Rights In Germany Research Articles

The Author’s Right of Integrity in Public Contracts in Estonia Based on Architectural Work

The paper presents analysis of whether an author’s moral rights are transferable or licensable in public contracts. At present, the European Union lacks a unified approach to regulating intellectual-property rights in public procurement: its public-procurement directives leave open the option of assigning these rights to a particular contracting entity and do not set minimal or default conditions for handling them in case the public contract does not specify intellectual-property rights’ allocation. The paper delves into the question of whether moral rights are transferable/licensable and of how moral rights should be regulated in public contracts in Estonia through the lens of analysis based on legal literature. Specific attention is given to case law on moral rights in Germany, France, and Spain, in aims finding a mechanism for moral rights’ regulation that is suitable for the Estonian setting. These first steps of examination reveal that the essence of moral rights precludes them being transferable since moral rights are bound to the personality of the author. Initial analysis shows also that moral rights in Estonia are only partly licensable, with only those moral rights that overlap the author’s economic rights proving licensable, while the rights connected to the author’s personality are not subject to licensing. For these reasons, courts need to weigh how authors might exercise their moral rights such that any transfer of their those rights cannot enable authors to interfere with the exercise of the economic rights. This entails limiting the exercise of moral rights, a matter that merits deeper examination.

Racialization through (un-)deservingness: political discourse on poverty migration and access to social rights in Germany

Based on the political debate preceding the introduction of two laws that restricted access to social rights for EU citizens, the article examines the construction of deservingness regarding access to the welfare system for EU citizens in German political discourse. Connecting theories of racial capitalism, whiteness, and deservingness, I show how a racist and classist discourse categorized poor Romanian and Bulgarian nationals, including Roma, as poverty migrants and as disposable labour. The debate on poverty migration foregrounds the permanence of once established categories and the immutability of ascribed negative characteristics, such as laziness, potential criminality and a lack of assimilation into the labour market. The discourse on disposable labour serves to strengthen hierarchies of labour power, which are deeply racialized. It ensures the ready availability of cheap and exploitable labour power, while at the same time externalizing its social costs. Both discourses and the resulting restrictive laws create and reinforce an edge population made up of poor Romanians, Bulgarians and Roma, who are portrayed as not assimilable to the labour market and hence not deserving of welfare support. The hierarchies of whiteness and Europeanness translate into hierarchies of mobility, confining the affected population to edge places, that is, the peripheralized East of Europe.

Oppression of Catholics in Prussia does not explain spatial differences in support for the radical right in Germany. A critique of Haffert (2022)

A growing literature links contemporary far-right mobilization to the “legacies” of events in the distant past, but often, the effects are small, and their estimates appear to rely on problematic assumptions. We re-analyse Haffert's (2022) study, a key example of this strand of research. Haffert claims that historical political oppression of Catholics in Prussia moderates support for the radical right AfD party among Catholics in contemporary Germany. While the argument itself has intellectual merit, we identify some severe limitations in the empirical strategy. Retesting the study's cross-level interaction hypothesis using more suitable multi-level data and a more appropriate statistical model, we find a modest overall difference in AfD support between formerly Prussian and non-Prussian territories. However, this difference is unrelated to individual Catholic religion or to the contextual presence of Catholics. This contradicts the oppression hypothesis. Our study thus provides another counterpoint to the claim that historical events have strong and long-lasting effects on contemporary support for the radical right. We conclude that simpler explanations for variations in radical right support should be exhausted before resorting to history.

The Risks to Germany’s Peace and Security Generated by the Reichsbürger Movement or “Citizens of the Reich” Based on Political and Religious Convictions

In recent years, the extreme right in Germany has expanded, the phenomenon gaining momentum. The far-right groups and organisations in Germany were, are and will be dominated by an ideology that amalgamates religious or non-religious ideas but that defends German culture and spirituality according to its visions and objectives. Adherents of far-right ideology combine these ideas with conspiracy theories, and on such a background, some of them change their attitude towards society and become violent. For example, right-wing extremists attacked the Parliament, the symbol of democracy, for the first time in Germany, namely on 29 August 2020, and later on 6 January 2021, protesters, including right-wing extremists, attacked the Congress of the United States of America. One of the organisations, such as the Reichsbürger Movement, which means Citizens of the Reich, who reject the current borders of Germany and want the return to those established in 1871, set up cells and planned activities recently catalogued as terrorists by German prosecutors, in December 2022 and May 2023. For the Citizens of the Reich, there is no Federal Republic of Germany because this country is part of a conspiracy and part of a satanic state system, and they recognise only Imperial Germany. According to the religious beliefs of some of them, the imperial constitution was received from God and must be respected, and they are in an apocalyptic battle between good and evil. The model invoked by some of them is that of Jesus Christ who changed society, erroneously invoking biblical precepts to bolster their claims.

