Public liability

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The official liability is a key element of the German state liability law . It follows from § 839 para. 1 sentence 1 of the German Civil Code (BGB) in conjunction with Art. 34 sentence 1 of the Basic Law (GG). According to this, the state is liable for compensation for damage caused by a culpable breach of official duty by a public official in the exercise of a public office entrusted to him. The official liability claim is a tortious claim.

History of origin

Section 839 BGB came into force on January 1, 1900 and has remained essentially unchanged since then. However, his normative environment has changed, as a result of which the opposing party has changed: In the German Empire , § 839 BGB basically represented the sole legal basis of the official liability claim. According to this, the civil servant was personally liable for damages. This was based on the consideration that unlawful action represented an individual exceeding the entrusted mandate by an official, for which the state could not be held responsible. However, according to Art. 77 of the Introductory Act to the Civil Code, the German Länder had the option of introducing liability on the part of the Land instead of personal civil servant liability. This should protect the injured party from the risk of the official's bankruptcy and at the same time reduce the official's liability risk. Most countries made use of the possibility of transferring liability.

Art. 131 of the Weimar Constitution (WRV) made the transfer of civil servants' liability to the state the rule, so that throughout Germany, instead of the civil servant, the corporation that had employed them was liable. The Parliamentary Council , which drafted the Basic Law between 1948 and 1949, took up this transfer of liability and standardized it in Art. 34 sentence 1 GG with only minor changes in content compared to the model. Therefore the general public liability claim currently results from § 839 BGB in connection with Art. 34 S. 1 GG.

The official liability claim is directed against the corporation in whose service the official is accused of having breached official duties. If the latter does not have an employer, for example because the civil servant is an entrusted person , the body that has entrusted the officer with a task is liable.

Factual requirements

Acting by an official in the exercise of an office

A claim to official liability is linked to the actions of an official. A civil servant is someone who exercises a sovereign activity. § 839 Abs. 1 BGB uses the term of the civil servant in the sense of liability law. Civil servants are therefore not only those with civil servant status , but also public employees . Private individuals who work in the sphere of responsibility of a public authority are also civil servants in the sense of liability law. This applies, for example to persons with a public task mortgaged are about TÜV examiners. The administrative assistant who performs an auxiliary activity for the public sector, such as a school guide, is also considered an official . Finally, a self-employed person can also be considered a civil servant if an authority employs him to perform its tasks. This applies, for example, to a towing company who tows a vehicle on behalf of the police .

The broad understanding of the concept of a civil servant in the context of the official liability claim is based on the influence of Art. 34 GG. In contrast to § 839 BGB, this does not use the term civil servant , but is linked to the performance of a public task regardless of the status of a person. This should allow the state to be attributed any behavior that is related to such a task. The legal relationship in which the sovereign is employed should not have any influence on liability. Since Art. 34 GG takes precedence as constitutional law, jurisprudence expands the term of the civil servant in § 839 BGB by the figure of the civil servant in the sense of liability law in a constitutional manner.

Section 839 of the BGB is linked to the actions of an official who exercises German sovereignty. It therefore does not apply to the actions of institutions and servants of the European Union . This is Art. 340 para. 2 of the Treaty on the Functioning of the European Union (TFEU) is relevant normalizes a no-fault compensation claim against the Union.

The official acts must be carried out in the exercise of a public office. This applies if it is spatially and temporally related to the fulfillment of a sovereign task and appears as part of a sovereign issue. This is missing, for example, in the case of private law action by a public authority, for example on the basis of a guarantee contract ( Section 765 BGB). A public office is also not exercised if a police officer uses a company car for private purposes.

Breach of official duty

Liability according to § 839 BGB still requires the violation of an official duty. This is a duty that a public official has towards his employer. Official duties result in particular from laws, administrative regulations and directives . However, not every official duty is suitable for substantiating third party claims. This only comes into consideration in the case of obligations which at least also aim to protect the claimant. A breach of an obligation that only serves to protect the general public or another public authority cannot therefore justify a claim to official liability.

