German Law Research Articles

Poslovno pravo i pravo održivog razvoja – između profitabilnosti i etičnosti

As for applying the knowledge from EU law, the author points out two tendencies affecting company law in the context of sustainability. The first one is the legal duty of the companies to incorporate the statement of purpose, which is no longer limited to profit. The second one is the corporate duty of care in line with ESG standards as well as the corporate purpose. It is an integral part of a company’s business and culture. Having in mind French, German or Dutch law, directors are expected to promote long-term business success, to take care of the open list of stakeholders’ interests and to apply corporate due diligence standards. Thought leaders, however, generally describe ESG as a business strategy that creates long-term stakeholder value by addressing social, economic, and environmental opportunities and risks that are material to a company. Preservation as well as environmental protection is one of the biggest challenges that modern generations will have to face. The term green transition has been coined as an expression of the efforts to ensure the transition to a sustainable business model in order to preserve the ecosystem and the planet as such. Non-financial reporting plays a very important role in the green transition process. Integral part of the EU agenda remains the discussion about corporate directors’ duties in the context of human rights as well as environmental risks. There is no doubt that the key word of the new corporate governance paradigm is risk.

Public participation in the administration of justice during the polish-lithuanian period (14th – first half of the 17th century)

The scientific article examines the development and functioning of the judicial system on Ukrainian lands during the Polish-Lithuanian rule (14th – first half of the 17th century). The main focus is on the multi-level structure of judicial authority, which included the central power represented by the prince and boyars, as well as local power exercised by appointed officials such as voivodes, volostels, and posadniks. It is established that the legal heritage of Kyivan Rus significantly influenced the judicial system of Ukrainian lands during the Lithuanian principality, providing stability and consistency in legal regulation. The implementation of Magdeburg Law in certain cities is discussed, which brought new legal standards and granted some autonomy to urban communities. The role of various forms of public justice, such as veche, arbitration, kopa, communal, peace, and bench courts, is identified. The analysis covers kopa (communal) courts, which had survived since the times of Kyivan Rus and operated based on ancient Rus law. It is emphasized that kopa courts existed on Ukrainian lands both in the Polish Kingdom and the Grand Duchy of Lithuania. Their uniqueness lay in the participation of representatives from all social strata, which ensured a wide range of opinions and experiences. This form of justice involved the consideration of various cases, including land disputes, criminal offenses, inheritance issues, and other civil matters. Despite the spread of German law, which introduced new legal standards and procedures, kopa courts remained important institutions, especially in rural communities. Kopa courts were an integral part of the legal system of Ukrainian lands during the medieval period, ensuring access to justice for all social strata and playing an important role in maintaining social justice and legal order. A separate section of the article is dedicated to Wallachian law, which spread in the western Ukrainian lands in the 14th century and provided for a democratic form of justice through judicial veche. In summary, the coexistence of different legal systems – German, Rus, and Wallachian law – created a multifaceted legal culture that met the needs of various societal layers and ensured the stability and predictability of judicial decisions on Ukrainian lands during the medieval period.

LEGAL CONTROVERSIES IN CROSS-BORDER SURROGACY: A CENTRAL EUROPEAN PERSPECTIVE ON THE RECOGNITION OF LEGAL PARENTHOOD THROUGH SURROGACY ESTABLISHED ABROAD

