Open water

Open waters and closed waters are terms from German fishing law . They regulate the question of ownership of fish and the right to fish in a specific body of water. German fishing law is regulated by state law. The term open or closed water is only used in some state fisheries laws.

Civil Code

Section 960 of the Civil Code specifies: “(1) Wild animals are ownerless as long as they are in the wild. Wild animals in zoos and fish in ponds or other closed private waters are not ownerless. ”As a result, anyone who fishes unauthorized in such waters is not guilty of fish poaching according to Section 293 of the Criminal Code, but instead commits theft . A closed body of water in this sense ( civil law ) is not necessarily synonymous with a closed body of water in the sense of fishing law. A body of water that is closed under civil law only exists if the body of water has only one owner. Otherwise it is independent of the size, the naturalness or the special structural shape of the water. Closed waters in the sense of civil law are already defined in a similar form in Section 176 of the General Land Law for the Prussian States of 1794.

Fishing law

In fishing law , the term is defined somewhat differently. In some state fisheries laws, closed waters are fish ponds , fishing ponds or other artificially created still waters without connection to any other (open) body of water. It is important that closed waters must be cordoned off from other waters against a change of fish. All other waters are open waters (in the Bavarian Fisheries Act: "non-closed waters"). A body of water that is open under fishing law can be closed under civil law.

"Fish" in the sense of fishing law also includes lampreys , mussels (large mussels: river and pond mussels as well as river pearl mussels ) and crabs ( crayfish ).

Closed waters under fishing law are exempt from certain regulations that apply to open waters, depending on the state regulations. This concerns about the obligation to Hege or the granting of fishing rights and powers. In addition to the Bavarian Fisheries Act, closed waters are mentioned in the Saarland Fisheries Act, the State Fisheries Act of Rhineland-Palatinate and the Fisheries Act for the State of Schleswig-Holstein. The other state fisheries laws usually contain corresponding regulations without using the terms open or closed waters.

Individual evidence

↑ Bernd Schünemann: Fish poaching. in Klaus Tiedemann, Bernd Schünemann, Günter Gribbohm, Eckhart von Bubnoff: Criminal Code. Leipzig commentary. Volume 7, §§ 264 to 302. De Gruyter Recht, Berlin 2005. ISBN 3-89949-290-0 .
^ ^A ^b Hans Josef Wieling: Property Law: Volume 1: Property, possession and rights to movable property. In: Encyclopedia of Law and Political Science, founded by F. von Liszt and W. Kaskel. Springer Verlag Berlin etc. 1990. ISBN 978-3-662-09795-3 . Section 5, Wild Animals. on page 477.

[1] Bernd Schünemann: Fish poaching. in Klaus Tiedemann, Bernd Schünemann, Günter Gribbohm, Eckhart von Bubnoff: Criminal Code. Leipzig commentary. Volume 7, §§ 264 to 302. De Gruyter Recht, Berlin 2005. ISBN 3-89949-290-0 .

[Wiehling-2] A ^b Hans Josef Wieling: Property Law: Volume 1: Property, possession and rights to movable property. In: Encyclopedia of Law and Political Science, founded by F. von Liszt and W. Kaskel. Springer Verlag Berlin etc. 1990. ISBN 978-3-662-09795-3 . Section 5, Wild Animals. on page 477.