is insufficient. There have been various legal and institutional efforts to compensate for this, but tenants are still not sufficiently protected. The old customary Chonse was incorporated into Article 303 et seq.(Right to registered lease on a deposit basis) of the Korean Civil Code, but Chonsegwon is rarely used in practice. In terms of the protection of tenants, it is reasonable not to allow Chonse Lease. In reality, it is also possible to consider forcing the registration of leaseholds that are paid a certain amount or more of rental deposits. It is necessary to correct the practice that rental deposits are received much more than collateral purposes. Article 551 (1) of the German Civil Code restricts rental deposits not to exceed three times the rent for one month. It may also be considered to force leaseholds that are paid a certain amount or more of rental deposits to be registered.

On the Role of Sales Taxes for Efficient Compensation of Property Loss Under Strict Liability

Abstract When a victim loses property due to an injurer’s wrongful act, it must be decided whether the damages award should include the sales taxes associated with the lost property’s replacement. This is especially acute when the victim can make other use of the damages award than replacement. This paper compares regimes that differ in how they treat sales taxes, focusing on possible distortions of consumption and care choices. We find that regimes that include sales taxes in damages awards only when incurred to replace the lost property (as, for instance, the German Civil Code does) induce suboptimal consumption and care incentives. Distortions of care incentives also depend on the nature of care expenditures (monetary or non-monetary).

CONSENT TO HARM IN THE SYSTEM OF LEGAL FACTS: GERMAN DOCTRINE AND CASE LAW

The article is devoted to the development of approaches to the legal qualification of the consent to harm in German doctrine and case law. The author explores the problems of the transactional theory of consent, based on the provisions of the German Civil Code and dogmatically formulated in the work of E. Zitelmann. The article describes the early case law of the German high courts on the consent to harm. The author generalizes critique of the transactional theory of consent in the doctrine and describes a departure from it in the case law of the mid-20th century in Germany. The author dwells in detail on various non-transactional approaches to the qualification of consent presented in the works of K. Larentz, E. Schenke, O. Bucher and W. Münzberg. The article describes a modern approach to consent based on the teleological reduction of some rules on transactions. The author comes to the conclusion that the development of doctrinal views on consent to harm in Germany proceeded dialectically: from the transactional qualification of consent through non-transactional approaches to the limited application of certain rules on transactions. The author suggests to qualify consent to harm as a transaction with some reservations.

Экономико-правовые вопросы посредничества на рынке недвижимого имущества и в других сегментах гражданского оборота

The relevance of the subject of the selected scientific article is predetermined by the absence of the concept of mediation in the Russian civil legislation and the need to define the subject of this type of activity. As a conse-quence, there is inconsistency in the use of the term “intermediation” in relation to various segments of ser-vices, including in the sphere of real estate turnover, in trade, as well as in law enforcement activities. As a re-sult, there is inconsistency in the use of the term mediation in relation to various segments of services, includ-ing in the sphere of real estate turnover, in trade, as well as in law enforcement. The article considers the pecu-liarities of formation of intermediary services in the real estate market. The one-time nature of the majority of transactions is noted. The reasons for the short duration of the contractual lease terms of both residential and commercial real estate are revealed. The authors pay great attention to the definition of mediation and its main features. The types of mediation are distinguished in economic and legal aspects, as well as in its broad and narrow understanding. The classification of the subjects of mediation activity is carried out according to various criteria. The authors’ detailed analysis of the subject of the activity of a broker under the German Civil Code, as well as an occasional intermediary in international trade, appears to be of interest.

Unter einem „neuen Himmel“? Wachstum und Wandel im juristischen Publikationswesen an der Wende zum 20. Jahrhundert

Summary Around 1900, legal literature and publishing in Germany underwent a significant process of expansion and transformation. This development is, in part, due to the codification of important areas of law, especially the advent of the German Civil Code. The new codes instigated a vast quantity of legal literature; legal commentaries took the lead in explaining the new law. However, it is only through a look at the history of books and publishing, as well as the general history of science, that the development of legal literature can be fully appreciated. This paper shows that the growth and transformation of legal literature before and after 1900 is part of a larger development, i.e. the emergence of a literary mass-market, on the one hand, and the formation of what Adolf von Harnack called a ‘large-scale industry of science’, on the other hand.

