business room

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Business space is a structurally closed space that is deliberately intended by the owner for a certain period of time or permanently, mainly for commercial , scientific , artistic or similar purposes and is actually used for this purpose. The opposite is the living space .

General

In connection with the criminal offense of trespassing and theft (§ § 123 Abs. 1, § 124 , § 243 Abs. 1 Nr. 1 StGB ) the law uses the terms apartment , business premises or pacified property without explaining them, so that the jurisprudence and literature had to deal with the concept of business premises. The Reichsgericht (RG) had to rule on this as early as 1886 in the case of a mobile supermarket , which it regarded as business premises. The criminal law does not necessarily restrict the purposes to gainful employment , while the civil law perspective only regards such rooms as business premises that are used for business, in particular commercial or professional business purposes. In Section 2, Paragraph 1 of the Business Premises Rent Act of June 1952, there was a legal definition , according to which it is a question of rooms "which, according to their physical structure and equipment, are intended to serve non-residential purposes in the long term, in particular commercial or professional purposes, and serve such purposes ". Business premises are not part of the living space according to Section 2, Paragraph 3, No. 3 of the Living Space Ordinance . It is only a business space if it is spatially and functionally separated from living space and it is no longer to be regarded as a spatial unit. The intended purpose as a business space therefore often results from the structure and its equipment with operating and office equipment . Business premises are used to process business operations and to store and use objects and documents that are necessary for operations.

species

Business premises include restaurants , inns , factories , workshops , companies , petrol stations , law firms or medical practices . Also moving things such as mobile dispensing carts, mobile offices , mobile supermarkets, circus tents or advertising stocks may be business premises. In contrast, in 1899 the Reichsgericht did not consider trams to be business premises. In this sense, it is doubtful whether letterbox companies and letterbox banks can be referred to as business premises because they lack the equipment and the actual use.

The operational use of these business premises incurs space costs . This includes, in particular, depreciation (in the case of property ), business premises rent (in the case of rented rooms), costs for cleaning or maintenance .

meaning

The concept of business premises is crucial for many areas of law . The Federal Constitutional Court considers the vulnerability of premises less a "real" than the flats and therefore facilities and office space only partially within the scope of the inviolability of the home of the Art. 13 para. 1 GG involved. Flats that have been withdrawn from uncontrolled public access (medical practices, office floors) and business premises that are comprehensively accessible to the public ( shopping malls , department stores ) are withdrawn from the protected area during their accessibility. Apartments may not be used as business premises (“misappropriation of living space”), especially in the case of apartment ownership ; only partial ownership may be used for business premises.

A written form is not required for business space leases, the termination of business space leases is not subject to protection against dismissal . For business premises within the meaning of Section 580a, Paragraph 2 of the German Civil Code , a simple notice period of 6 months applies. In the context of consumer protection , the consumer has a 14-day right of withdrawal in accordance with Section 355 of the German Civil Code for contracts concluded outside of business premises and for distance sales contracts according to § 312g BGB . To this end, Section 312b (2) BGB defines business premises as " immovable commercial premises in which the entrepreneur carries out his activity on a permanent basis, and movable industrial premises in which the entrepreneur usually carries out his activity". All other contracts with a consumer are deemed to be concluded outside the business premises according to Section 312b (1) BGB, especially if the consumer is not physically present in the business premises at the same time or concludes contracts during an excursion ( coffee trip ).

According to Section 62 HGB , the employer must set up and continuously maintain the business premises in such a way that the health of his employees is guaranteed. The concept of business premises is understood widely and includes all the business operations serving Land , buildings and parts of buildings, including the additions. After § 200 para. 2 AO may tax authorities an audit at the premises of the taxpayer accept as permissible. Because the BVerfG makes the entry of business premises by third parties dependent both on a legal authorization (such as Section 200 (2) AO in conjunction with Section 413 AO) and on a permitted purpose. When enforcement offices for entering and searching a specific role. According to § 21 InsO , the bankruptcy court can order the search of business premises and the confiscation of the debtor's business documents . The provisional insolvency administrator may enter the debtor's business premises and investigate there in accordance with Section 22 (1) InsO. Official deliveries can be made in the apartment, in business premises or in communal facilities ( Section 178 (1) ZPO ) or in a mailbox belonging to the apartment or business premises ( Section 180 ZPO). A judicial order is required to search business premises ( Section 102 ff. StPO).

International

Article 8 of the European Convention on Human Rights (ECHR) protects the right to housing. In September 1989 the European Court of Justice ruled that the Community fundamental right to the inviolability of the home was to be recognized for the private home of natural persons, but not for the business premises of companies, since the legal systems of the EU member states with regard to the type and extent of the protection of business premises against official ones Interventions showed not inconsiderable differences. The ECJ only required that the search of business premises must have a legal basis and not be arbitrary or disproportionate. In April 2002, the European Court of Human Rights then had to deal with the question of whether the business premises of a company were also subject to this protection under Article 8 (1) ECHR. In contrast to the ECJ, it ruled that under certain circumstances the business premises of companies can also claim this protection.

Individual evidence

  1. ↑ RGSt 13, 312, 315
  2. ^ Otto Palandt / Walter Weidenkaff, Commentary BGB , 73rd edition, 2014, before § 535 marginal no. 92
  3. ^ Heinrich Wilhelm Laufhütte / Ruth Rissing-van Saan / Klaus Tierdermann (eds.), Criminal Code Leipzig Commentary , 2009, Hans Lilie: § 123 StGB, p. 164
  4. ↑ RGSt 32, 371
  5. ↑ Wilfried Küper, Criminal Law, special part: Definitions with explanations , 2008, p. 167 f.
  6. ↑ BVerfGE 32, 54, 68
  7. ↑ Heinz Mösbauer, tax audit (audit) - Tax Fraud - Tax Inspectorate , 2005, p 157 f.
  8. ↑ BVerfGE 32, 69 ff.
  9. ↑ ECJ, Case C-46/87 and 227/88, 1989, 2859
  10. ↑ ECJ, Case C-46/87 and 227/88, 1989, 2859
  11. ↑ ECHR, judgment of April 16, 2002, No. 37971/97, RJD 2002-III