scope of application
By nature, only people have legal capacity , because they are the sender and addressee of the contained commandments of the legal order. Only they understand their meaning and can follow them. The same applies to legal acts. In addition, associations of people, legal persons, in particular private associations and public corporations, may be affected by legal obligations and rights (e.g. as owner). If “law” is understood to mean an order of human behavior, the duties and powers of a legal person are to be assigned to the people who are organized in the association, whereby the association constitution specifies who has to fulfill which duties of the association and who is responsible for them to exercise certain powers of the association (competence).
In Roman law , for example , slaves were legal objects (of the same kind ), not legal subjects. For legal positivism , this was the law. According to Hans Kelsen , in a certain sense all legal subjects within a legal system are to be regarded as “legal persons”. The distinction is usually made by dividing into natural and legal persons .
In a broad sense, legal persons are all legal subjects of a legal system that are not natural persons. In a narrower sense, legal persons are only those legal subjects who are not natural persons whose legal capacity is expressly recognized by the respective legal system.
- Example: A civil society is not viewed as a legal person (in the narrower sense) in Germany. Due to its legal capacity (in the case law since 2001) it is nonetheless a legal subject as well as other joint property communities .
- Counterexample: ARD ZDF Deutschlandradio Contribution Service (successor to GEZ) is a public-law , non-legal community facility.
Legal capacity in international law
Usually only sovereign states are viewed as subjects of international law , but peoples and nations are not. Although peoples are accordingly not regarded as legal entities, they have the right to self-determination of the peoples . In order to circumvent the problem of realizing the right to self-determination, the disregard of the right to self-determination by a state is usually seen as a violation.
Legal capacity in individual legal systems:
- Legal capacity (Germany)
- Legal capacity (Liechtenstein)
- Legal capacity (Austria)
- Legal capacity (Switzerland)
- Legal capacity (Italy)
- Otto Kimminich : The right of peoples to self-determination. Church and Society, No. 186, 1992, ISBN 3-7616-1201-X .
- Reinhold Zippelius : Das Wesen des Rechts , 6th edition, chap. 2 g.
- Reinhold Zippelius: Philosophy of Law , 6th edition, § 3 I.
- Reinhold Zippelius: Allgemeine Staatslehre , 16th ed., §§ 13 II, 14 I.
- See Klaus Adomeit , Rechtsstheorie .
- See instead of many Creifeld's legal dictionary in any edition.
- Imprint - ARD ZDF Deutschlandradio , accessed on August 16, 2017.