Riscurile la adresa păcii și securității Germaniei generate de mișcarea Reichsbürger sau „cetăţenii Reichului” pe fondul convingerilor politice și religioase

In recent years, the extreme right in Germany has expanded, the phenomenon gaining momentum. The far-right groups and organisations in Germany were, are and will be dominated by an ideology that amalgamates religious or non-religious ideas but that defends German culture and spirituality according to its visions and objectives. Adherents of far-right ideology combine these ideas with conspiracy theories, and on such a background, some of them change their attitude towards society and become violent. For example, right-wing extremists attacked the Parliament, the symbol of democracy, for the first time in Germany, namely on 29 August 2020, and later on 6 January 2021, protesters, including right-wing extremists, attacked the Congress of the United States of America. One of the organisations, such as the Reichsbürger Movement, which means Citizens of the Reich, who reject the current borders of Germany and want the return to those established in 1871, set up cells and planned activities recently catalogued as terrorists by German prosecutors, in December 2022 and May 2023. For the Citizens of the Reich, there is no Federal Republic of Germany because this country is part of a conspiracy and part of a satanic state system, and they recognise only Imperial Germany. According to the religious beliefs of some of them, the imperial constitution was received from God and must be respected, and they are in an apocalyptic battle between good and evil. The model invoked by some of them is that of Jesus Christ who changed society, erroneously invoking biblical precepts to bolster their claims.

Statelessness and the Recognition of the Right to Have Rights in Germany

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재산권 보장을 위한 입법의 방향성 논의

Recently, the problem of soaring real estate prices in Korea has emerged as a public concern. As a result, the National Assembly revised the law related to real estate to pursue a change in the existing economic order. The constitution of our country adopts democracy and is based on the principles of national sovereignty and capitalism. These constitutional principles apply to all sectors of the state. The constitution stipulates that 'the economic order of Korea is based on respecting the economic freedom and creativity of individuals and companies.' In other words, the constitution explicitly states that it is based on the private property system and private autonomy. The Constitution and Civil Law also have specific rules for guaranteeing property rights. There are also restrictions on people's property rights and regulations on public use. However, if the people are divided due to the legislative action of the National Assembly, great confusion can occur nationally. Currently, Korea is conducting a post-mortem review of whether the legislation of the National Assembly is unconstitutional. Grana has not introduced a pre-screening system. Therefore, it is necessary to fully review the controversial revisions of the law. To this end, I would like to examine the legislative process and interpretation of the restrictions on property rights in Germany and France. In addition, it reviews decisions on property rights of the Constitutional Court of Korea. Through this, it is necessary to derive a clear criterion for infringement of property rights against laws related to property rights restrictions.

Enforcement of the right to a bond of arrest in insolvency proceedings in Russia and Germany

Creditors whose claims are secured by the debtor’s property have a privileged position in the insolvency proceedings. The legal status of depositors and the manner in which their claims are met are the subject of close research. However, the problem of bail is little studied in Russian doctrine. The purpose of the present study is to formulate, on the basis of regulation and doctrinal thinking in Germany, where the right to a bond of arrest has been successfully applied, a framework for the exercise of the right of a bond of arrest in insolvency proceedings (bankruptcy) for Russian legislation. The main methods of the study are: Comparative law, which allows the study of the theoretical provisions of the right to bail and the proposal of appropriate legislative designs; as well as the historicallegal method combined with the systematic method of analysis of the problem under investigation. Synthesis, interpretation and teleological methods are also used. Since the study of property rights in Germany has had a significant impact on the Russian doctrine, the German experience of the legal regulation of a creditor whose claims are secured by the seizure of property has been used in the analysis of the problems of a bond of arrest. The legal nature of the right to bail, which is the subject of debate in the doctrine of Germany and Russia, has been analysed. It has been concluded that the right to an arrest bond is a special right of bail, together with a contractual and legal bond. It is substantiated that there is a gap in Russian law regarding the legal position of a creditor in insolvency proceedings (bankruptcy) in the event of securing his claims by seizure of the debtor’s property. The preferential right of tax authorities to obtain satisfaction in insolvency proceedings in the attachment of taxpayer property, qualified as a legal security, introduced in Russian tax legislation, It is considered to be a breach of the balance between public and private interests. It is justified that the right to a bond of arrest is subject to the law of procedural law and proposals have been made to regulate the legal position of creditors entitled to a bond of arrest in insolvency proceedings (bankruptcy).

