Legitimate interest

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The legitimate interest is in the law , a vague legal concept under which in several jurisdictions , the individual right of a legal entity is understood one by the situation justified and sensible interest in the concession of a right of action put forward.

Tenancy law

According to Section 553, Paragraph 1, Sentence 1 of the German Civil Code ( BGB) , the tenant can request permission from the landlord to let a third party use part of the living space if he has a legitimate interest in doing so after the lease has been concluded . An interest on the part of the tenant within the meaning of Section 553, Paragraph 1, Clause 1 of the German Civil Code (BGB) is to be assumed if he has reasonable grounds that make his request for part of the apartment available to third parties seem understandable. Any interest of the tenant of not inconsiderable weight that is in accordance with the applicable legal system is to be regarded as justified .

According to Section 573 (1) BGB, the landlord can only terminate the tenant if he has a legitimate interest in ending the tenancy. This legitimate interest of the landlord is specified in Section 573 (2) BGB, according to which the tenant in particular must have culpably not insignificantly breached his contractual obligations , the landlord needs the rooms as an apartment for himself, his family members or members of his household ( personal use ) or the The landlord would be prevented by the continuation of the lease from an appropriate economic exploitation of the property and would suffer considerable disadvantages as a result.

Administrative law

According to Section 43 (1) VwGO and Section 113 (1) sentence 4 VwGO, proof of a legitimate interest is required for the admissibility of a general administrative-law declaratory action as well as a continuation of the declaratory action . Any legitimate, economic or non-material interest that is worthy of protection is to be regarded as a legitimate interest, which is to be recognized on the basis of reasonable considerations, taking into account legal regulations or general legal principles. If the plaintiff has a legitimate interest in the early establishment of the existence or non-existence of a legal relationship or the nullity of an administrative act , he can bring an action for declaratory judgment. The case law recognizes such an interest in the case of continuation declaratory actions in the event of a risk of repetition, interest in prejudice, interest in rehabilitation and profound encroachment on fundamental rights.

Land register law

In general, unrestricted inspection by interested parties of the existing entries and deletions is permitted in public registers such as trade , association , cooperative , partnership and property law registers . When land registry but is Land Registry insight because of the visible to everyone asset ( land ) and debt ratios ( land charges , mortgages , mortgages ) restricted by law. Although this restriction is basically justified, it was implemented superficially by law and thus left to the discretion of the land registry . The central regulation is Section 12 (1) GBO , according to which anyone who can prove a legitimate interest is allowed to inspect the land register and the basic files ( Section 46 (1) GB decision ). The concept of legitimate interest is broader under land register law than that of legal interest and includes, for example, economic interests. Only an interest is justified that is based on the fact that legal action is intended in relation to the land register entries.

The property owner and all rights holders entered in the land register who receive a land register message from the land registry in accordance with Section 55 (1) GBO have an unrestricted legitimate interest in this sense . This also applies to authorities , courts and notaries because of the obligation to provide administrative assistance ( Art. 35 GG) and publicly appointed surveyors . An actual interest , in particular an economic interest , can also suffice in individual cases. This group of people includes the

This legitimate interest must be presented to the land registry. Presentation is the submission of facts in a way that can convince the land registry of the pursuit of legitimate interests.

About the original, the general legal transactions with real estate serving regulatory purpose, there is a view to the constitutionally guaranteed freedom of the press , including the journalistic preparation activities, including a legitimate interest of the press from gaining on the settings for a particular property records note that according to § 12 Paragraph 1 Clause 1 GBO is able to justify the legitimate interest required to allow access to the land register.

Today's electronically managed land register replaces the conventional paper land register ( § 133 GBO) and enables an automated retrieval process. It can also be viewed on the Internet ; Section 12 GBO also applies to online access. After § 12c para. 1 no. 1 GBO, the registrar decides office on allowing the access to the land register.

Criminal law

The perception of a legitimate interest is a justification of German criminal law in the area of ​​honor protection offenses. Critical judgments about scientific , artistic or commercial achievements or statements made to protect legitimate interests are only punishable as insulting if they emerge from the form of the statement or from the circumstances under which it was made ( Section 193 StGB). However, you have to stay within the framework of proportionality . In the event of an insult, a legitimate interest decides whether or not the opportunity to justify a factual assertion through Section 193 StGB is opened. A legitimate interest is criminally exercised by anyone who pursues a purpose recognized by the legal system as worthy of protection. In principle, only statements aimed at safeguarding one's own (including indirect) interests or the interests of the general public are suitable to represent a justification, as well as those that serve to protect the interests of closely related persons. An important application example for the protection of legitimate interests are insulting statements by a lawyer about the opposing party to protect the interests of one's own client.

Individual evidence

  1. ^ BGH, judgment of October 3, 1984, Az .: VIII ARZ 2/84
  2. ^ BGH, judgment of November 23, 2005, Az .: VIII ZR 4/05, NJW 2006, 1200
  3. ↑ Wolf-Rüdiger Schenke, Administrative Process Law , 14th Edition 2014, p. 191, Rn. 571
  4. ↑ Joachim Kuntze / Rudolf Ertl / Hans Herrmann / Dieter Eickmann, Land Register Law: Commentary on Land Register Regulations and Land Register Disposals , 6th edition 2006, § 12 GBO, p. 552, Rn. 3
  5. ↑ BGH, decision of August 17, 2011, Az .: V ZB 47/11
  6. ↑ Adolf Schönke / Horst Schröder / Theodor Lenckner, commentary on the StGB , 2003, § 193, margin no. 9
  7. ↑ Thomas Fischer, Commentary on the Criminal Code, 65th edition 2018, Rn. 28a to Section 193 of the Criminal Code
  8. ↑ Decision of the OLG Munich of July 11, 2016, Az. 5 OLG 13 Ss 244/16 in the case " Freisler-comparison " = Anwaltsblatt 2016, 767 = StV 2017, 183 = NJW 2016, 2759, confirmed by decision of the OLG Munich dated May 31, 2017, Az. 5 OLG 13 Ss 81/17 = Anwaltsblatt 2017, 783 = BRAK-Mitteilungen 2017, 239 = DVBl 2017, 979
  9. ↑ LTO article on the Freisler comparison