주택임대차와 존속보장

Although the domestic housing supply rate has already exceeded 100% from 10 years ago, the homeowner’s share of housing in 2021 is still at 57.3%. Due to the imbalance between supply and demand, there is a rapid rise in housing prices and a housing shortage in the housing rental market. As a result, housing tenants are suffering from housing instability and economic burden. In the domestic housing rental market, it not only greatly undermines the housing stability of the tenants, but also acts as an obstacle to the welfare and integration of the people. On the other hand, it is worth noting that advanced countries such as Germany, England, and France have already widely guaranteed the rights of lessees without imposing restrictions on the duration of leases since the 1960s and 1970s.
 Recently, there is an opinion that the lease period should be guaranteed for 6 years or longer by extending the minimum period of housing lease or by increasing the number of exercise of the right of renewal lease. From a comparative law point of view, there is no limit on the number of contract renewal rights or the rental period for housing leases. Therefore, from a long-term perspective, it would be desirable not to set the duration of the lease in order to guarantee the stable housing right. However, considering the domestic housing lease situation and legal system, a realistic alternative is not to restrict the exercise of the lessee's right of renewal lease. However, in this case, it is necessary to study the legal theory of the Reasons for refuse to renewal lease under Article 6-3 (1) of the Housing Lease Protection Act. In addition, iit is worth considering introducing the right of defense of poverty in Article 574 of the German Civil Code to strongly protect the housing rights of tenants in need. Furthermore, it is possible to secure the housing stability of the lessee through rent regulation that fundamentally prohibits the opportunity for the lessor to pursue economic interests by changing the lessee.

Ophthalmologic Evaluation of Fitness to Drive

The ophthalmologist must know the essential principles of the driving fitness assessment. In the case of applications for a driving license renewal, it must always be clarified before the examination whether the fitness to drive is to be checked in accordance with the special regulation for holders of a driving license issued up to December 31, 1998 (see Annex 6 to § 12 of the FeV under 2.2.3 Special regulations for the old German Road Traffic Licensing Regulations). Within the scope of grandfathering, this continues to be valid only for the so-called old holders. A categorization of the manifold concerns regarding fitness to drive or driving ability in everyday practice makes it easier for the ophthalmologist to make a factually justified decision in individual cases. In particular, a distinction must be made between the medical assessment of subjects as applicants for a driving license (first-time applicants or renewal applicants) according to the German Driving License Ordinance (FeV) and the consultation of patients with chronic eye diseases [duty to inform according to the German Patients' Rights Act (PRG) and the German Civil Code (BGB), German Driving License Ordinance (FeV)]. The German Driving License Ordinance contains precise specifications for standardized testing of visual acuity and visual field as the most important partial functions of the eye. A special feature of the identified performance deficits of the eyes is that compensation by other bodily functions or supplementary technical equipment on the vehicle is not yet possible. The ophthalmologist therefore often has the task and responsibility of balancing the individual desire for mobility, in the case of professional drivers even the preservation of their jobs on the one hand, and the general societal need for safety on the other.