Protection of the rights of performers in accordance with German law

Keywords: rights of the performer, moral rights, rights to use, communication tothe public, the right of the performer to demand payment of remuneration, the validityperiod of the rights to use
 The article examines the protection of performers' rights in Germany, introduced by the Act amending copyright regulations of 24 June 1985. The Copyright Act includes Part 2 «Neighboring Rights», section 3 of which deals with the protection of performers' rights, and the law itself is called the «German Copyright and Neighboring Rights Act». The German Law of 10 September 2003 on the regulation of copyright in the information society completely amends §§ 73−83 of the Copyright and Related Rights Act, which governs the protection of performers' rights under the WPPT.The provisions of § 73 «Performer» are extended to the performance of works of folk art. Paragraphs 74−76 are devoted to the protection of moral rights, which were indicated fragmentarily by previous legislation. In the corrected form, moral rightstake precedence over rights of use, which confirms the special adherence of German law to them. Whereas under previous legislation so-called “consent rights” were granted to performers, the updated paragraphs grants the present rights of use:recording, reproduction and distribution, communication to the public, rights of use, the right of the performer to demand payment of remuneration, the sharing of several performances.In Germany, the rights of the organizer of performances are protected. If the performance of the performer is organized by a company, then the rights to use belong, in addition to the performer, also to the owner of the company. According to §83, the provisions of Section 6 «Copyright Restrictions» of Part I «Copyright» of the Copyright and Related Rights Act apply respectively to the restriction of the rights of the performer and the organizer of the performance.The protection of performers in Germany is in accordance with the provisions of the Rome Convention, the WPPT, the relevant EU directives. With further improvement of the protection of the rights of performers in Ukraine, it would be useful to use the experience of Germany regarding the protection of the rights of the organizer of a performance and determining the term for the protection of rights to performances recorded on a phonogram.

‘What about it is unclear? I mean I was born here:’ Ungeklärte Staatsangehörigkeit and the (re-)production of de facto statelessness in Germany

ABSTRACT This paper examines the administrative category ‘ungeklärte Staatsangehörigkeit’ (‘unclear nationality’) and its implications for citizenship rights in Germany. An unclear nationality represents a de facto statelessness but does not concede the rights established for de jure stateless people. It impedes naturalization in Germany and complicates access to a travel document and settlement permit. The paper analyses the (re-)production of unclear nationality and traces its effects on the life of a woman born in Germany with an unclear nationality since birth. Her experiences disclose the difficulty of navigating the German bureaucratic system and its discretionary power. Her experiences also reveal how a state of limbo is perpetuated over generations, confining individuals in a territory whose bureaucratic apparatus views them as foreign. Unclear nationality thus functions as a technology of exclusion: by placing the person in a yet-to-be determined nationality, it interpellates them not as subjects of rights but objects of clarification.

Things Will Never be the Same Again: How the Coronavirus Pandemic is Changing the Understanding of Fundamental Rights in Germany

Abstract In the coronavirus pandemic, the challenges for the doctrine of fundamental rights are significantly different from comparable issues in all previous crises in terms of their intensity, dynamics and the uncertainty of the risk. Scrutiny of the proportionality of the measures against the COVID-19 virus caused serious difficulties, and these difficulties could barely be overcome in the most critical phases during the first and second wave of infections. Furthermore, the combination of intensity, dynamics and uncertainties has forced federal and state legislators to make seemingly arbitrary differences in many cases. Therefore, in the jurisprudence of the administrative courts on the restrictions of fundamental rights during the coronavirus pandemic, there has been a shift in the standard of justification from aspects of freedom to aspects of equality. The pandemic has also led to the questioning of central categories of state liability law that are closely related to fundamental rights. Last but not least, the pandemic raised the question of the essence of fundamental rights. On the whole, the pandemic has made the limits of the efficiency of fundamental rights visible. The higher the expectations of optimization requirements and new dimensions of fundamental rights protection under normal conditions, the greater the disappointments will be about the effectiveness of fundamental rights in the case of an emergency such as the coronavirus pandemic. The luxury of fundamental rights afforded under normal conditions becomes a problem in an emergency situation. This carries the risk of obscuring the essence of fundamental rights protection.