Background: This paper explores the legal field of surrogacy from a Central European perspective, focusing on how countries such as Austria, Germany, and Switzerland address the recognition of parental status established abroad. While the prevailing attitude among Central European states is to prohibit surrogacy within their national laws, there is an increasing tendency to bypass these bans by seeking surrogacy services abroad. This phenomenon, termed reproductive tourism, raises complex legal questions about the recognition of foreign parental status determinations. Methods: The methods used include a comprehensive review of international and autonomous national legal rules as well as a comparative analysis of case law from Central European courts regarding cross-border surrogacy and parenthood recognition. The study examines legal controversies employing Austrian family law as an example to assess highly topical issues arising from surrogacy. It incorporates data from various legal sources, including the Austrian Constitutional Court, the German Federal Court of Justice, the Swiss Federal Supreme Court, and the European Court of Human Rights. Results and conclusions: The findings reveal significant differences between Austria, Germany, and Switzerland regarding the recognition of parental status established by way of surrogacy abroad. While supreme court decisions in these countries tend to prioritise the best interests of the child – often recognising foreign surrogacy arrangements to avoid leaving children without legal parents – their judicial approaches differ considerably. The Austrian Constitutional Court adopts a more inclusive approach by accepting foreign determinations from any authority, such as birth certificates, under the concept of automatic recognition. In contrast, the German and Swiss supreme courts acknowledge only formal court decisions. For cross-border surrogacy cases that do not fulfil this requirement, these countries apply the national law of the child's habitual residence or, as a fallback, the law of the intended parents’ country of origin. Since both German and Swiss law categorically forbid surrogacy, only the genetic father is typically recognised, while the intended mother is directed to adoption. This aligns with the opinion of the ECtHR, which still considers the method of establishing parenthood to be within the sovereignty of a state. This article advocates for a balanced approach that respects both the legal principles of national states and the fundamental rights of children born through an arrangement with a surrogate mother in another country.

The Incidence of Endometriosis, 2014–2022. An Analysis of Nationwide Claims Data From Physicians in Private Practice.

The epidemiological characterization of endometriosis, particularly with regard to its incidence, has been inadequate to date both in Germany and other countries. The goal of this study was to determine trends in the incidence of diagnosed endometriosis and changes in age structure at the time of first diagnosis over the period 2014-2022. Nationwide claims data from physicians in private practice, obtained according to relevant German law (§ 295 SGB V), were used to identify the population at risk for a first assured diagnosis of endometriosis (ICD-10-GM: N80) during each year of the study period, consisting of women and girls aged 10-52 who were insured by the statutory health insurance system and for whom at least two years of prior observation were possible. Patients were defined as incident if they were documented as having received a first confirmed diagnosis of endometriosis, according to the case definition, during the study year. The case definition comprised multiple options for validating the diagnosis. The incidence of diagnosed endometriosis rose over the period of the study from 2.8 per 1000 persons at risk in 2014 to 4.1 per 1000 in 2022, corresponding to a 44% relative increase. There was also a marked shift in age-specific incidence toward higher values at younger ages: the median age at diagnosis fell from 37 years (2014) to 34 (2022). This is the first study providing nationwide population-based data on the incidence of endometriosis in Germany. The observed rise in newly diagnosed cases is presumably mainly due to an increased awareness of endometriosis and to the growing recognition of the disease.

Mechanisms for Control of the Executive by the Bundestag

One of the functions of the representative body, alongside the legislative function, is the control function. It is a very important element of parliamentary-cabinet rule, and the way it is carried out, the instruments of scrutiny and the possibility for opposition factions in particular to use them are one of the pillars of a democratic state. Among the control mechanisms found in German law, are, among others, discharge, committees of enquiry, big and small questions, and questions to the government. The wide range of scrutiny instruments and the procedural arrangements that allow opposition representatives to use them enable the Bundestag, committees and members of the legislature to exercise effective scrutiny of the federal government’s activities.

Феномен семейного предприятия в праве Германии

Moscow State Law University (MSAL), PhD (Law), Associate Professor The article analyzes the concept, characteristics and role of family enterprises in the German economy. The criterion of classifying enterprises as family enterprises is highlighted — the unity of ownership and management, i.e. family control, and its indicators are developed. The models of family enterprises are indicated. The concept of “enterprise” in various branches of German law is studied. The conclusion is made about the non-identity of its content in connection with various goals of legal regulation. The peculiarities of property relations between spouses as participants in a family enterprise, as well as the transition of the enterprise in the order of universal succession in the event of the death of one of the participants, are revealed.

