Reception (right)

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In jurisprudence, reception is understood to mean the whole or partial adoption, adoption or adoption of legal provisions and / or legal ideas (e.g. values) from another legal community.

Historical reception

The best-known and probably most important reception of legal provisions for the European area was the reception of Roman law , in particular the corpus iuris civilis or the adaptation of tribal rights (for example: Germanic tribal rights ) and land rights to Roman law in the Middle Ages.

The reception of Roman law is more or less directly or indirectly demonstrable in all European legal systems.

Reception process

One-sided - two-sided - multi-sided reception

The reception can be a one-sided process (adoption of legal provisions or legal concepts by another legal community without retroactive effect) or a bilateral process (adoption of a legal provision or legal conceptions by a legal community and retroactive effect of the adopted legal provision or legal concept on the country of origin / community of origin).

In the context of a larger community (for example the European Union ) or in the context of a hegemonic power , reception also takes place on several sides. The reception within the framework of a supranational community such as the EU is reciprocal and largely equitable (legal harmonization - horizontal reception). The reception in the environment of a hegemonic power, on the other hand, usually takes place in one direction (vertical reception), in that several dependent legal communities adopt the legal norms or values ​​of the hegemonic power and only in exceptional cases does a reaction on the hegemonic power take place.

Voluntary - involuntary reception

The reception of legal provisions or legal ideas takes place voluntarily, if

  • the legal community taking over (recipient) takes over the legal provision or legal concept of its own accord and
  • can undo.

The reception of legal provisions or legal ideas takes place involuntarily, if

  • the legal community taking over does not adopt the legal provision or legal concept of its own accord or
  • can not reverse independently.

Conscious - unconscious (creeping) reception

The reception of legal provisions or legal ideas takes place consciously when the recipient strives for the takeover and carries it out permanently.

An unconscious reception of legal provisions or legal ideas takes place when there is a creeping (“silent”) change, especially in legal ideas and, subsequently, in legal provisions.

Permanent - temporary reception

A reception can be viewed as a permanent adoption of legislation or legal ideas, though

  • the takeover remains in the legal status of the recipient for a longer period of time and
  • significant effects on other legal norms and legal ideas of the recipient can be proven.

In any case, there is only a temporary reception if the adoption of legal provisions or legal ideas does not have any significant effects on the legal status of the recipient.

The outwardly visible will to permanently or not to adopt legal provisions or legal concepts has no influence on the classification as permanent or temporary reception. A special form of reception of partial legal provisions and legal conceptions takes place through the deepened European integration also in the judicial area and the ongoing mutual recognition of court decisions and arbitral awards. The effects of this form of “silent” reception have not yet been adequately researched or seen, as the corresponding adjustments in the EU member states are almost unnoticed (creeping). These adjustments are conditioned by the compulsory recognition of court decisions and arbitral awards from the respective other Union member states, since the implementation must take place in the other Union member state due to the contractual obligations and hardly any exceptions are permitted (see the possible exceptions: Prerequisite for the recognition of court decisions and extension of effect).

See also:

Direct - indirect reception

The reception of legal provisions or legal ideas can take place in different ways:

  • directly
    • Direct adoption of a legal regulation or legal concept without change (reception en bloc)
    • direct adoption of a legal provision or legal concept without significant changes in content,
    • Direct adoption of a legal regulation or legal concept with a significant change in content
  • indirectly
    • Open adoption of legal provisions or terms, content, thoughts or values ​​from another legal community. These are adapted in their own context and transformed into something new in their own right, whereby the reception template remains visible.
    • hide adoption of legal provisions or terms, content, thoughts or values. These are adapted in their own context and transformed into something new in their own right, whereby the reception template is not visible at first glance.

The direct reception is always an open reception in which the source remains easily recognizable. The transition between direct reception with substantial changes in content and open, indirect reception is fluid and must be determined on the basis of the individual case.

Reception in the law is an evolutionary process in which, under optimal circumstances, the best thoughts and values ​​are established and understood.

Current reception (example)

Supranational level

As part of the European Union of harmonization within the framework via the European law taken more or less in the national law directly or indirectly influence (directly, for example, about to be implemented European legislation , indirectly, for example by jointly emerging ideas of a common space of freedom, security and justice ), by, for example, its own citizens against the Union citizens should not be disadvantaged (compared, for example, the reverse discrimination ).

International law level

At international level has been primarily in the area of the war international law , the criminal law and the fundamental rights ( human rights , civil rights , civil liberties ), mutual interference and reception, especially with values arise. Likewise, in the context of the "autonomous follow-up", there may be voluntary legal alignment by third countries (see: Legal alignment in the European Union ).

Reception within the framework of private actors

In the context of the increasing global interdependence in all areas (e.g. economy , politics , culture , environment , communication etc.) there is also a reception of the legal framework in the area of ​​private actors (especially business people / corporations ). This is partly supported by national, supranational and international law .

Copyright and reception

Legal regulations are generally not subject to copyright.

The adoption of a legal norm in another legal community is usually also seen in jurisprudence as an award for the creator (s) of the original law norm. Legal communities are therefore not prevented from adopting legal provisions and legal ideas.

Under international law there is no prohibition or an approval or approval requirement for the reception of legal provisions from another legal community.

See also

literature

  • Helen Keller : Reception of International Law . A comparative law study on the practice of the US Supreme Court, the Court of Justice of the European Communities and the Swiss Federal Supreme Court in selected areas. 1st edition. Springer, Berlin (inter alia) 2003, ISBN 3-540-00396-7 .

Individual evidence

  1. ↑ Example: Adoption of the Swiss civil code in Turkey
  2. ↑ Example: Austria took over private foundation law from Liechtenstein in 1990 and this private foundation law had retroactive effect on the reform of foundation law in Liechtenstein around fifteen years later
  3. ↑ For example, because whole sentences and specific word groups are transformed from the adopted norm into national law (legal norm).
  4. ↑ Compare, for example, Section 5, Paragraph 1 of the German Copyright Act (UrhG): Laws, ordinances, official edicts and notices as well as decisions and officially drafted guidelines on decisions are not protected by copyright .