Good behavior

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Good morals are the positive moral values of custom . The term includes the sense of justice and decency of all morally and just thinkers (adults) in society and consequently corresponds to the prevailing legal and social morality .

Use of the term in law

Germany

Good morals , just like the formulation of the moral law used in the Basic Law for the Federal Republic of Germany ( Article 2, Paragraph 1), which defines part of the so-called barrier triad, is an indefinite legal term . As early as April 1901, the Reichsgericht (RG) in Leipzig defined the term good morals according to the "sense of decency of all those who think cheaply and fairly". The good morals therefore correspond to the prevailing legal and social morality. The above definition was confirmed by the Federal Court of Justice (BGH).

Of the moral obligation to morality (. As such the so-called distinguish common usage ) in that no concrete compulsory power duty ratios are derived from them. The good morals are also distinguished from the term morality . The latter merely describes a constitution of will (disposition) and is by itself not a conventional norm valid in society. Nonetheless, terms such as “indecent behavior” or “indecent behavior” can sometimes be found in the specialist literature with regard to legal transactions, when actually acting contrary to common decency is meant. This is synonymous with immorality .

Under civil law , immoral legal transactions are fundamentally null and void according to the general clause of Section 138 (1) BGB . The same applies in administrative law with Section 44 (2) No. 6 VwVfG for an immoral administrative act . In criminal law , consent to bodily harm only excludes the criminal liability of the agent if it does not violate morality ( Section 228 StGB).

The concept of morality has not been used in competition law since 2004. Before that, from 1889 offenses against good morals, insofar as they concerned actions for the purpose of obtaining trade and business secrets , were punishable by the law to combat unfair competition . Equivalent to this, the antonym of unfairness is used in fair trading law , which is concretized in the law against unfair competition (UWG) under the term of unfair action .

Austria

As in Germany, morality is a legal term. A violation of morality is illegal ( § 879 ABGB ). Contracts that violate morality are void.

In criminal law, too, morality or the violation of such play a role. Injuries to which the injured person consents are justified in accordance with Section 90 of the Criminal Code . However, violations that are immoral are not justified . The immorality (ie the violation of good morals) is seen as a "contradiction to the feelings of all right and fair thinkers".

Switzerland

The term good morals is regulated in Switzerland in Article 20 of the Code of Obligations . Contracts that violate common decency are illegal. The immorality serves to prevent the execution of contracts that contradict the ethical values ​​of large sections of the population. In order to be immoral, a contract does not have to contradict legal norms; the decisive factor is violations of fundamental norms or ethical principles of the legal system. If individual conditions of a contract are immoral , only these are void. The moral , however, takes no general protection of the contracting parties, freedom of contract also includes the freedom to enter into bad contracts.

literature

  • Peter-René Gülpen: The concept of good morals in § 228 StGB . Publishing house MDV-Duhme, Troisdorf 2009, ISBN 978-3-00-026038-4 .
  • Christian Järkel: The unlawful bodily harm due to immorality. A contribution to the interpretation and reform of § 228 StGB . Publishing house Dr. Kovac, Hamburg 2010, ISBN 978-3-8300-5281-4 .
  • Irene Eisentraut, Marco Heßdörfer, Daniela Maier, Michael Reil: The good morals through the ages . University of Applied Sciences for Public Administration and Justice, Faculty of Justice, Starnberg 2011.

Individual evidence

  1. ↑ a b Detlev Sternberg-Lieben : The objective limits of consent in criminal law. Mohr Siebeck, Tübingen 1997, ISBN 3-16-146733-7 , pp. 136-162. ( Excerpts from books.google.de, accessed on June 2, 2016)
  2. ^ RG, judgment of April 11, 1901, Az .: V1 443100 = 48, 114, 124
  3. ↑ Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, § 138 No. 2.
  4. ↑ Götz Schulze : The natural obligation. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149407-9 , p. 403. ( online . At books.google.de, accessed on June 2, 2016)
  5. ↑ Woldemar Oskar Döring : Legal knowledge in the light of the holistic philosophy of knowledge. LIT, Berlin 2007, ISBN 978-3-8258-4630-5 , p. 24. ( online . At books.google.de, accessed on June 2, 2016)
  6. ↑ Detlev Sternberg-Lieben: The objective barriers of consent in criminal law. Mohr Siebeck, Tübingen 1997, ISBN 3-16-146733-7 , p. 143. ( online . At books.google.de, accessed on June 2, 2016)
  7. ↑ Werner Flume : General part of civil law: Second part - The legal transaction. Springer, Berlin 1975, ISBN 3-642-96233-5 , pp. 365-368. ( Snippet . From books.google.de, accessed June 2, 2016)
  8. ↑ Werner Flume: General Part of Civil Law: Second Part - The Legal Business , Springer, Berlin 1975, ISBN 3-642-96233-5 , p. 368. ( Snippet . On books.google.de, accessed on June 2, 2016 )
  9. ↑ Law to Combat Unfair Competition , § 9 there. In: Deutsches Reichsgesetzblatt Volume 1896, No. 13, pp. 147-148 ( online . On de.wikisource.org, accessed on June 2, 2016)
  10. ^ Law against Unfair Competition .