The Law of Finding Lost Movable Property in England, Germany and Scotland

Abstract The law of finding lost movable property is not only a practically significant but also doctrinally fascinating topic, which has, however, only rarely been treated comparatively. Therefore, the article analyses to what extent a common core exists between a civil law (Germany), mixed (Scotland) and common law (England) legal system and whether the three jurisdictions achieve the purposes of the law of finding. In light of the scarcity of legal literature, the article is the first detailed treatment of the subject in Scots law. It does not only demonstrate that the common core between all three jurisdictions is remarkably small but also that German and Scots law are notably similar, while English law generally takes the opposite legal approach, indicating that Scots law is more related to civil than common law in this field. Moreover, in contrast to both Germany and Scotland, England does, because of the disadvantageous legal position of the finder, not accomplish the purposes of the law of finding; that is, neither (primarily) restoring possession of lost property to its owner nor (secondarily) freeing the finder from the burden of safekeeping found property for the owner. Consequently, legislative reform of English law is indicated.

Vulnerable to Inadequate Representation?

Abstract Collective redress mechanisms pose manifold challenges for the individualistic two-party paradigm of civil procedure. The EU Representative Actions Directive – transposed into German law with the Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz – VDuG) – is built on a representative mechanism: Qualified entities (ie mostly consumer organisations) may bring actions on behalf of consumers for injunctive or redress measures against traders infringing consumer protection law. An often-neglected facet of collective redress is the vulnerability of absent plaintiffs, if collective judgments bind absent plaintiffs regardless of the adequacy of their representation. Consumers relying on their representatives could lose their actually well-founded claims as a result of inadequate representation by the representative consumer organisation and its attorneys. This article considers post-judgment safeguards against inadequate representation: As a procedural remedy, so-called collateral attacks would allow consumers to negate the binding effect of the collective judgment in cases of inadequate representation. Complementarily, the analysis turns to remedies in substantive law and considers the viability of liability actions against the representative consumer organisation or its attorneys.

Land competition and its impact on decarbonized energy systems: A case study for Germany

In densely populated countries, land competition is a key challenge in light of a growing population and the land-intensive decarbonization of energy supply. We apply an energy system model using linear optimization to Germany as an example for a densely populated and industrialized nation with a high energy demand to show how land competition affects the economics of land-intensive renewable energies. Bioenergy crops are currently cultivated on 6.5% of Germany’s land area. We find that allocating only 6% of the total land to the future energy system, which is even less than the current allocation to bioenergy crops, allows for a system that is close to the cost-minimum that we calculate when not restricting the land area. This 6% of the land area is divided into 4% for photovoltaics (PV), 2% for onshore wind and 0% for bioenergy crops. This would save 15billion€/a (15.1%) relative to the system that matches current political targets for utility-scale PV. For areas exceeding this 6%, we find that the most cost-efficient utilization comes from bioenergy crops, but they only add value to the energy system if there is plenty of land available. The value of land to the energy system is at least twice as high for 0% remaining emissions when compared to the case of 10% remaining green house gas emissions, although both scenarios are separated by less than five years according to current German law. Both our findings underline that considering the value of land as early as possible is necessary when developing state policies that shall lead to cost-efficient renewable energy systems.

Product liability in modern conditions: European reform experience

At the end of September 2022, the European Commission presented two notable documents designed to fundamentally change the current system of product liability in Europe. In part, these projects were a response to the challenges posed by digitalization and modern technology. The first document is designed to regulate liability for harm caused by artificial intelligence systems, while the second is aimed at adapting the EU Council Directive of July 25, 1985 No. 85/374/EEC to contemporary conditions. The present article sets out to review the key developments in the field of product liability in Europe. To this end, a review of the existing system of product liability in Europe is carried out. The existing product liability system is comprised of two parts: norms enshrined in national laws, as well as harmonized liability under the EU Council Directive of July 25, 1985 No. 85/374/EEC 1985. However, there is no consensus in European doctrine and practice regarding the regime of harmonized liability. While on the one hand, this regime is based on the idea of strict liability, on the other hand, there is also a reasoned opinion that the Directive factually establishes a regime of liability based on fault. On the example of German law, it is revealed that, despite the strict liability regime approved by special law, courts often focus in practice on a manufacturer’s breach of the duty of care, which once again testifies to liability based on fault. Possible factors behind the decision on the part of the European regulator to reform the existing liability system include: the increasing complexity of the goods themselves; the expansion of intermediary chains and emergence of new potential subjects of liability, including owners of aggregators; difficulties in proving the existence of a product defect and a causal link between such a defect and the resulting harm; the concept of harm in the digital age and the special role of data; providers’ liability for goods equipped with artificial intelligence technology.