30 years of United Nations Convention on the Rights of the Child in Germany

Abstract Thirty years have passed since Germany ratified the United Nations Convention on the Rights of the Child and is now on the verge of incorporating it into its Basic Law. This article takes a closer look at recent developments in strengthening children's rights in Germany, focusing on vulnerable children and youth, such as members of the Romani minority, and their educational development. While some improvements have been made in education, the COVID-19 pandemic brought new dimensions into play and exacerbated their vulnerability.

The Principle of Gender Equality in the Texts of the Constitutions of Western European Countries

The article analyzes the provisions of regulatory legal acts that ensure the enforcement of women's rights in Germany, Italy, Spain, Sweden, Finland, Iceland, etc. The paper shows the effectiveness of the Northern European approach to overcoming obstacles to gender equality through the establishment of special state agencies and government authorities. As generally recognized leaders in the field of women's rights this group of states effectively implements national mechanisms of gender equality. It is worth remembering that progress in achieving gender equality in Western countries is due to the intensity of the women's movement itself and the growth of women's representation in governments, parliaments and public organizations. Besides we should mention a broad anti-discrimination legislative framework and a system of state agencies implementing gender equality strategies in Europe. The systematic development of the concepts of equal opportunities has allowed women in these countries to take a secure place in the labor market on equal terms with men. The article shows that gender equality can be defined to a certain extent as a kind of "sameness" of men and women. However, this sameness should not be equated with identity. Alas, it is impossible to equate a woman and a man, at least the reason for this is mental and physiological differences, plus the obvious difference in their biological functions. It has proved that despite numerous benefits, women continue to face various forms of discrimination. Finally, as the experience of Western countries shows, to achieve equality de facto it is necessary to significantly increase the activity of women themselves, civil society institutions, to strengthen the role of state authorities in the implementation of true gender equality.

Administering the Union citizen in need: Between welfare state bureaucracy and migration control.

How to determine whether mobile Union citizens have a right to social assistance? Research has shown how Western European Member States have made efforts to restrict Union citizens’ access to their welfare systems over the past decade, whereby lawful residence has increasingly become the linchpin for entitlement. Member States have responded strikingly differently, however, to the complex administrative puzzle of dealing with open borders, the ability to verify lawful residence and the right to social assistance over time. This article makes an analytical and empirical contribution to existing literature by asking how Member States adjust their welfare/migration administrations to fit the Union’s free movement regime and what implications this has for Union citizens. Based upon comparative case studies into the administration of social assistance rights in Germany, Austria and the Netherlands, the article develops a typology of three different models of administering Union citizens’ access to the welfare state: the form, signal and delegation models. Demonstrating how bureaucratic design impacts the stratification of social rights in the Member States in different ways, the article concludes that studying alternative administrative models offers important insights into the functioning of territorial welfare states in open border regimes.

Пенсионное обеспечение женщин в Федеративной Республике Германия

The issue of whether there are equal rights in Germany between women and men in terms of pensions. The differences in the amount of pensions to which women and men are entitled are analyzed. It is argued that one of the main reasons for these disparities is the persisting gender pay gap between men and women in Germany. It is postulated that the recently introduced “basic pension” for long-time employees will be a step toward solving the problem.

What Do Migrants Know About Their Childcare Rights? A First Exploration in West Germany

Although an increasing number of studies emphasise migrants’ lack of knowledge about their childcare rights as a crucial barrier to their childcare usage, almost none examines the conditions under which migrant families acquire this knowledge. This study contributes to the literature by exploring potential individual factors determining migrant families’ knowledge about their childcare rights in Germany. I use unique data collected through the project Migrants’ Welfare State Attitudes (MIFARE), in which nine different migrant groups in Germany were surveyed about their relation to the welfare state, including childcare. Analysing a total sample of 623 migrants living with children in their household and by using logistic regression analyses, I find that human and social capital play significant roles in explaining migrants’ knowledge about their childcare rights. Migrants who speak the host language sufficiently are more likely to know about their childcare rights; however, it does not matter whether migrants are lower or higher educated. Moreover, I observe that migrants benefit from their co-ethnic relations only if childcare usage is high among their ethnic group. Based on these results, policy recommendations are discussed in order to increase migrants’ knowledge about their childcare rights in Germany.