The obligation to act in accordance with the law is an official duty to protect third parties with extensive content. This is rooted in the binding of public authority to the law, standardized by Article 20, Paragraph 3 of the Basic Law . It obliges civil servants not to violate applicable law when exercising official activities. This forbids, for example, the violation of someone else's legal interest. A public official must also fulfill his duty to maintain safety . A municipality that neglects the maintenance of its traffic routes, for example, violates this. If a public official doubts the legality of a legal norm that he should apply in the course of his work, he must seek judicial review. If, for example, a building permit authority considers a development plan to be null and void, it cannot simply execute it, but must endeavor to clarify the legality of the plan. Finally, a public official must interpret legal norms in a reasonable manner and exercise his discretion correctly.

Another official duty is the duty to act as efficiently as possible. A civil servant who culpably delays a decision violates this obligation. After all, civil servants must provide citizens with correct information and provide them with adequate education and advice.

When legislating, the legislature acts exclusively in the general interest. Therefore, the enactment of an unlawful law does not in principle trigger any liability for damages according to § 839 BGB. This is only possible in exceptional cases, for example in the case of project-related legal planning.

fault

The acting official must have caused the breach of official duty. According to Section 276 (1) of the German Civil Code (BGB), this presupposes that he is accused of intent or negligence . Whoever recognizes the violation of an official duty and at least approves it acts willfully. In accordance with Section 276 (2) of the German Civil Code (BGB), anyone who fails to recognize the unlawfulness of his / her actions because he / she neglects the care required in traffic is negligent.

If a public official incorrectly applies a legal norm to an individual case, this happens negligently if he disregards the highest court rulings or misunderstood the clear content of the norm. However, if a norm is ambiguous and has not yet been developed through case law, the civil servant does not act negligently if he interprets the norm in a legally justifiable manner. According to the Collegiate Courts Directive , a civil servant is still not at fault if a collegiate court incorrectly assesses his conduct as lawful. This is based on the consideration that a public official cannot be expected to have better legal knowledge than a multi-judge panel .

Can an authority of a duty not comply because it is not sufficiently equipped in terms of personnel or objective, is this lack of organization without personal fault of authorities employee's organizational fault is.

damage

Ultimately, damage must have occurred as a result of the breach of official duty. Damage is an involuntary loss of a legally protected good. Which items are eligible for damage is generally assessed according to general damage law ( § 249 - § 254 BGB).

According to Section 249 (1) of the German Civil Code (BGB), the damaging party is obliged to restore the condition that would have existed if the damaging event had not occurred. According to the difference hypothesis, the amount of the damage results from a comparison of the existing financial position of the claimant with that which would exist if the public official had acted lawfully. If the last-mentioned financial situation shows a greater value, there is damage.

According to general damage law, the restoration takes place through restitution in kind . However, this does not apply to liability according to § 839 BGB; this is aimed exclusively at replacement in money. This is based on the fact that the state's obligation to pay compensation due to the assumption of liability according to Art. 34 sentence 1 GG corresponds to the liability that would apply to civil servants. However, as a rule, he could not eliminate damage resulting from a breach of official duty by restitution in kind, which is why he was only liable for monetary compensation. The indemnifiable damage also includes lost profits ( § 252 BGB) and immaterial damage ( § 253 BGB). As a result, the potential scope of an official liability claim is above average compared to other state liability claims.

The necessary causality between breach of official duty and damage exists if the damaging act cannot be ignored without the damage being eliminated and it was not so unforeseeable that the damaging party did not have to reckon with it.

Grounds for exclusion

§ 839 BGB excludes a claim from official liability in certain groups of cases.

Subsidiarity, § 839 Abs. 1 S. 2 BGB

Content and purpose

If the civil servant only acts negligently, the claimant cannot claim against a government agency pursuant to Section 839 (1) sentence 2 of the German Civil Code (BGB) by way of official liability insofar as he can obtain harm in other ways. This applies, for example, if a third party is liable in addition to the position claimed, for example another damaging party. The subsidiarity clause is a negative element of the official liability claim. Anyone who asserts a claim based on official liability in court must therefore prove that only the state is liable to them as the debtor.

With § 839 Abs. 1 S. 2 BGB the legislature aimed to reduce the liability risk of the civil servant, so that he is not hindered in his work by fear of personal liability. Since the official liability on the basis of Art. 34 GG in the meantime does not affect the civil servant personally, but his corporation, this protective purpose is outdated. Because the legislature has not yet revised the subsidiarity clause, jurisprudence has developed case groups through teleological reduction of Section 839 (1) sentence 2 BGB in which the norm is not applied or only to a limited extent.

