Self-sacrifice
The right to sacrifice is a compensation claim based on the legal concept of §§ 74, 75 of the introduction to the Prussian General Land Law (EALR or Einl. PrALR) of 1794 .
Present
A sacrifice exists if:
- through a (lawful or illegal, targeted or untargeted) sovereign intervention
- non-financial rights (life, health, physical integrity and freedom in the sense of physical freedom of movement - encroachments on property are regulated by Art. 14 (3) GG ) are directly impaired ,
- this one for the affected citizens special sacrifice in the form of financial loss is
- and the intervention is motivated by the common good .
- In some cases, in a comparative application to Section 839 BGB, it is required that no legal remedies were culpably neglected.
Since a sovereign intervention has to have an "immediate negative effect", the question arises as to which guiding criteria are decisive. The affected person must be exposed to considerable weight, which affects him unequally as compared to the non-affected person. The resulting stressful consequences are in turn not covered by the purpose of the norm on which the administrative action is based, but must exceed the specification of the general life risk or general obligations.
Since the right to sacrifice is only subsidiary , its importance is steadily declining due to the increasing density of special legal regulations, for example in social compensation law or the police laws of the federal states. A special regulation always suppresses the claim for sacrifice. However, there is competition with the general public liability claim ( § 839 BGB in conjunction with Art. 34 GG).
The right to sacrifice is to be asserted in the ordinary courts (so BGH , judgment of February 19, 1953; III ZR 208/51). In the meantime, a specific legal assignment to the ordinary courts has been given in Section 40 (2) sentence 1 VwGO .
The legal consequence is monetary compensation (monetary substitute). For the rest, the same damage law requirements as in civil law are to be checked, in particular contributory negligence within the meaning of § 254 BGB. The constant jurisprudence, according to which a claim to compensation for pain and suffering is excluded, unless a special satisfaction or compensation function is added because of the special case, the BGH has given up. In this respect, III, who is responsible for the law of compensation under public law, has to Civil Senate of the Federal Court of Justice decided on September 7, 2017 that the claim to compensation for sovereign interference due to lawful official acts in the legal interests of life, physical integrity or freedom also includes a claim for pain and suffering (III ZR 71/17).
According to the prevailing opinion, especially after the reform of the law of obligations on January 1, 2002 , the limitation period is three years. A limitation period assumes thirty years as the limitation period.
Differentiations
Analogous to expropriation and expropriation , the claim to self-sacrifice is subdivided in literature into self-sacrificing claim and self-sacrificing claim. The self-sacrificing claim is characterized by the illegality of the interference, in the self-sacrificing claim the interference is lawful. This differentiation makes sense when the special sacrifice has to be determined. If the intervention is unlawful, the special sacrifice itself is indicated. In the case of a self-sacrificing claim - with lawful interference - the special sacrifice must therefore be determined separately.
Special offerings
The special sacrifice is always indicated in unlawful sovereign action. If, on the other hand, the action is lawful, the victim limit must be exceeded in such a way that the person concerned is burdened unequally compared to others. The right to sacrifice never presupposes fault .
Legal source
Partly controversial, even if the result is irrelevant, is whether the right to sacrifice is derived from the legal source of judicial law or customary law . The jurisprudence initially invoked customary law (according to the Reichsgericht and the BGH in early decisions). Since Sections 74, 75 EALR initially only applied to Eastern Elbe and were de facto repealed with the cabinet order of December 1831, it cannot be a matter of customary law due to the lack of persuasive effect. In the meantime, the Federal Court of Justice therefore takes the position that it is judge law. See also here to distinguish.
Literature on the self-sacrifice
- Manfred Baldus , Bernd Grzeszick ; Sigrid Wienhues: State liability law - the right of public compensation. Müller-Verlag, Heidelberg, 2005. ISBN 3-8114-1836-X .
- Alexander Benkendorff: Compensation for pain and suffering outside of the law on damages: an investigation into the applicability of Section 253 (2) BGB in the context of management without a mandate and in the case of the civil law claim to sacrifice according to Section 906 (2) sentence 2 BGB , University of Tübingen, dissertation 2009, Lang Frankfurt am Main [u. a.] 2009, ISBN 978-3-631-59058-4 .
- Klaus Ferschl: The public-law claim to self-sacrifice: its development and development opportunities , University of Passau, dissertation 1992, Shaker Aachen 1995, ISBN 3-8265-5067-6 .
- Johannes Hogenschurz: The development of the principle of sacrificial liability in civil law emergencies: using the example of the liability for damages in § 904 S. 2 BGB , University of Bonn, dissertation 1997, dissertation, number 318016091 (OCLC).
- Fritz Ossenbühl : State liability law . Beck-Verlag, 5th edition, Munich 1998. ISBN 3-406-41809-0 .
- Herbert Roth, Reiner Lemke , Günter Krohn: The civil-legal claim to self-sacrifice: a problem of system justice in the law of damages; [Expert discussion between the Law Faculty of the University of Heidelberg and the Juristic Study Society Karlsruhe; Faculty meeting on May 24, 2000] , lecture by Herbert Roth with contributions to the discussion by Reiner Lemke and Günter Krohn, Müller, Heidelberg 2001, ISBN 3-8114-2304-5 .
- Bernd Tremml, Michael Karger : The official liability process - official liability, notary liability, European law. Vahlen-Verlag, 2nd edition, Munich 2004. ISBN 3-800-63116-4 .
