The treasure trove is one of the state regalia and is a legal rule that abandoned until the time of the find hidden treasures with its finding property to the state, without the need for another (transmission) Act is required.
Origin and history
Like the Bergregal , it originally belonged to the regalia (Latin iura regalia ), the sovereign rights of the sovereign or king. This is where the somewhat antiquated name comes from.
The treasure shelf as the sovereign right of the king was evidently taken over by the Frankish royalty. In the area of the Duchy of Würzburg, for example, the bishop perceived his treasury as the sovereign. As a result of the Sachsenspiegel , which was first written in Latin by Eike von Repgow between 1224 and 1227 and then translated into German , this royal shelf has largely established itself as ius regale, at least in jurisprudence . It reads: “All treasures. those buried deeper under the earth than a plow can go belong to the royal power. ”Later, in the Codex Maximilianeus Bavaricus Civilis, there was a regulation that, in the renewal of a general mandate from 1752, granted the tax authorities two thirds and the remaining third divided between the finder and the property owner . The Civil Code (BGB), which came into force in January 1900 , provided for the Hadrian division (in the form of joint ownership between the finder and the property owner) in BGB , but most of the federal states (with the exception of Bavaria) have the Opening clause in EGBGB made use of the treasure shelf again. This prevents the finder from acquiring property.
With the exception of Bavaria, all federal states have introduced a treasure shelf in their state monument protection laws. As an example, § 12 of the Brandenburg Monument Protection Act of July 22, 1991 is cited: "Movable ground monuments that are ownerless or that have been hidden for so long that their owner can no longer be determined, have become the property of the land since they were discovered Permitted excavations or in excavation protection areas are discovered or if they are of value for scientific research. ”After North Rhine-Westphalia also tightened its monument protection law in July 2013, only Bavaria still knows the“ Hadrian division ”.
Contrary to the name, in the majority of cases in practice it is not about finding a treasure , but about finding ground monuments , i.e. archaeological and - in some legal systems as well - paleontological cultural monuments .
In the event of an unexpected treasure find, there are two alternative regulations in Germany: treatment according to the treasure shelf or treatment according to the " Hadrian division " (§ 984 BGB). Most of the federal states deviate from the Hadrian division through the opening clause in Art. 73 EGBGB and make use of the state right of appropriation for cultural monuments . The treasure finder is subject to an obligation to notify according to all state monument protection laws. For example, Section 11, Paragraph 2 of the Brandenburg Monument Protection Act stipulates that the discoverer, the person authorized to dispose of the property and the manager of the work during which the find was discovered must report the find.
In 15 of the 16 German federal states , the monument protection laws contain a provision that provides for the treasure shelf. The last exception is Bavaria . The detailed design of the principle is slightly different in the individual federal states, for example:
- In Bremen , the property acquired by the state by virtue of the treasure shelf is transferred ex nunc to those entitled under German Civil Code if it is not entered in the list of monuments within three months.
- In Lower Saxony there is a treasure shelf - that is, the purchase by the state - if the find was discovered during state excavations, in excavation protection areas or if the "treasure" is of outstanding scientific value. Compensation from the country is possible.
- In the Saarland , the treasure shelf applies to finds made on the occasion of state research, in excavation protection areas, from unauthorized excavations or if the finds are of scientific value.
According to the case law of the Federal Constitutional Court and Federal Administrative Court (BVerwG), the provisions on the treasure shelf in the monument protection laws of the federal states correspond to the Basic Law . The BVerwG decided in November 1996 that Basic Law (freedom of career choice) is not unreasonably restricted by monument protection norms and that the federal states have legislative competence with regard to the treasure shelf .
Bavaria, which is the only state that does not have a treasure shelf, can, however, secure outstanding finds for itself due to other provisions (e.g. delivery against compensation) and, regardless of the question of ownership, send them to a scientific study.
In the sense of the Swiss Civil Code, objects of scientific interest that have a scientific value are abandoned bodies of nature and antiquities . Abandoned natural bodies and antiquities i. S. d. Art. 724 ZGB are movable objects. By law (ex lege) they become the “property of the canton in whose territory they are found” (Art. 724, Paragraph 1 of the Civil Code). The finder or the owner of the property has a right to compensation for appropriate remuneration (Art. 724 Paragraph 3 ZGB).
Abandoned natural bodies and antiquities within the meaning of the Civil Code cannot be sold without the approval of the responsible cantonal authority. The acquisition and acquisition in good faith are also excluded. The right to surrender against the canton in whose territory the item was found does not expire (Art. 724 Paragraph 1 bis ZGB).