Perspectives on physician-assisted suicide in mental healthcare: results of a survey of physicians and medical students.

Physician-assisted suicide (PAS) is typically associated with serious physical illnesses that are prevalent in palliative care. However, individuals with mental illnesses may also experience such severity that life becomes intolerable. In February 2020, the previous German law prohibiting PAS was repealed. Patients with severe mental illnesses are increasingly likely to approach physicians with requests for PAS. To explore the ethical and moral perspectives of medical students and physicians when making individual decisions regarding PAS. An anonymised digital survey was conducted among medical students and physicians in Germany. Participants were presented with a case vignette of a chronically depressed patient requesting PAS. Participants decided on PAS provision and assessed theoretical arguments. We employed generalised ordinal regression and qualitative analysis for data interpretation. A total of N = 1478 participants completed the survey. Of these, n = 470 (32%) stated that they would refuse the request, whereas n = 582 (39%) would probably refuse, n = 375 (25%) would probably agree and n = 57 (4%) would definitely agree. Patient-centred arguments such as the right to self-determination increased the likelihood of consent. Concerns that PAS for chronically depressed patients might erode trust in the medical profession resulted in a decreased willingness to provide PAS. Participants displayed relatively low willingness to consider PAS in the case of a chronically depressed patient. This study highlights the substantial influence of theoretical medical-ethical arguments and the broader public discourse, underscoring the necessity of an ethical discussion on PAS for mental illnesses.

Ужесточение надзора за электронными СМИ в Германии: медиасвободы под угрозой?

The article analyzes a novelty in German law that establishes general supervision by specialized government bodies over the observance of journalistic due diligence in online media. Turning to doctrinal sources, normative material and practice, the author argues that the described regulation undermines the media freedoms enshrined in Article 5 I of the Basic Law of the Federal Republic of Germany and gives rise to a number of other constitutional and legal problems.

Antibiotic Prescription Rates For Respiratory Tract Infections Treated In The Outpatient Sector Based On Routine Data From A German Health Insurance Company

Acute uncomplicated upper respiratory tract infections (RTIs) are common reasons for antibiotic prescriptions in the outpatient sector, although>90% are of viral origins and mostly self-limiting. Germany has a low antibiotic prescription rate compared to other European countries, but there are regional differences. Disease-specific quality indicators (QI) developed by the European Surveillance of Antimicrobial Consumption Network (ESAC-Net) address the prescription rates (target <20%) and choice of antibiotic (target>80%) in a general practitioner population. The aim of this analysis was to operationalise the ESAC-Net-QI using secondary data from a health insurance company at the level of diseases and healthcare facilities, as well as to analyse areas for improvement. The underlying database comprises the panel physician billing, hospital and prescription data in accordance with German law (§§ 295, 300 and 301 SGB V) of the Barmer health insurance company for the year 2022. Categorical features are presented as frequency and percentage. Maximum specificity was aimed, hence potentially risky disease courses were excluded. The overall RTI prescription rate of antibiotics was 25% in 2022 before applying inclusion and exclusion criteria (1,197,568/4,720,786). After applying the algorithm, the prescription rate for all RTI cases dropped to 6% (80,786/1,365,646). When specific RTI indications are considered, 35% (13,465/38,913) of acute bronchitis and acute sinusitis cases (4,971/14,051) received an antibiotic prescription each. At the facility level, 38% of practices (1,396/3,705) treating acute bronchitis and 41% of practices (539/1,300) treating acute sinusitis achieved the target of<20% antibiotic prescriptions. Only 29% of all RTI cases with antibiotic prescriptions (23,733/80,786) received a first-choice antibiotic. Our analysis indicates that the ESAC-Net-QI for RTIs can be calculated at case and facility levels using routine health insurance data. For specific RTIs, there were indications of improvement potential in the frequency and selection of prescribed antibiotics.

