Barrier (right)
The legal term barrier is used figuratively in legal language for the restriction of rights. In constitutional law in particular , the terms barrier and “ barrier-barrier ” are part of everyday work in the doctrine of fundamental rights .
The necessity of the “legal limit” is explained as follows: In numerous cases a fundamental right is comprehensively guaranteed according to the wording of the law, for example property in Art. 14 of the Basic Law . At the same time, however, the law must find its limits where it affects the rights of others. Therefore, the legislature reserves in a so-called barriers of title regularly, to the extent necessary to limit the scope of the law by law for anyone irrespective of his right has. In doing so, however, he himself must always keep his original guarantee of the law in mind. This forms the so-called “barrier”, which means that the restriction must not go so far that nothing remains of the essence of a basic right and this runs empty.
There are essentially three possible types of bounds:
- Constitutional barriers - the Basic Law restricts the scope of the protection area of the fundamental right, whereby at the same time the possibility of intervention may be given, insofar as the exercise of another fundamental right - for example the general freedom of action - exists beyond the protection area of one fundamental right; z. B. Art. 8 GG, ("peacefully and without weapons")
- Legal reservation barrier - the right may be interfered with on the basis of another law; z. B. Art. 10 para. 2 sentence 1 GG
- Constitutional barrier - results from the essence of a law (e.g. Article 2, Paragraph 1 of the Basic Law). If someone behaves in his free development in such a way that he restricts others, his own exercise of the fundamental right can be restricted.
The threefold barrier of Article 2, Paragraph 1 of the Basic Law is called the barrier triad.
example
The owner of a thing may be, unless there are the law or third party rights (barrier), proceed with the matter at will and exclude others from any action, § 903 BGB . For example, the owner of a tennis court can use his facility day and night as long as he does not disturb anyone. However, following a complaint from residents, a court should not completely prohibit its use. This would make the property worthless. Rather, the court is bound by the barrier, which states that the interference with the property must be as small as possible. For example, it would be appropriate to have the space only used during the day and to respect general quiet times.
See also
Individual evidence
- ↑ Konrad Hesse : Basic features of the constitutional law of the Federal Republic of Germany , 20th edition, Heidelberg 1995, no. 332
