Private law

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Private law is that area of law that the legal relationship between legally - not necessarily economically - equivalent entities (→  natural person , →  legal entity ) controls. The terms civil law or civil law ( translations of the Latin term ius civile ) are often used synonymously with private law , although strictly speaking they only refer to a part of it (namely the area of ​​“general private law”; see below).

Classification of ( objective ) law
Note: Although criminal law is usually presented or treated as an independent area of law , as is also shown here in the graphic , it is nevertheless formally part of public law .

In jurisprudence, private law stands alongside public law (including criminal law ); for a more precise definition, see the definition of private law . In contrast to public law, private law provides for a freedom of will derived from private autonomy , which in principle allows the individual to enter into a legal relationship with others (or to renounce it). However, this freedom can be restricted by a large number of actual circumstances, such as a monopoly or the financial strength of the individual. Regardless of this, however, it is formative for private law because it allows law to be shaped without state influence. One of the most important structural means under private law is the private law contract (see also: legal transaction , contract law ).

Classification of private law

Private law is divided at the top into

  1. General private law (including civil / civil law ) and
  2. Special private law (or other private law ).

For further subdivisions, see the corresponding paragraphs and graphics below.

While civil law summarizes basic rules on persons , things and obligations (in Switzerland: obligations ), special private law - sometimes also referred to as commercial private law - is largely independently codified, for example in commercial , labor and tenancy law , competition law , etc.

General private law

Structure according to the pandemic system

Classification of civil law (civil law) according to the pandemic system

The structure according to the Pandekt system divides civil law into five (or six, with independent personal law) sub-areas: general part (usually with personal law), law of obligations, property law, inheritance law, family law. This pandectistic scheme is followed by the German Civil Code (BGB) and the Swiss Civil Code (ZGB).

Structure according to the institutional system

Classification of civil law (civil law) according to the institutional system

The structure of civil law according to the institutional system , which is named after the main work of the classical Roman jurist Gaius , is a division according to Roman law , which was added during the time of the first great wave of codification - French Code civil , Austrian General Civil Code (ABGB) .

The classification is basically as follows:

The Austrian ABGB follows this scheme, but without including procedural law:

Special private law

Commercial law

Commercial law is known as the “special private law of merchants”. It includes legal norms , which for merchants apply, and therefore rules for commercial transactions, the company name of the merchant to commercial assistants ( trade brokers , sales representatives , commission agents , freight forwarders , warehousing), and further in the area of company law and rules on persons and corporations .

For all of these areas of law, the norms of general private law apply on a subsidiary basis . B. General private law generally applies to commercial transactions, but modified and expanded by the standards of commercial law.

This subsidiary relationship is codified in Germany in Art. 2 Para. 1 EGHGB . In the Swiss legal tradition, an independent commercial law has always been rejected on the grounds of democratic equality of all persons, which does not justify special treatment of merchants. Nevertheless, the OR occasionally contains special rules for commercial transactions (e.g. Art. 190 OR) which are intended to enable appropriate differentiations.

Employment Law

The Labor Law regulates the legal relationships between workers and employers ( individual labor law ) and between the coalitions of workers and employers and between representative bodies of workers and employers ( collective labor ).

The norms of labor law often contain (unilaterally) mandatory provisions in favor of the employee. Here, too, the norms of general private law apply subsidiary .

other areas

Further areas of special private law are e.g. B. the Mietrecht , the traffic civil law , the consumer protection law or the securities law , it being noted that the leases, the traffic civil law and the Consumer Protection Law are often treated together with the civil law (Schuldrecht / Contract Law) and the securities law has an intrinsic close relationship to the commercial law.

Codifications

A codification of civil law was made in Germany in 1900 with the Civil Code (BGB), in Austria in 1812 with the Civil Code (Civil Code), in Switzerland in 1883 with the Swiss Code of Obligations (OR) and 1912 with the Civil Code (CC), in France 1804 with the Code civil (Code Napoléon) and in Italy with the Codice civile . The Civil Code in particular had a strong impact and was a model for the other codifications of the so-called Civil Law Countries .

Before the German Empire introduced the civil code, there was already a codified land law in some German states, such as the Codex Maximilianeus Bavaricus Civilis of 1756 in Bavaria and the General Land Law for the Prussian States of 1794 (ALR). Some land rights were based on the civil code , e.g. B. the Baden land law of 1810 .

As early as the Middle Ages, many territories of the Holy Roman Empire of the German Nation had codified land law , which, however, regulated other areas of law (e.g. criminal and constitutional law) in addition to civil law.

International private law

In cases of private law with a foreign element (e.g. marriage of two people of different citizenship, a claim abroad or international contracts), there are special conflict of laws that determine which private law is to be applied. This area of ​​law is - somewhat misleadingly - referred to as private international law .

Individual legal matters have been given international law regulations which then precede national regulations, in particular the international sale of goods through the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, which Germany , Austria and Switzerland have also joined.

The globally unique possibility of bringing private law claims from any country in the world to a US court is regulated by the US Alien Tort Claims Act .

literature

Roman private law

Modern history of private law

Web links

Wikisource: The civil law , contribution to the status in the German Reich 1914  - sources and full texts
Wikisource: International private law , contribution to the status in the German Reich 1914  - sources and full texts
Wiktionary: private law  - explanations of meanings, word origins, synonyms, translations
Wiktionary: civil law  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Volker Mayer: Commercial Law Volume 1, Legal Business Doctrine, Obligations, Commercial Transactions . 1st edition. Kohlhammer, Stuttgart 2015, ISBN 978-3-17-030513-7 , pp. 11 (footnote 1 to paragraph 10) and passim .
  2. ↑ Volker Mayer: Commercial Law Volume 1, Legal Business Doctrine, Obligations, Commercial Transactions . 1st edition. Kohlhammer, Stuttgart 2015, ISBN 978-3-17-030513-7 , pp. 123 ff .