What kind of public economic law? Continuing the discussion around values and principles

The discussion on the legitimacy of distinguishing public economic law as a branch of law, undertaken in 1993 in the pages of the journal “Ruch Prawniczy, Ekonomiczny i Socjologiczny,” still arouses much controversy. It may seem that the achievements of the science of public economic law have definitively determined the independence of this branch of law. However, the debate is still ongoing in both Polish, French and German law. This is mainly due to the lack of a single definition of public economic law, the delimitation of its scope and the establishment of a method of regulation. This is not a simple matter, as the subject of public economic law is very complex. It is the economy with all its conditions and the political objectives which are set in this regard that results in public economic law going beyond the traditional division into public and private law. This part of the legal system relating to the economy is constantly developing and changing, as are the ‘new’ legal areas. The spirit of this law is to be sought in the objectives and not in the means used. In doing so, it is emphasised that in order to achieve the objectives, it is necessary to use various methods of action, which are to be increasingly effective from an economic point of view. Therefore, there is a need for multifaceted research requiring a ‘combined research approach’, taking into account various research methods, especially since public economic law is not permanent. The development of its own set of values and principles of law underlines the sectoral distinctiveness of this discipline.

Fault–Based Liability for Medical Malpractice in the Age of Artificial Intelligence: Α Comparative Analysis of German and Greek Medical Liability Law in View of the Challenges Posed by AI Systems

Fault–Based Liability for Medical Malpractice in the Age of Artificial Intelligence: Α Comparative Analysis of German and Greek Medical Liability Law in View of the Challenges Posed by AI Systems

The Adjudication of Slavery Crimes against the Yazidi by German Courts Evolving Jurisprudence and the Need for Rectifying Legal Amendments in German Law

This article examines the interpretation and application of relevant provisions of the German Code of Crimes against International Law (CCAIL) and the German Criminal Code (GCC) to the slave trade and slavery conduct committed against the Yazidi by the Islamic State of Iraq and the Levant (ISIL, IS or Da'esh). Specifically, the article takes an intersectional approach to reviewing in detail the cases of Sarah O (Higher Regional Court of Düsseldorf) and Taha Al J (Higher Regional Court of Frankfurt) while drawing observations from other German cases concerning slavery crimes against the Yazidi. These were in the majority, if against German nationals, conducted under the principle of active personality or, in the alternative, under the principle of universal jurisdiction. The article shows how German prosecutors and courts did not shy away from creatively grappling with slave trading, slavery and trafficking conduct committed by ISIL.Cases, such as Nadine K, demonstrate a positive evolution towards cumulative charging and convictions that afford comprehensive legal redress to persons affected by the slave trade, slavery and trafficking. Still, the absence of the slave trade as an enumerated provision of crimes against humanity and war crimes in the CCAIL can be felt and must be rectified to realise legal protection as envisioned by customary international law.

X. „Eycke von Repkow war kein Revolutionär“ – Festrede von Hilde Benjamin am 28. Juni 1959 im Eike-von-Repgow-Dorf Reppichau

Summary The village Reppichau in Sachsen-Anhalt, situated near the towns Dessau, Köthen and Aken (former principality of Anhalt), is closely connected with Eike von Repgow – the author of the most famous mediaeval German law book “Saxon Mirror” (Sachsenspiegel). The law book was written by him between 1220 and 1235. Based on this fact, representatives of science, politics and justice periodically organized in collaboration with the villagers anniversary celebrations, for example 1934 (700st year of the death of Eike von Repgow) and 1959 (800st year of the first documented mention of the village Reppichau). So it happened that the minister of justice of the German Democratic Republic (GDR), Hilde Benjamin (1902–1989), held a keynote speech in Reppichau on 28 June 1959. She was one of the leading representatives of the ruling Socialist Unity Party of Germany during the early years of the GDR. She became famous as a presiding judge in political show trials with court rulings including exceptionally harsh punishments up to the death penalty. This women, who was also known as “Red Hilde” or “Bloody Hilde”, used the opportunity of her speech in Reppichau in order to integrate Eike von Repgow, the Saxon Mirror and the villagers into the ruling ideology of the early GDR. Furthermore, she attacked the NATO in general and the Federal Republic of Germany in particular with propaganda phrases. The text of this speech, representing an interesting example of contemporary legal history, is edited here for the first time based on an original copy.