Exceptions

The subsidiarity clause does not apply, for example, if the state liability is linked to the fact that a public official has caused a traffic accident. This exception is based on the fact that people who participate in road traffic in the same way should also be liable in the same way. However, the state has privileged liability if the public official makes use of special powers in road traffic, such as those under Section 35 of the Road Traffic Act . In this case, the sovereign acts differently than the other road users in road traffic, so that he can also be treated differently in terms of liability law.

Furthermore, official liability is not subsidiary if the claimant's alternative means of compensation should not reasonably relieve the state of its liability. This applies, for example, to the entitlement to continued remuneration , which pursues socio-political purposes. The same applies to claims to which the injured party is entitled against their insurance .

Finally, the principle of subsidiarity does not apply if the injured party has an alternative claim against a sovereign. This is based on the fact that the public sector represents a uniform addressee of liability due to the transfer of liability under Article 34 of the Basic Law.

Judge's privilege, § 839 Abs. 2 BGB

If the official liability claim is linked to the fact that a judge has made a mistake in the context of a decision in a legal matter, the state is only liable in accordance with Section 839 (2) sentence 1 BGB if the judge's actions result in a criminal offense . In particular, perversion of justice ( Section 339 StGB), acceptance of benefits ( Section 331 (2) StGB) and corruption ( Section 332 (2) StGB) are possible offenses .

However, the term and understanding of the provision have changed over the course of time: Initially, the general rule was judge privilege, then this changed to judge privilege and finally to judge privilege. The legal norm aims to protect the legal force of judicial decisions. Since a court decision serves to finally settle a situation, its review should be limited to exceptional cases as part of a state liability process. The privilege of judges is sometimes viewed very critically in the legal literature.

In the liability process, the claimant has to prove that his official liability claim is not excluded due to the judge's privilege. He must therefore prove that a judge has fulfilled the objective and subjective elements of a criminal norm.

Primary legal protection takes precedence, Section 839 (3) BGB

An official liability claim is further excluded according to § 839 Abs. 3 BGB if the injured party intentionally or negligently failed to avert the damage by using a legal remedy by means of primary legal protection . This reason for exclusion is intended to reduce the liability risk of civil servants. Therefore, the justification of this provision has been disputed since the liability was transferred to the state, as was that of the subsidiarity clause.

Procedural matters

A claim from official liability expires within the regular limitation period, which is three years according to § 195 BGB. In accordance with Section 199 (1) of the German Civil Code (BGB), the statute of limitations begins at the end of the year in which the claim arose and the injured party learns or negligently fails to recognize that the requirements for the official liability claim are met. There is gross negligence if the claimant does not take into account generally accessible information, does not ask obvious questions or does not give obvious considerations.

The opening of the ordinary legal process is already anchored in the Basic Law in Art. 34 S. 3. According to Section 71, Paragraph 2, No. 2 of the Courts Constitution Act (GVG), the regional courts are exclusively responsible in the first instance - regardless of the value of the subject-matter of the dispute - for claims against judges and civil servants for exceeding their official powers or for failing to perform official acts in breach of duty.

In principle, the civil court independently examines the legality of the civil servant's actions. However, if an administrative court decision has already been made in this regard, the civil court is bound by its content, insofar as it becomes legally binding in accordance with Section 121 VwGO .

Competitions

The general public liability claim stands in free competition next to claims from strict liability . The same applies to claims for compensation. It is subsidiary to other claims that regulate liability for damages for breaches of official duties. Such more specific standards are, for example, Section 19 of the Federal Notary Code , which regulates liability for breaches of official duties by notaries . Also more specific than § 839 BGB is § 839a BGB, which contains provisions on the liability of judicial experts .

Recourse against the public official

According to Art. 34 sentence 2 GG, regulations can be created by which the public official may be taken into recourse in the event of willful or grossly negligent behavior , as far as the employing body pays for the damage to the third party. Statutory recourse claims arise against persons with civil servant status from the civil service laws ( Section 48 of the Civil Service Status Act , Section 75 of the Federal Civil Service Act ) and for employees from their employment and collective bargaining agreement . In the case of judges, the provisions of civil service law in accordance with § 46 , § 71 of the German Judges Act are applied accordingly. There is a right of recourse against soldiers under Section 24 (1) of the Soldiers Act . Private individuals who work for the state on the basis of a debt relationship can be claimed from their contractual relationship. In North Rhine-Westphalia , according to Section 43 (4) of the municipal code, recourse can be taken against members of the municipal council if the municipality and the council members suffer damage as a result of a council resolution

