Protection Act

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According to the constant jurisprudence of the BGH , the Protection Act is a legal norm which - in addition to protecting the general public - is intended to protect the individual natural person or group of people against the culpable violation of a legal asset.

General

The term protection law does not designate a single law, but the liability for damages resulting from the tort law of § 823 Paragraph 2 BGB , which affects someone who violates a legal provision intended to protect someone else. There is a multitude of provisions in various laws that have the character of a protective law. The legislature must provide this legal protection when the law is passedwanted or wanted to. A protective law does not exist, however, if a standard primarily has the general interest in mind, but also protects the interests of the individual or the indirect protection of the individual is merely a reflex effect of the law.

Legal norms as protection law

Protection Act within the meaning of Section 823 (2) of the German Civil Code (BGB) is a legal norm that not only protects the general public in terms of purpose and content, but also at least serves to protect the individual against the violation of a certain legal interest. The scope of application is expressly limited to the violation of such laws which “aim to protect another” (Section 823 (2) sentence 1 BGB).

A protection law has to meet three requirements:

  • Substantive law : within the meaning of Art. 2 EGBGB, every legal norm, i.e. laws , ordinances , statutes and customary law ;
  • Prohibition and mandatory norm : the material law must represent a prohibitive and mandatory norm ;
  • Protection of another : the prohibition and mandatory standard must aim to protect another and provide for an obligation to pay damages with his personal and material protection.

The jurisprudence has identified a large number of regulations that apply as protection law. First and foremost, criminal provisions come into consideration as protective laws, provided that they protect private interests and not only aim at public order . These include individual provisions of the Criminal Code (e.g. § § 223 StGB ( bodily harm ), § 229 StGB (negligent bodily harm), § 263 StGB ( fraud ), § 264a StGB ( capital investment fraud ), § 266 StGB ( breach of trust ), § 323c StGB ( omitted assistance ; obstruction of assisting people), penal provisions in the HGB (about § 331 HGB; misrepresentation) stock Corporation Act (§ § 399 false statements), or certain provisions of the; ff. AktG Highway Code z (eg. § 3 StVO, road speed ) ). These penal provisions or mandatory / prohibitive norms ultimately result in a corresponding civil liability via Section 823 (2) BGB. The argumentation of the BGH from May 2013 becomes clear in the interpretation of § 323c StGB. He was of the opinion here that the fact of failure to provide assistance according to Section 323c of the Criminal Code should, on the one hand, protect a functioning community based on solidarity in the general interest. On the other hand, the individual legal interests of the individual in need also belonged to the protected interests; § 323c StGB is therefore a protective law within the meaning of § 823 Paragraph 2 BGB. The prohibitions of state aid under European law also fulfill the character of a protective law, because according to Art. 107 TFEU , state aid that distorts competition by favoring certain companies is incompatible with the internal market and fundamentally inadmissible. However, the rules of conduct of the WpHG such as those of Section 32 (2) No. 1 WpHG (old version) in the case of errors in advice by investment advisors or in criminal law falsification of documents ( Section 267 of the Criminal Code) are not protective laws .

Legal consequences

A prerequisite for a claim for damages according to § 823 Abs. 2 BGB is always that the injuring party has illegally and culpably violated a protective law and the specific damage has arisen from the violation of a legal interest, for the protection of which the legal norm was issued. In addition, the injured party must belong to the protected group of people and the damage caused must be covered by the Protection Act. If a protective law is violated by a damaging party , he is obliged to pay damages in favor of the injured party. For example, if someone is harmed by fraud, the fraud offense is first punished by punishing the fraudster. The dupe, in a second, civil procedure then suffered property damage (2 BGB § 823 para. In connection with § 263 of the Criminal Code) make claims against the fraudster, because the latter has violated the Protection Act of § 263 of the Criminal Code.

Individual evidence

  1. ↑ BGHZ 122, 1, 3 f. ( Memento of the original from July 18, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  2. ↑ Alexander Heligardt, Kapitalmarktdeliktsrecht , 2008, p. 47.
  3. ↑ BGHZ 89, 383, 401: breach of the peace
  4. ↑ a b Volker Emmerich, BGB-Schuldrecht, special part , 2009, p. 330 f.
  5. ↑ Petra Buck-Heeb, Examens-Repetitorium special law of obligations 2 , 2012, p. 113.
  6. ^ BGH, judgment of May 14, 2013, Az .: VI ZR 255/11
  7. ^ BGH, judgments of February 10, 2011, Az .: I ZR 136/09 (Frankfurt-Hahn Airport) and I ZR 213/08 (Lübeck Airport)
  8. ↑ BGHZ 19, 114, 125 f .; BGHZ 27, 137, 143; BGHZ 39, 366, 367 f.