Highly personal right

In jurisprudence, highly personal rights are subjective rights to which a specific person is entitled and which are so closely related to the person entitled that they have their purpose and meaning exclusively for them.

General

Highly personal rights ( Latin iura personalissima ) are a subspecies of subjective rights. In the case of the latter, a legal subject has the legally guaranteed specific authority to do something (e.g. to exercise the right to freedom of expression ; Art. 5 GG ), to tolerate (the tenant must tolerate all measures that are necessary for the maintenance or repair of the rented property ; § 555a BGB ) to refrain ( property deterioration of the foreign property ; § 1004 to BGB) or require (a purchase price to charge). Most subjective rights - such as a claim - are characterized by the fact that their legal content is not very closely linked to their right holder (here the obligee ), so that the obligee can transfer them to other legal subjects without changing the content ; they are separable from the person.

Highly personal rights, on the other hand, are rights that are so closely linked to the person of their legal entity that they cannot be transferred and therefore expire with the death of the person entitled. Ultimate personality can result from the fact that the exercise of subjective rights is very closely linked to the personal relationship between the person entitled and the person obliged. It is inherent in highly personal rights that they are so closely linked to the person entitled or obliged to do so that they can only be used or fulfilled by the latter.

species

There are a large number of highly personal rights in the various areas of law.

Private law

The most personal rights under private law include:

• The obligation to work the employee is by § 613 regularly tied BGB to the person of the worker, so he has to pay in person; the employment relationship ends with the death of the employee.
• The contractor must carry out the order personally and, as a rule, may not transfer it to a third party ( Section 664 (1) BGB).
• Easements : easement ( § 1018 ff. BGB), usufruct ( § 1030 ff. BGB), limited personal easement ( § 1090 ff. BGB) and housing rights ( § 1093 BGB) are granted to a certain person as rights of use and can only be exercised by him become.
• Inheritance law : the highest personal rights of the testator (such as his association membership ) are linked to his person and cannot be inherited. The insight claim of the heirs to the medical records of the deceased on the other hand shall pass to the heirs.
• Family rights (such as the right to a name in accordance with Section 12 of the German Civil Code, marriage in accordance with Section 1311 , the compensation of profits in accordance with Section 1378 of the German Civil Code or the compulsory portion in accordance with Section 2303 of the German Civil Code) are of a highly personal nature. This also applies to the highly personal legal transaction of marriage ( Section 1310 Paragraph 1 BGB).
• Company law : Shareholder claims against each other in a company under civil law ( § 717 BGB) are of a highly personal nature. This also applies to the management of a GmbH or board members of an AG .
• Real Property : An existing benefit of a particular person real load , according to § 1111 of this non-para 2 BGB. Sold or charged , they will be bound to the beneficiary.
• Membership rights : The exercise of membership rights in the association cannot be left to another member of the association ( § 38 BGB). In contrast, the highly personal nature of a Facebook account was denied by the Federal Court of Justice (BGH).
• Rights to the personal legal interests of § 823 Abs. 1 BGB ( life , body , health , freedom ): These general personal rights can only be exercised by the person holding them.
• The will was by the testator can only be done in person ( § 2064 BGB).
• The maintenance claim after divorce is highly personal and expires with remarriage, the establishment of a civil partnership or the death of the person entitled ( § 1586 BGB, § 1615 BGB). Claims to the granting of maintenance are only to be fulfilled as long as the person entitled to maintenance lives ( § 1568 BGB, § 1615 BGB).
• Claim for injunctive relief : The Reichsgericht (RG) already classified the injunction claim in June 1935 as a highly personal right, which is why it is non-transferable as such.
• As a highly personal right, copyright is not transferable, except by way of disposal due to death or to co-heirs by way of inheritance disputes ( Section 29 (1) UrhG). The right of use is an exception . Despite the highest personality, patents and licenses ( Section 15 PatG ), trademarks ( Section 27 (1 ) MarkenG ) as well as designs and utility models ( Section 29 Design Act , Section 22 GebrMG ) are transferrable, but not the inventor's personality right .
• The entitlement to vacation can only be granted to the employee by exemption from his (highly personal) duty to work, the content of the vacation entitlement is therefore the elimination of the duty to work for the duration of the vacation period according to § § 1 , § 3 BUrlG . However, the holiday compensation claim that has already arisen is transferred to the heirs as a pure monetary claim upon the death of the employee in accordance with Section 1922 BGB.
• The right of first refusal in the law of obligations from Section 463 of the German Civil Code (BGB) is intended to serve the interests of an individual and therefore regularly cannot be removed from his person.