LEGAL NATURE OF INTERNATIONAL JURISDICTION AGREEMENTS

The problem of the legal nature of international jurisdiction agreements is directly related to the issue of their regulation in the national legislation, since, depending on the material or procedural quali cations of this institution, particular regulatory requirements for such agreements are to be established. This article analyzes various approaches to the de nition of the legal nature and, consequently, the regulation of international jurisdiction agreements on the example of English, German and Russian legislation. The material quali cation chosen in English law means a more exible regulation of the agreements: the possibility to conclude an oral jurisdiction agreement as well as the possibility for one party to use remedies (antisuit injunctions, damages) in case of violation of the jurisdiction agreement by the other party. The procedural quali cation of jurisdiction agreements in German law presupposes the establishment of stricter formal requirements (requirements for the subjects of agreements, form (written or oral with written con rmation), time of the conclusion of the jurisdiction agreement). In Russian law, this issue has not been nally resolved and is debatable, so that the legislative 181regulation of agreements on jurisdiction is generally fragmentary and is replaced by the construction and interpretation of norms in judicial practice.

Comparison of the Provisions of the Austrian and German Criminal Procedure Laws on Victims with the Hungarian Legislation

Victims are necessary participants in the criminal process, but until the 20th century they were marginalised. Since then legislators have recognised the importance of victim protection. The Council of Europe and the European Union are also striving to regulate victims' rights and to establish minimum standards, naturally with special emphasis on the rights and protection of the most vulnerable victims. The preamble of the Hungarian Criminal Procedure Act treats the increased protection of victims and the enforcement of their rights as a priority objective. In my study, I will compare the provisions of the Hungarian Criminal Procedure Act with the provisions of the Austrian and German laws on victims. I have chosen these two countries for the comparison because the Hungarian legal system, due to its historical traditions is the closest to them. I believe that it is primarily the practice of these two countries that should be examined and compared with Hungarian legislation.

THE PROCESS OF THE ONE-TIER CORPORATE GOVERNANCE STRUCTURE ESTABLISHING IN UKRAINE AND THE HISTORICAL TENDENCIES OF ITS DEVELOPMENT

The article explores the tendencies of the one-tier corporate governance structure emergence in corporations operating within the territory of Ukraine through the study and analysis of legislative acts and relevant academic research. The purpose of the article is to investigate the continuity of the historical process of establishing the one-tier corporate governance structure within the territory of Ukraine. The conclusion formulated in the article is that the emergence of the one-tier corporate governance structure occurred at the moment when two circumstances converged for the first time in the corporation’s management structure: 1) separation of ownership (shareholding) from control; 2) Combining management and control functions in one collegial body (mostly named the «Board of Directors»). The author suggests that the formation of a collegial management body in corporations within the territory of Ukraine is a long-standing tradition, whereas the formation of a collegial management and control body never occurred until the adoption on February 27, 2022, the Law of Ukraine № 2465-IX “On Joint Stock Companies”. There is an analysis of the historical development and revaluation of corporate relations influenced by French law, which was hindered by the reluctance of the Russian Empire government to allow incorporation outside state control, and later by the inconsistent Soviet authorities’ policies in corporate law. The author investigates the historical development of corporate governance norms influenced by German law, which operated in the Austro-Hungarian Empire and later in Poland, extending its legislative influence for a certain period onto the territory of Ukraine. After regaining the independence of Ukraine on August 24, 1991, national corporate law both used to ensure the rights of shareholders to incorporate and to define the boundaries of corporate legal personality. All this formed the basis for accepting the one-tier corporate governance structure in 2022. The author considers the unquestionable acceptance of the one-tier corporate governance structure, which is not inherent to Ukrainian law, in the form it was formalized in several Western European countries, as the key characteristic of national legal norms.