  • have acted in willful or grossly negligent breach of their duty,
  • participated in the decision-making process, although they were excluded from this by law and were aware of the reason for exclusion,
  • have agreed to the approval of expenses and payments for which the law or the budget statutes do not provide for authorization if the necessary cover funds are not provided at the same time.

literature

  • Manfred Baldus, Bernd Grzeszick, Sigrid Wienhues: State liability law: the right to public compensation . 4th edition. CF Müller, Heidelberg 2013, ISBN 978-3-8114-9151-9 .
  • Steffen Detterbeck, Kay Windthorst, Hans-Dieter Sproll (eds.): State liability law . CH Beck, Munich 2000, ISBN 3-406-45837-8 .
  • Bernd Hartmann: Public Liability Law: Economization - Europeanization - Dogmatization . Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-152525-4 .
  • Peter Itzel, Karin Schwall, Christoph Stein: Practical handbook of official and state liability law . 2nd Edition. Springer, Berlin 2012, ISBN 978-3-642-13001-4 .
  • Fritz Ossenbühl, Matthias Cornils: State liability law . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 .
  • Bernd Rohlfing: Official Liability . Universitätsverlag Göttingen, Göttingen 2015, ISBN 978-3-86395-218-1 ( [1] [PDF]).
  • Bernd Tremml, Michael Karger, Michael Luber: The official liability process: official liability, notary liability, European law . 4th edition. Vahlen, Munich 2013, ISBN 3-8006-3116-4 .