These rights are granted to a specific person and can only be exercised by that person.

Public law

In public law , highly personal, subjective public rights are typical of social law . For example, the entitlement to a pension from the statutory pension insurance ends with the death of the insured person ( Section 102 (5 ) SGB ​​VI ). Pensions from the Social Accident Insurance survivors are until their death made ( § 73 para. 6 SGB VI). These claims secure the livelihood of the individual and can therefore not be inherited. The obligation to personally register unemployed people who are claiming unemployment benefits is of particular practical importance . You have to register personally with the authority as unemployed ( Section 141 SGB ​​III ).

Constitutional law

In terms of constitutional law , fundamental rights in particular are designed as highly personal rights. Only the respective holder of the fundamental rights can therefore invoke his or her fundamentally guaranteed legal position vis-à-vis the addressees of the fundamental rights. The fundamental rights holder "should begin with the fertilization of the egg", it basically ends with death. For example, the right to informational self-determination under Article 2, Paragraph 1 of the Basic Law is only available to the holder of fundamental rights; he alone may, for example, assert the right to his own image . If he sees his fundamental right violated, he can lodge a constitutional complaint against this . Anyone who asserts the violation of a fundamental right in a constitutional complaint must be directly and personally affected by it. The constitutional complaint procedure is characterized in that it serves exclusively to enforce certain, subjective, highly personal rights of the complainant. Whether human dignity is also protected beyond the death of the person concerned is a matter of individual dispute.

The right to vote is one of the highly personal public rights ; Citizens have to cast their vote themselves (active right to vote, § 14 BWahlG), and they can also only exercise their right to stand for election (passive right to vote, § 15 BWahlG) themselves. Neither the voters nor the elected can be represented in the exercise of their rights.

Procedural law

The substantive law follows the procedural law . Highly personal claims must be asserted by the legal entity itself in administrative or court proceedings ( litigation authority ). In particular, arbitrary litigation is excluded in the case of highly personal claims and rights, because they are not transferable.

A distinction is to be made between representation in proceedings and the highly personal assertion. In the first case it is about the position as a party in the proceedings, in the second it is about who is actually acting in the process or in the administrative procedure for the plaintiff or applicant. The person concerned can therefore, for example , be represented by a lawyer .

properties

Highly personal rights are so closely linked to a specific person that only they can assert them as a legal entity. You stay with that person until their death. These rights are therefore neither assignable , transferable , inheritable , attachable nor pledging ; this results from § § 399 , § 400 BGB and § 851 Abs. 1 ZPO. They are therefore not subject to the concept of the legal object . Highly personal rights are also not accessible to a representative , but must be exercised by the legal entity himself. This is particularly clear when entering into a marriage. The representative exercise of highly personal rights through the power of representation of the legal representative is also not possible.

International

The Swiss civil law distinguishes between, inter alia capable of judgment and incapable of judgment people. Every person is capable of judgment within the meaning of Article 16 of the Civil Code who does not lack the ability to act reasonably because of their child's age, mental handicap, mental disorder, intoxication or similar conditions. Judgment capable but action incompetent persons hold highly personal rights independently from, for judgment incompetent persons is the legal representative, unless a right is so closely linked with the personality that each representation is excluded (Article 19c of the Civil Code.). For this reason, law in Switzerland differentiates between absolute and relatively highly personal rights. Absolutes are particularly closely linked to the personality of the legal entity and are not accessible for representation, but must be exercised by the legal entity. Relatives, on the other hand, allow a substitute for those incapable of judgment. According to Art. 256 ZGB, the family law challenge is a highly personal legal transaction.

