Duty of care
The duty of care is the mostly legal duty of natural or legal persons to look after the well-being of other people .
The composition is made up of voluntary care and the legally enforced legal obligation for this. Specifically, the duty of care is particularly true in the labor law , the employer in relation to their workers , the Civil Service Law , the masters in relation to the officials , the military law , the superiors against the soldiers , the parental rights the parents in relation to their children and in education law , the teachers towards their students . In order for this care to become a legal obligation , it is expressly regulated in law. A violation of the duty of care therefore leads to legal consequences .
The duty of care is regulated in various areas of law for the respective norm addressees .
In Germany, the duty of care results from §§ 617 to 619 BGB as a secondary duty from the employment relationship , which is supplemented by other laws (e.g. duty of care of the employer for the sales assistant , § 62 HGB ). According to this, the employer is required to create working conditions that protect every employee from dangers to life, limb and health. There are a number of statutory protection regulations, such as the Workplace Ordinance, the Occupational Safety and Health Act , the Occupational Safety Act , the Working Hours Act , the Working Hours Ordinance , the Youth Labor Protection Act or the Maternity Protection Act . The employer is obliged to take the necessary measures to protect against discrimination due to a reason specified in Section 1 AGG (discrimination based on race or ethnic origin , gender , religion or belief , disability , age or sexual identity ) to be met ( Section 12 (1) AGG). In the context of the employment relationship, he must also take care of the protection of other legal interests of the employee (such as honor , property , equal treatment ).
There is an indispensable duty of care of the employer for sick domestic staff from § 617 BGB. The duty of care also extends to compliance with public law provisions, particularly for the proper payment of social security contributions . The employer must set up and maintain rooms or work equipment that he has available for performing the services in such a way that the employee is protected against danger to life and health ( Section 618, Paragraph 1 BGB)
Civil service law
In civil service law, the employer is required to take care of the civil servant and his family within the framework of the service and loyalty relationship ( Section 78 BBG ). This also applies in accordance with Section 45 of the BeamtStG for the period after the civil servant relationship has ended. It protects civil servants in their official activities and in their position. For state civil servants there are regulations in the state civil servant laws . The counterpart of the duty of care is the civil servant's duty of loyalty .
In favor of soldiers, there is a duty of care under Section 31 SG . According to this, the federal government has to ensure the welfare of the professional soldier and the temporary soldier as well as their families within the framework of the service and loyalty relationship , also for the time after the service relationship has ended. To care after the one aid .
The parental duty of care (applies to all legal guardians ) relates to an adequate provision, the failure of which leads to harm to the children. Parents' duties of care towards their own children cover “a fundamental, generally valid and objective area of human needs”. This duty of care can be seen as a responsibility assigned to parents based on their specific role. In addition to the mutual responsibility of the spouses to one another ( Section 1353 (1) BGB), there is a duty of care in the parent-child relationship . This includes in particular the parental duty of care according to § 1626 BGB, which is made up of personal care and asset care (§ 1626 Paragraph 1 BGB). When exercising, the child's best interests are in the foreground ( § 1627 BGB). In addition, parents and children owe each other support and consideration in accordance with § 1618a BGB. The maintenance obligations (e.g. from § 1360 BGB) are also part of family solidarity.
The teacher's duty of care describes the duty to take care of the well-being of pupils and school-age children. The duty of care and care are official duties of teachers ( Art. 34 sentence 1 GG ). The primary responsibility of teachers is to protect schoolchildren from damage to their health and property as well as from violation of other property that is protected by fundamental rights. The official duty also states that every teacher must refrain from any interference with personal rights when exercising their office . That includes the civil law in § 823 Abs. 1 BGB, which u. a. includes the general personal rights of children.
The duty of care of the teachers towards their pupils results from the school laws of the federal states, for example according to § 42 Paragraph 6 of the North Rhine-Westphalian School Act (“the care of the pupils”). It also arises from the school's general duty of supervision , which is based on the greater need for protection of the pupils (Section 57 (1) of the NRW School Act).
The guardian ( Section 1793 Paragraph 1 Sentence 1 BGB), carer ( Section 1896 Paragraph 2 BGB, Section 1901 BGB) or carer ( Section 1915 Paragraph 1 BGB) also have a duty of care . Such obligations can also arise in the public-law area of responsibility (e.g. youth workers ; liability of the person responsible for supervision according to § 832 BGB) or other private areas of life ( e.g. illegitimate cohabitation , blended family ). The educational assistance according to § 27 SGB VIII can trigger caring responsibilities. Officials of the Criminal and Maßregelvollzugs makes a duty of care to prisoners , for their physical and mental health must be ensured ( § 56 para. 1 of the Prison Act ).
If the duty of care is culpably violated, there is a risk of damages , fines or imprisonment , depending on the severity of the violation . Violated the employer's duty of care, the employee may on fulfillment made or the obligation to work deny (the wage claim is in accordance with § 615 BGB exist) or eingetretenem damage (claim damages § 280 1 para. BGB). This arises from the law of the unlawful act (§ § 842 ff. BGB). If the employer culpably violates the duty of care incumbent on him, the civil servant is entitled to a fault-based claim for damages in addition to the claim for breach of official duty . Anyone who grossly violates their duty of care or upbringing towards a person under the age of sixteen and thereby puts the person under protection in danger of being significantly damaged in their physical or psychological development, leading a criminal life or pursuing prostitution, is sentenced to three imprisonment Years or a fine ( § 171 StGB ). Supervision requiring persons liable under § 832 BGB because of vicarious liability for minors , companies (employers) liable under § 130 para. 1 OWiG under the vicarious liability if they intentionally or negligently omitted the supervisory measures required to prevent infringements of duties within the Company .
The employer's duty of care (“employer”) for the life and health of the employee results in Austria from § 1157 ABGB . According to this, the employer must regulate the services and, with regard to the rooms and equipment provided by him, ensure at his own expense that the life and health of the employee are protected, as far as the nature of the service allows. In Switzerland , the employer's duty of care is the counterpart to the employee's duty of loyalty ( Art. 321a OR ). It obliges them to provide protection and care for the employees and to refrain from anything that could conflict with their legitimate interests. The focus is on the general protection of the employee's personality ( Art. 328 OR), data protection ( Art. 328b OR), equality between men and women (Equal Opportunities Act), asset protection and the issuing of a job reference ( Art. 330a OR).
- ↑ Corinna Mieth, Positive Duties: About the Relationship between Help and Justice in relation to the World Poverty Problem , 2012, p. 15 ff.
- ↑ Annekatrin Meißner, Cooperative Educational Responsibility as a Way out of Poverty , 2017, p. 158
- ↑ OLG Zweibrücken , decision of June 5, 1997, Az .: 6 U 1/97
- ↑ OLG Zweibrücken, judgment of December 11, 1996, Az .: 3 W 152/96
- ^ Edward Schramm, Marriage and Family in Criminal Law , 2011, p. 357
- ↑ Carl Hermann Ule, Beamtenrecht , 1970, p. 201