청산으로서의 공유재산 분할

When a co-owned asset is to be divided, could the rights and duties of the co-owners against each other be considered in the sense that they are reflected in the concrete result of division? In practice, the question has been raised especially with regard to the division of inheritance. It is, however, an issue which affects the co-ownership in general. This article attempts to answer it from a historical and comparative perspective. The conclusions are as follows.
 1. That the division of a co-owned asset or inheritance has an effect of liquidating the legal relationship between its co-owners (damages, restitution of fruits, compensation for expenses etc.) was already acknowledged in Roman law. The French Civil Code had not known this rule at first, but later introduced it after doctrine and case law had allowed the same result. The corresponding norms can be found in the German Civil Code, too.
 2. Also applying the Korean Civil Code, the interpretation that the legal relationship between the co-owners can be reflected in dividing a co-owned asset or inheritance is definitely possible. It is justified by the division’s purpose, an analogy to art. 1008 and a comparison with dissolution of partnership.
 3. In view of division of inheritance, this rule applies as follows: (1) The burden of inheritance costs should be reflected in division. (2) A substitute asset should be considered according to whether it arises between the co-owners or against a third party. In the former, the substitute asset itself is to be divided. In the latter, damages or restitution claims of the co-owners are to be calculated into the divided share. (3) Fruits or revenues from inheritance can be divided in advance, but are subject to division of inheritance when still extant. (4) Divisible claims and duties divide themselves ipso iure upon devolution of an inheritance. However, they can be redistributed by way of division if necessary for an equitable result.

Law, justice and the role of courts in changing the social superstructure narrative in climate litigation

Law, justice and the role of courts in changing the social superstructure narrative in climate litigation

Distinguishing German Residential and Commercial Tenancy Law: Are Tenant and Landlord in an Equal Position?

The German housing market, particularly in major cities, is very tight. This situation makes Tenancy Law the issue that has attracted the most attention in local and federal elections. This article presents and illustrates various methods of protecting the individual parties to a lease contract. Besides, it highlights the differences between Residential Tenancy Law and Commercial Tenancy Law and explains why legislation distinguishes between these two types of tenancies. This research establishes arguments and interpretations from relevant laws and regulations, including the German Civil Code and German General Equal Treatment Act, and judicial decisions that clarified the legal relations between tenants and landlords. This article concludes that Tenancy Law in Germany distinguishes in different ways between Residential Tenancy Law and Commercial Tenancy Law from legal, social, and economic perspectives. It also infers that the provisions stipulated in German Tenancy Law protect the tenant's right while remaining attractive for landlords to offer the house(s) for rent.

Особенности наследственного права Германии конца ХIX века

The features of inheritance in Germany under the Civil Code of 1896 are investigated. The doctrines of inheritance and types of inheritance under German law of the late nineteenth century are analyzed. The purpose of the hereditary reform of the Civil Code in the German Empire is analyzed and the conclusion is substantiated that it consisted in overcoming the diversity of hereditary systems of the German lands. It is summarized that this goal was achieved as a result of the formation of a unified system of norms, which was based on the traditions of German law, and also sufficiently took into account the interests of the emerging bourgeoisie. As a result of the reform, hereditary fragmentation in Germany was overcome, including in connection with an integrated approach to the regulation of hereditary relations. Conclusions are presented regarding the peculiarities of the regulation of inheritance law under the German Civil Code of 1896, which were distinguished by a visible contradiction between the preservation of orders having feudal features (in the field of land ownership) and capitalist (in the field of inheritance by will). It is also revealed that the inheritance law of the late nineteenth century contributed to the strengthening of the economic position of the Prussian burghers and contributed to the formation and strengthening of large capital in the German Empire.

Subjekti prava i njihovo zastupanje - istorijski osvrt

The principle of legal equality, which assumes the equal application of legal norms to all, proclaimed by the Universal Declaration of Human Rights, has not always been in force and is the result of years of struggle. With the emergence of commodity production, the concept of persona iuris develops. The term "legal person" appeared in medieval doctrine when Hugo used it as a synonym for corporations. Representation as a legal institute that allows a representative to express the will of the represented within the limits of the given authorization, which directly binds the represented, was first defined by the German Civil Code of 1896. Since its inception, law has been a reflection of the development of society. And so, from the initial rule: alteri stipulari nemo potest, in the conditions of overall technical-technological progress where the mobility of physical and legal persons increases, and the international element is a frequent occurrence in contracts, the institute of representation gains importance.

Claim for Compensation due to Environmental Infringement

Claim for Compensation due to Environmental Infringement