Absolute rights give the person entitled an exclusive , legally protected right to rule over a certain legal position, which everyone must respect. The principle of absoluteness is one of the dominant principles of property law . Absolute rights work against everyone ( Latin inter omnes , also erga omnes ) and thus form the counterpart to relative rights , which in principle only work between the people involved ( Latin inter partes ).
An absolute right is characterized by the fact that the right holder excludes others from using it (exclusion function = negative scope) and can use the right alone (usage function = positive scope). The absolute rights can be divided into personal rights , real rights and intellectual property rights (quasi-real rights). The right to the established and exercised business enterprise is - with restrictions - also an absolute right. Whether marriage is also an absolute right is disputed.
Because of their validity vis-à-vis everyone, these rights must also be recognizable and determinable for everyone. There is therefore a compulsory type ( numerus clausus ) and the principle of publicity . The recognizability (publicity) serves z. B. the entry in the land register or in a register (patent, trademark). When it comes to property , absolute law U. be recognizable by possession ( presumption of ownership , BGB). In copyright law, the absolute right becomes recognizable through the perceptible work created by the author .
Absolute rights are protected against everyone. Defense and compensation claims exist to protect against unlawful interference . This includes removal and injunctive relief , damages claims and enrichment claims from Eingriffskondiktion .
Absolute rights are not subject to the statute of limitations .
Only the mandatory universal international law ( ius cogens ) like the core of human rights (prohibition of genocide , prohibition of slave trade, prohibition of piracy), the prohibition of violence and the prohibition of war of aggression develop absolute effects ( erga omnes ). These rules are not mandatory and must therefore be observed in individual cases by every subject of international law, even if there is no contractual obligation .
- Hans Stoll : Injustice types when absolute rights are violated. Archives for civilist practice 162. Vol., H. 3 (1963), pp. 203-236.
- Martin Gebauer , Stefan Huber (Hrsg.): Legal positions and traffic protection. Continuity and reforms in a comparative perspective. Results of the 34th Conference of the Society for Comparative Law , Marburg, September 12-14, 2013.
- C. Löser: Schematic overview of absolute rights in the system of legal objects 2007/2010 (PDF file; 66 kB)
- Jörg Schroth: Overview of some different types of rights 2002
- Brox, Hans and Walker, Wolf-Dietrich: General part of the BGB. 42nd edition. Munich 2018, p. 281 f.
- Brox, Hans and Walker, Wolf-Dietrich: General part of the BGB. 42nd edition. Munich 2018, pp. 277–279.
- Lothar Philipps: Absolute and relative rights and related phenomena. The combinatorial recording of the design options . In: Ilmar Tammelo, Erhard Mock (ed.): Legal theory and legislation, Festschrift for Robert Weimar . Verlag Peter Lang, Frankfurt am Main / Bern / New York 1986, pp. 391-399.
- Brox, Hans and Walker, Wolf-Dietrich: General part of the BGB. 42nd edition. Munich 2018, pp. 278–280.
- International Law Federal Agency for Civic Education , 2015