The legal situation in Liechtenstein with regard to the treasure shelf largely corresponds to the legal situation in Switzerland. According to Art. 192 of Liechtenstein Property Law (SR), abandoned natural bodies and antiquities are objects of scientific interest. It only covers objects of considerable scientific value. Abandoned natural bodies and antiquities i. S. d. Art. 192 i. V. m. Art. 444 and 445 SR are movable property. By law (ex lege) they become the property of the State of Liechtenstein (Art. 445 para. 1 SR). The finder or the owner of the property has a right to compensation for appropriate remuneration (Art. 445, Paragraph 3 SR).
There is currently no treasure shelf in Austria. The ABGB in the version of 1811 was divided into three parts: one third each of the treasure's value went to the finder, the property owner and the treasury. By court chancellery decree of June 15, 1846 (published in Justitzgesetzsammlung 1846/970) the state waived its share.
Since a change in the law in 2002 ( Federal Law Gazette I No. 104/2002 ), this has also been reflected in the wording of Section 399 of the Austrian Civil Code: The finder and the owner of the property each receive half of a treasure.
In France, the principle of Hadrianic division applied until the law of 7 July 2016 was introduced . The relevant Article 716 of the Civil Code , which so far, as in Germany (see Section 984 BGB), provided for a division between the finder and the landowner, takes place in accordance with the law of 7 July 2016 u. a. no longer used for objects found in the course of archaeological research. The amendment to the law provides for the introduction of a treasure shelf (Art. L. 541).
The Treasure Act 1996 applies in England and Wales . The finder is obliged to report finds to the locally responsible coroner , who decides whether a find is to be classified as a treasure. The Treasure Valuation Committee decides on the monetary value of the treasure, which represents the purchase price for a museum. Any finds that are not classified as treasure within the meaning of the law will be treated under the Portable Antiquities Scheme .
Many states have a treasure shelf - especially for archaeological finds. There is no country in the world with sites of ancient high culture that does not have a treasure shelf, in Greece since around 1834.
The effects of the treasure rack are controversial among numismatists . Critics object that the treasure shelf encourages the misappropriation of finds. For example, the renowned numismatist Niklot Klüßendorf has clearly spoken out against the treasure shelf. Proponents of the treasure shelf point to the clear legal situation created when the treasure shelf was introduced. It avoids situations in which predatory graves dig illegally, but nevertheless become half the owner of what is found.
The different legal situations between the German federal states also promote “find tourism”, in which archaeological finds are brought to a country without a treasure shelf and the original location is incorrectly stated. The extent of the resulting inaccuracies on find distribution maps is not known.
- R. Fischer zu Cramburg: The treasure shelf . Höhr-Grenzhausen 2001. ISBN 3-923708-11-4
- Strobl, Majocco, Sieche: Monument Protection Act for Baden-Württemberg. Commentary and collection of rules . Kohlhammer, Stuttgart 2001 (2nd edition). ISBN 3-17-015621-7
- J. von Staudingers: Commentary on the civil code with introductory law and ancillary law. 2004. (Book 3 Property Law Rn. 21 to § 894 BGB) ISBN 3-8059-0969-1
- Marisa Katharina Hermans: The Treasure Find. A comparison of the legal relationships to a treasure in German and Dutch law, taking into account special provisions under public law (Scientific publications of the Westfälische Wilhelms-Universität. Series III, Vol. 6). Münster 2011. ISBN 978-3-8405-0045-9
- Peter Tuor, " The Swiss Civil Code ", Art. 724 ZGB, Schulthess-Verlag , Zurich 1973.
- Antonius Opilio , Working Commentary on Liechtenstein Property Law , Volume II, Art 445 SR, EDITION EUROPA Verlag , 2009, ISBN 978-3-901924-25-5 .
- 2011: The German Society for Prehistory and Early History (DGUF) supports the introduction of the treasure shelf in Hesse
- May 2012: Statements by the parties on the introduction of the treasure shelf in NRW
- Friedrich Merzbacher , Iudicium provinciale Ducatus Franconiae: The imperial district court of the Duchy of Franconia-Würzburg in the late Middle Ages , 1956, p. 179
- Karl Kroeschell, Der Sachsenspiegel in a new light , in: Heinz Mohnhaupt, Rechtsgeschichte in den zwei German states (1988–1990) , 1991, p. 232 f.
- quoted from Karl August Eckardt, Sachsenspiegel, Landrecht , 3rd edition, 1943; Translated based on Hans-Christoph Hirsch / Eike von Repgow, Sachsenspiegel, Landrecht , in: Johannes Weidemann (ed.), Writings of the Hallische Wissenschaftliche Gesellschaft. Vol. 3, 1939
- II., 3, 4
- BVerwG, judgment of November 21, 1996, Az .: 4 C 33/94
- ALEX Historical legal and legal texts online
- Loi n ° 2016-925 du 7 July 2016 relative à la liberté de la création, à l'architecture et au patrimoine
- Article 716 of the French Civil Code (Code civil)