Fundamental rights
Under basic legal capacity is the capacity, carriers of fundamental rights to be. In this respect, the fundamental legal capacity is a special case of legal capacity .
All natural persons have unlimited fundamental rights . According to Article 19 (3) of the Basic Law, domestic legal persons are also capable of fundamental rights insofar as the fundamental rights, by their nature, are not only applicable to natural persons. These are above all personal rights . But legal entities can affect the general freedom of action called the economic freedoms , the freedom of communication or the principle of equality . In principle, this also applies to foreign legal entities domiciled in the European Union, but not to domestic legal entities under public law.
The legal subject who is capable of fundamental rights, or specifically the legal subject who is the bearer of a certain fundamental right, is referred to as the fundamental right holder .
In so far as it is a question of the sponsorship of a certain fundamental right, i.e. its personal area of protection , the designation as a fundamental right entitlement or fundamental rights holder is common. The ability to exercise fundamental rights oneself is called fundamental rights maturity.
The dead are not entitled to basic rights: due to a lack of legal capacity, they cannot be bearers of subjective rights . However, this does not rule out that objective legal protection obligations intervene in their favor. The Federal Constitutional Court decided that the dead are no longer bearers of a personality right , but the state's obligation to protect human dignity does not end with death (BVerfGE 30, 173, 174 - "Mephisto"). There are therefore - with increasing distance from the time of death weaker protection obligations, but not corresponding rights .
Whether the unborn person (" nasciturus ") can be the bearer of basic rights is, however, controversial. The Federal Constitutional Court only ruled that the objective content of the fundamental rights as the state's duty to protect can also protect unborn life. However, the extent to which this obligation corresponds to a subjective right of the growing person has been left open and is therefore not assessed uniformly in the literature (compare: right to life ).
The state is not capable of fundamental rights in the broadest sense, i.e. legislation, jurisdiction and administration (Article 1, Paragraph 3 of the Basic Law), regardless of whether it is a hierarchical administration or a legally independent one (municipalities, districts, chambers). The state is precisely the addressee of the fundamental rights, that is, it is bound by fundamental rights: it has to respect the protected freedoms of citizens entitled to fundamental rights. If he, too, could invoke fundamental rights, they would not give the citizen any freedom, but would open up new possibilities for the state to intervene.
The same applies to public officials in the exercise of sovereign duties. In his capacity as a representative of the special organs of legislation, the executive and the judiciary within the meaning of Article 20.3 of the Basic Law and as a person obliged to fundamental rights according to Article 1.3 of the Basic Law, he cannot invoke his own fundamental rights vis-à-vis other holders of basic rights because, like the state itself, it is bound to the fundamental rights of the fundamental right holder as a directly applicable right and cannot use them as a defense against other fundamental rights holders. The fundamental rights of public officials apply without exception to the state itself.
Individual evidence
- ↑ In constitutional complaints from legal entities under private law, statements on the fundamental legal capacity may be required, press release of the Federal Constitutional Court No. 93/2015 of December 15, 2015
- ↑ On the protection of fundamental rights for legal persons from the European Union and on the right of distribution under the Copyright Act ( counterfeit designer furniture), press release of the Federal Constitutional Court No. 56/2011 dated September 9, 2011
- ↑ Kay Windthorst : BVerfG - Protection of fundamental rights of legal entities from the EU - Distribution right of the author University of Bayreuth, accessed on January 18, 2018
- ↑ BVerfG, decision of April 14, 1987 - 1 BvR 775/84 para. 13
- ↑ Michael Sachs : Those entitled to basic rights. In: Constitutional Law II - Fundamental Rights . Springer textbook. Berlin, Heidelberg 2017