Discussions on Digital Basic Rights in Germany

Discussions on Digital Basic Rights in Germany

PERFORMATİF BİR BAKIŞ AÇISINDAN ALMANYA’DAKİ TÜRKÇE KONUŞANLARIN DİL HAKLARINI ARAMA PRATİKLERİ

Turkish speakers’ linguistic rights in Germany have been central to the debates about their ties to Turkish culture as well as their place in the German society. Scholars have contributed to our understanding of such debates by conceptualizing linguistic rights as human rights and as cultural rights. These conceptualizations reveal legal inequalities and aim at finding ways to overcome them. In this article, I build on this literature, shifting the focus from Turks’ linguistic rights to their rights claiming practices. For this, I introduce feminist political scientist Karen Zivi’s performative approach to rights into the discussion on Turkish speakers’ linguistic rights in Germany. This performative perspective provides an alternative to the widely used frameworks of integration, discrimination, human rights and cultural rights. This approach demonstrates that Turkish speakers in Germany negotiate their place in their society by claiming their linguistic rights. This article also shifts the focus in these discussions away from the German state and to Turkish speakers themselves and establishes Turkish speakers in Germany as political actors with agency and their rights claiming practices as attempts to reshape the way they are understood in the German society.

Державна реєстрація в Німеччині: становлення, розвиток, сучасний стан

У статті розглянуто теоретичні та практичні ас-пекти правової природи становлення, розвитку та сучасного стану державної реєстрації в Німеччині. Проаналізовано сутність та особливості механізму державної реєстрації прав у Німеччині. Актуальність цієї тематики зумовлена наявністю значної кількості прогалин з боку національного законодавства, яке ре-гулює відносини безпосередньо у сфері державної реє-страції речових прав на нерухоме майно, їх обтяжень. Дослідивши досвід інших країн світу, можна зробити висновки та запропонувати інструменти для усунення прогалин і більш ефективного збереження, забезпечен-ня і захисту прав осіб (фізичних чи юридичних), гаран-тованих законодавством.У статті досліджено систему державної реєстрації Німеччини, країни, яка стала базою та прототипом для української системи реєстрації. Право власності – це базовий правовий інститут у кожній країні світу. Ви-никнення, розвиток цього інституту – показник еконо-мічного зростання країни. Захист правового інституту прав власності є невід’ємним складником у розвинутій державі. З метою правильного розуміння та тлумачення сутності становлення інституту прав власності, зокрема закріплення (реєстрації) прав за конкретною особою, необхідно дослідити процес виникнення та формуван-ня витоків виникнення (закріплення) прав у минулому.Аналіз публікацій свідчить про відсутність комп-лексних досліджень, розрізненість наукової літера-тури. Дослідженням цієї теми займалися українські науковці О.О. Губанов, М.В. Жушман, Д.І. Змитро-вич, М.П. Ільницький, А.А. Литвиненко, Т.В. Лісні-ча, К.І. Людькова, Я.П. Павлович-Сенета, М.С. Рибак, М.В. Різак та інші. Мета статті – проаналізувати витоки, розви-ток та становлення системи державної реєстрації в Німеччині, оскільки саме ця країна стала прото-типом національної системи державної реєстрації. Проаналізувавши та виявивши сильні позиції системи державної реєстрації, можливо запропонувати кон-кретні дії для реформування національної системи дер-жавної реєстрації в Україні.

Montée de la droite radicale en Allemagne et en Europe de l’Est : le passé est à venir

Cet article décrit l’ascension récente de la droite radicale en Allemagne et les raisons de cette ascension, en lien avec la situation en Europe de l’Est, et en prenant pour point de référence l’histoire des partis de la droite radicale en Europe occidentale sur les trente dernières années. Selon l’auteur, l’extrême droite en Europe de l’Est n’a pas suivi la même trajectoire que son homologue à l’Ouest. Cependant, les deux modèles se retrouvent en Allemagne avec un radicalisme politique plus prononcé à l’Est qu’à l’Ouest, ce qui montre que des évolutions propres à l’Europe de l’Est ont eu une influence sur l’extrême droite allemande. Pour l’auteur, ce constat devient manifeste et, après avoir clarifié certains concepts et cartographié ce phénomène, il en explique les raisons, en portant attention à l’idéologie extrémiste, à la volatilité électorale dans un contexte de partis sous-institutionnalisés et à la mobilisation de rue de la droite radicale en Allemagne de l’Est et en Europe de l’Est.