Individual evidence

  1. ^ Heiko Sauer: State liability law . In: Juristische Schulung 2012, p. 695 (696). Joachim Lege: System of German State Liability Law . In: Juristische Arbeitsblätter 2016, p. 81 (82).
  2. ^ Andreas Vosskuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The official liability claim . In: Legal Training 2015, p. 1076.
  3. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 11 .
  4. ↑ Heinz Bonk, Steffen Detterbeck: Art. 34 , Rn. 9-12. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  5. ↑ BGHZ 99, 326 (330).
  6. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 113 .
  7. ↑ Hartmut Maurer : General administrative law . 18th edition. CH Beck, Munich 2011, ISBN 978-3-406-61452-1 , § 26, Rn. 13-14.
  8. ↑ BGHZ 122, 85 (87).
  9. ↑ Christof Muthers: § 839 , Rn. 65. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  10. ↑ OLG Cologne, judgment of January 19, 1968, 2 U 11/67 = Neue Juristische Wochenschrift 1968, p. 655.
  11. ↑ BGHZ 121, 161 (164–166).
  12. ↑ Wolfgang Schlick: The case law of the BGH on the public-law compensation services - official liability . In: Neue Juristische Wochenschrift 2011, S. 3341. Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 16 .
  13. ↑ Christof Muthers: § 839 , Rn. 59. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  14. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 37 Rn. 7th
  15. ↑ BGH, judgment of 16.03.2000, III ZR 179/99 = Neue Juristische Wochenschrift 2000, p. 2810.
  16. ↑ RGZ 161, 145 (152).
  17. ↑ Hubertus Kramarz: § 839 , Rn. 27. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  18. ^ BGH, judgment of March 20, 1967, III ZR 29/65 = Neue Juristische Wochenschrift 1967, p. 1325.
  19. ↑ Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 195. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  20. ^ BGH, judgment of April 10, 1986, III ZR 209/84 = Neue Zeitschrift für Verwaltungsrecht 1987, p. 168.
  21. ↑ Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 198. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  22. ^ BGH, judgment of January 11, 2007, III ZR 302/05 = Neue Juristische Wochenschrift 2007, p. 830.
  23. ↑ Heinz Wöstmann: § 839 , Rn. 130. In: Johannes Hager (Hrsg.): J. von Staudinger's comment on the German Civil Code: §§ 839–839a (Unauthorized acts 4 - official liability law) . De Gruyter, Berlin 2013, ISBN 978-3-8059-0784-2 .
  24. ↑ BGHZ 117, 83 .
  25. ↑ BGHZ 45, 23 (29).
  26. ^ BGH, judgment of July 7, 1988, III ZR 198/87 = Neue Juristische Wochenschrift 1989, p. 101. Fritz Ossenbühl: Public law in the case law of the BGH . In: Neue Juristische Wochenschrift 2000, p. 2945.
  27. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 107 .
  28. ↑ Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 285-291. In: Mathias Habersack, Hans-Jürgen Papier , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  29. ↑ BGHZ 198, 1 .
  30. ↑ Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 289. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  31. ↑ Rene Hoppe: The necessity of exhausting legal remedies as a prerequisite for official liability . In: Legal worksheets 2011, p. 167 (172). Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 290. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  32. ↑ OLG Koblenz, judgment of July 17, 2002, 1 U 1588/01 = New Journal for Administrative Law Jurisprudence Report 2003, p. 168.BGHZ 170, 260 .
  33. ↑ BGHZ 170, 260 .
  34. ↑ Christian Förster: Damage law - systematics and latest case law . In: Juristische Arbeitsblätter 2015, p. 801.
  35. ↑ Hubertus Kramarz: § 839 , Rn. 57. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  36. ^ BGH, judgment of February 25, 1993, III ZR 9/92 = Neue Juristische Wochenschrift 1993, p. 1799.
  37. ↑ Hubertus Kramarz: § 839 , Rn. 55. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 . Fritz Ossenbühl, Matthias Cornils: State liability law . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 12-13 .
  38. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 74 .
  39. ↑ Christof Muthers: § 839 , Rn. 308. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 . Heinz Wöstmann: § 839 , Rn. 301. In: Johannes Hager (Hrsg.): J. von Staudinger's comment on the German Civil Code: §§ 839–839a (Unauthorized acts 4 - official liability law) . De Gruyter, Berlin 2013, ISBN 978-3-8059-0784-2 .
  40. ↑ Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 306. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  41. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 81 .
  42. ↑ Bernd Hartmann: Public Liability Law: Economization - Europeanization - Dogmatization . Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-152525-4 , pp. 159 .
  43. ↑ Hans-Jürgen Papier, Foroud Shirvani: § 839 , Rn. 300-301. In: Mathias Habersack, Hans-Jürgen Papier , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Foroud Shirvani, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 7th edition. tape 6 : Law of Obligations, Special Part IV, Sections 705–853, Partnership Act, Product Liability Act . CH Beck, Munich 2017, ISBN 978-3-406-66545-5 .
  44. ↑ BGHZ 113, 164 .
  45. ^ BGH, judgment of March 26, 1997, III ZR 295/96 = Neue Juristische Wochenschrift 1997, p. 2109.
  46. ↑ BGHZ 62, 380 on the earlier entitlement to continued payment of wages.
  47. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 83 .
  48. ↑ BGHZ 91, 48 (54).
  49. ↑ Wolfgang Schlick: The case law of the BGH on official liability . In: Neue Juristische Wochenschrift 2013, p. 3349.
  50. ↑ 18 years of litigation and the privilege of judges. In: right lens. December 6, 2010, accessed April 18, 2018 .
  51. ↑ Hartwig Sprau: § 839 , Rn. 63-67. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  52. ↑ Christian Kirchberg: Legal Liability, Judge Liability, What Makes the Difference? In: BRAK-Mitteilungen 2018, pp. 59–63.
  53. ^ Marten Breuer: State liability for judicial injustice . Mohr Siebeck, Tübingen 2011, ISBN 978-3-16-150535-5 , p. 169-170 .
  54. ↑ Christof Muthers: § 839 , Rn. 222. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  55. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 102 .
  56. ^ Friedrich-Christian Schroeder: A questionable judge privilege. In: Frankfurter Allgemeine Zeitung. February 3, 1995, accessed April 21, 2018 .
  57. ↑ Christof Muthers: § 839 , Rn. 312. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  58. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 93-96 .
  59. ↑ Klaus Röhl: To differentiate between gross and simple negligence . In: JuristenZeitung 1974, p. 521.
  60. ↑ BGHZ 9, 329 . BGHZ 175, 221 .
  61. ↑ BGHZ 29, 38 (44). BGHZ 121, 161 (168).
  62. ↑ BGHZ 13, 88 (92).
  63. ↑ Heinz Bonk, Steffen Detterbeck: Art. 34 , Rn. 108. In: Michael Sachs (Ed.): Basic Law: Commentary . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  64. ^ Regarding recourse against judge Markus Scheffer: Recourse against judge for breach of official duty . In: New Journal for Administrative Law 2010, p. 425.
  65. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 119 .