Furnishing guarantee
As device guarantees are called direct constitutional guarantees special institutions and legal institutions and thus brought about protection against simple legislative access.
history
According to traditional opinion, the founder of the doctrine of furnishing guarantees is Carl Schmitt . It is wrong to say that the essential basic ideas of the dogmatic figure were already developed in 1924 by Martin Wolff (FG f. Kahl). It is true, however, that it was Schmitt who helped the doctrine to break through, because he knew how to consistently integrate it into his system of constitutional doctrine (1928).
Schmitt's aim was to develop a constitutional handle against the legislative omnipotence assumed by the then prevailing view of constitutional law , because unlike now in Article 1, Paragraph 3 of the Basic Law , the legislature under the Weimar Imperial Constitution was largely exempt from being bound by fundamental rights . The doctrine of furnishing guarantees turns against this.
Under the Basic Law, the dispute, which had broken off in 1933, was initially followed up; nevertheless, shifts in emphasis were unavoidable, since the now undisputed constitutional domestication of the legislature achieved the main purpose. The dogmatic sense of the figure is not without controversy, especially because furnishing guarantees tend to have an inhibiting, preserving, classic effect and are therefore considered a “conservative” institute.
Systematics
Institutional guarantees can be distinguished from institutional and institutional guarantees. Institutional guarantees are constitutional guarantees of public law institutions (e.g. self-administration of universities and municipalities, professional civil service ). These legal institutions cannot therefore be abolished by the simple legislature. Institute guarantees, on the other hand, protect institutions under private law (e.g. property , inheritance law , marriage , family ). The state must shape private law in such a way that these institutes can survive what happened in the BGB.
Establishment guarantees do not simply prohibit the legislature from defining the legal structure of a particular institute. They simply force him to leave the "core", the "essence" of the facility untouched. A contemporary design of the accidentalias, however, is almost given to him. For example, the institute of marriage ( Article 6 of the Basic Law) must be guaranteed as a life-long relationship between two partners. The structure in detail (special rights and obligations, maintenance, consequences of divorce, etc.) is determined by the simple law . This distinction is particularly clear for the institutional guarantee of ownership . The content and limitations of property result from the law, however, the basic assignment of assets as such to a person and their fundamental authorization to use them for their own good (private benefit) are not available.
Furnishing guarantees in the Basic Law
Although the Basic Law does not recognize the concept of furnishing guarantees (e.g. the constitution of the state of Saxony-Anhalt , 2nd main part, 2nd section), a number of provisions are traditionally understood as furnishing guarantees:
- free press , Art. 5 GG
- Marriage and family , Art. 6 GG
- Private schools , Article 7 of the Basic Law
- Freedom of association , Art. 9 GG
- Property and inheritance law , Art. 14 GG
- Parties , Art. 21 GG (occasionally, but disputed)
- communal self-government , Art. 28 GG
- Professional civil service , Art. 33 GG
Examples of institutional guarantees:
- Jurisdiction , Art. 19 Para. 4 GG
- Professional civil service , Article 33 (5) of the Basic Law
- local self-government, Art. 28 para. 1 GG
Examples of institutional guarantees:
- Marriage, Article 6, Paragraph 1 of the Basic Law
- Private schools, Article 7, Paragraph 4 of the Basic Law
- Property and inheritance law, Article 14, Paragraph 1 of the Basic Law
outlook
Since the dogmatic figure of the furnishing guarantee can hardly be viewed abstractly from its constitutional historical origin, it does indeed have the impression of a fossil. With regard to its application as constitutional dogmatics, the dubious and imprecise delimitation of core and shell, of essence and non-essence appear to be particularly problematic. Another approach to the questions associated with furnishing guarantees is the very differentiated relationship between the constitution and simple law, which has been developed under the Basic Law.
literature
- Carl Schmitt : Freedom Rights and Institutional Guarantees in the Reich Constitution. In: Carl Schmitt, Paul Gieseke and others: Legal contributions. for the 25th anniversary of the Berlin School of Commerce. Hobbing, Berlin 1931, p. 1 ff. (Again in: Carl Schmitt: Constitutional essays from the years 1924–1954. Materials for a constitutional theory. 3rd edition, unchanged reprint of the 1st edition published in 1958. Duncker and Humblot, Berlin 1985 , ISBN 3-428-01329-8 , pp. 140 ff.).
- Carl Schmitt: Content and meaning of the second main part of the Reich constitution. In: Gerhard Anschütz , Richard Thoma (Hrsg.): Handbuch des Deutschen Staatsrechts. Volume 2. Mohr, Tübingen 1932, § 101, p. 572 ff. ( The public law of the present 29, ZDB -ID 203962-x ), (again in: Carl Schmitt: Constitutional essays from the years 1924–1954. Materials on . a constitutional theory . 3rd edition, unchanged reprint of the 1958 edition published the first Duncker and Humblot, Berlin 1985, ISBN 3-428-01329-8 , p 181 ff as:. fundamental rights and obligations of the Constitution (1932). ).
- Friedrich Klein : Institutional guarantees and legal institute guarantees. Marcus, Breslau 1934 ( treatises on constitutional and administrative law including international law 49, also: Frankfurt, Univ., Diss. 1933, ZDB -ID 584226-8 ).
- Arnold Köttgen: The basic right of the German university. Thoughts on the institutional guarantee of scientific universities. Schwartz, Göttingen 1959 ( Göttingen jurisprudential studies 26, ZDB -ID 503123-0 ).
- Gunther Abel: The importance of the doctrine of the furnishing guarantees for the interpretation of the Bonn Basic Law. Duncker & Humblot, Berlin 1964 ( Public Law Publications 15, ISSN 0582-0200 ).
- Edzard Schmidt-Jortzig : The establishment guarantees of the constitution. Dogmatic content and security of a controversial figure. Schwartz, Göttingen 1979, ISBN 3-509-01108-2 .
- Klaus Stern : § 68 furnishing guarantees. In: Klaus Stern: The constitutional law of the Federal Republic of Germany. Volume 3: General Teachings of Fundamental Rights. Half volume 1: Fundamentals and history, national and international constitutionalism of fundamental rights, legal meaning of fundamental rights, those entitled to fundamental rights, those obliged to do so. Beck, Munich 1988, ISBN 3-406-07019-1 .
- Kay Waechter: Furnishing guarantees as dogmatic fossils. In: The administration. 29, 1996, ISSN 0042-4498 , pp. 47-72.
- Ute Mager : Furnishing guarantees. Origin, roots, changes and constitutional redefinition of a dogmatic figure of constitutional law. Mohr Siebeck, Tübingen 2003, ISBN 3-16-148001-5 ( Jus publicum 99, zugl .: Berlin, Freie Univ., Habil.-Schr., 2002).
- Claudia Mainzer: The dogmatic figure of the furnishing guarantee. Nomos-Verlags-Gesellschaft, Baden-Baden 2003, ISBN 3-8329-0329-1 ( Augsburger Rechtsstudien 35, zugl .: Augsburg, Univ., Diss., 2003).