In Austria , the disposition of the rights associated with the very personal sphere of life is incompatible with legal representation. Natural insight and judgment are required for such dispositions. If this insight is missing, a highly personal right can neither be replaced by the legal representative or trustee nor by the guardianship or guardianship court. The right to one's own picture as well as data protection law are highly personal rights; Consent to the public use of such data or images is a declaration of intent of a highly personal nature that can only be given by the person concerned. In Austria, too, the employee (“employee”) has to perform the services in person; the entitlement to the services is not transferable ( Section 1153 ABGB ). According to § 564 ABGB, the testator can only declare his last will himself (highly personal declaration of will).

In June 2014, the European Court of Justice (ECJ) recognized the right to paid annual leave as a “particularly important principle of social law”. The relatives of the deceased employee can therefore claim compensation from the employer for the leave not taken due to death.

Web links

• Representation bans - in rechtslexikon.net

Individual evidence

1. ↑ Carl Creifelds , Creifelds Legal Dictionary , 21st edition 2014, p. 661, ISBN 978-3-406-63871-8
2. ↑ Peter Mankowski, Elimination Rights: Appeal, Revocation and Related Institutes , 2003, p. 990
3. ↑ BVerwGE 15, 234 , 235
4. ↑ BGH NJW 1983, 2627 , 2628
5. ↑ Otto Palandt / Christian Grünberg, BGB Commentary , 73rd edition, 2014, § 413 Rn. 2
6. ↑ Press release No. 115/18 of July 12, 2018. Accessed July 14, 2018 . 
7. ↑ René Lochmann, The Granting of Television Transmission Rights to Sports Events , 2005, p. 109
8. ↑ RG 148, 147
9. ^ BAG, judgment of September 20, 2011, Az .: 9 AZR 416/10
10. ↑ BAG, judgment of 22 September 2015, Az .: 9 AZR 170/14
11. ↑ Carl Crome, System des Deutschen Bürgerlichen Rechts: Law of Obligations , 1st Half, Volume 2, 1902, p. 498
12. ↑ Bodo Pieroth / Bernhard Schlink, Basic Rights. Constitutional Law II . 25th edition 2009. ISBN 978-3-8114-9709-2 . Marg. 120.
13. ↑ ^{a b} Hans D. Jarass. In the S. and Bodo Pieroth: Basic Law for the Federal Republic of Germany . Comment. 7th edition. Munich. 2004. ISBN 3-406-51428-6 . Art. 1 GG Rn. 6 with further evidence.
14. ↑ Hans D. Jarass. In the S. and Bodo Pieroth: Basic Law for the Federal Republic of Germany . Comment. 7th edition. Munich. 2004. ISBN 3-406-51428-6 . Art. 19 GG Rn. 8 with further evidence.
15. ^ Stefan Ruppert, in: Dieter C. Umbach / Thomas Clemens / Wilhelm Dollinger, BVerfGG , 2005, § 90 Rn. 23
16. ↑ Michael Sachs, Constitutional Law II: Basic Rights . 2nd Edition. 2003. ISBN 3-540-00003-8 . B. 38 para. 6th
17. ↑ Otto Palandt / Wolfgang Edenhofer , BGB Commentary , 73rd Edition, 2014, § 1922 BGB Rn. 36
18. ↑ Winfried Boecken, BGB - General Part , 2007, p. 113
19. ↑ Debora Tanner, The Underage Mother and Her Child , 2009, p. 17
20. ^ Franziska Sprecher, Medical Research with Children and Adolescents , 2007, p. 204
21. ↑ The ultimate personality of the action for avoidance (PDF; 33 kB). In: Department of the Interior. GER 10/2007. Retrieved July 28, 2012.
22. ↑ Thomas Höhne, Who can dispose of highly personal rights , in: Zeitschrift für Informationsrecht, Heft 3, 2015, p. 330
23. ↑ OGH, decision of May 10, 2005, Az .: 5Ob94 / 05t
24. ↑ ECJ, judgment of June 12, 2014, Az .: C-118/13 Gülay Bollacke ./. K + K Klaas & Kock BV & Co. KG

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