Quasi-governmental injunction
The quasi-governmental right to cease and desist is a claim created in Germany by jurisprudence with which disturbances of absolute rights (for example: health, general personal rights ) can be averted by demanding that an impending disturbance be ceased and asserted through legal action. The claim is based on an analogy to some legally regulated injunctive relief claims.
application
If the property is interfered with in any other way than by withdrawal, the owner can sue for omission, cf. § 1004 BGB (actio negatoria or negatorial injunction ). Other claims for injunctive relief arise from § 12 BGB for naming rights and from § 862 BGB for disturbance of property .
For a number of other absolute rights, there is no expressly regulated injunction . This would lead to the result that such absolute rights and also legally protected legal interests (i.e. legal interests whose protection is intended by § 823 Paragraph 2 BGB) are protected in the event of a violation of a claim for damages, but a defense against the impairment in advance cannot be required. The person concerned would have to tolerate a violation of his rights and could only then assert claims for compensation. This can clearly not be intended by the legislature.
In order to counter this, the case law applies § 1004 Paragraph 1 Clause 2 BGB analogously in connection with a norm that guarantees protection.
Examples of this are § 1004 Paragraph 1 Clause 2 analogously, § 823 Paragraph 1 BGB for the legal interests mentioned in § 823 Paragraph 1 or § 1004 Paragraph 1 Sentence 2 BGB analogously in connection with the general personal rights of Art. 2 Paragraph 1 GG i. V. m. Art. 1 para. 1 GG. According to the prevailing opinion today, all absolute rights are protected.
A prerequisite for the affirmation of such a claim is an unlawful impairment of the protected property.
literature
- Jan Christoph Funcke: The so-called actio quasinegatoria: on the question of quasinegatory injunctive relief , Bielefeld University, dissertation, Bielefeld 2008, Duncker & Humblot, Berlin 2010, ISBN 978-3-428-12962-1 .
Individual evidence
- ^ BGH, judgment of June 21, 2005 , Az.VI ZR 122/04, full text = NJW 2005, 2844.
