Common use

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The public use is an old, the Roman law entstamme Direction legal concept ( Latin usus publicus ), which today mainly in the road right of the German legal system is used. Common use is the right of a large number of people to use things that are used by the public - in contrast to property and possession rights , which regulate the use of things only by certain individual persons.

In contrast to property, it is not an individual right , but a collective right . The main consequence of this is that the person entitled to public use cannot exclude anyone else who is also entitled to public use (- in contrast to the owner, who can in principle exclude anyone else from using his property ).

Common use can - depending on the form of government and the state of the state organization - take place in self-organization or - as is usually the case - be regulated and monitored by the laws and the police of the state.

Common use can also exist for things that are privately owned. A communal public facility (e.g. multi-purpose hall) can be privately owned, but at the same time be dedicated to public use. Furthermore, the public road does not have to be publicly owned; roads or paths that are in private hands can also become public roads through dedication.

If an item, which can also be in private ownership, is in public use, then anyone may use it without special authorization in accordance with its intended purpose resulting from law or dedication, taking into account the principle of general compatibility. The owner's right of domination, which flows from the remaining property, is withdrawn in this respect (Bassenge in Palandt , BGB, § 903 Rn. 28).

In the Middle Ages , the common land was also used in Germany . The extent to which the extent of public use changes as a result of changed traffic habits is controversial. Possibly a stronger emphasis on individual rights can lead to a reduction in common use (see also: ager publicus ).

Public law in the Federal Republic of Germany, for example, allows everyone to move freely within the framework of the applicable laws ( general freedom of action , Article 2, Paragraph 1 of the Basic Law ). The common use of water is explicitly regulated in the German Water Resources Act and the associated state water laws .

The opposite term to common use is special use . Special use is an individual right to a thing that actually serves a plurality or multiplicity of people. In modern German law, it also plays a role in residential property law (special use of communal areas).

Just as the meaning of common use has become uncertain today, so is special use. The road laws still know the special use as a separate fact. It should be correct, however, that special use today is identical to use that exceeds the legal limits of common use. The special use can be approved in individual cases or unapproved and thus illegal. If the illegal use (e.g. the street for a dance event) has been approved by the police, there is no more space for a further special usage permit provided for by the German street laws .

See also

literature

  • Holger Stuchlik: Special uses under road law. GewArch 2004, p. 143 ff.
  • Paper, Hans-Jürgen: Law of public things. 3rd edition, 1998.
  • Matthias Knapp: Common use and state property. Peniope, Munich 2003, also Diss. Freiburg / Brsg. 2002.
  • Wüstenberg, Dirk, common use of private roads , in: Neue Zeitschrift für Verkehrsrecht (NZV) 2019, pp. 511–516.