Self-help (law)

Self-help is the enforcement or securing of the (supposed) law "on your own".

(Pure) self-help is a primitive form of law enforcement:

There is no instance that distinguishes the true entitled person from the erroneous or presumptuous person entitled.
An objectively entitled person does not always have the power to enforce his law.
It usually does not lead to legal peace .

If there is no higher authority, if it is unjust, partial or ineffective, especially too slow, or if the underlying legal system appears to be illegal, speaks in favor of self-help. The constitutional state tries not to allow demands for self-help to arise in the first place or at least to avert them as accepting them for the sake of legal peace.

The permissibility of self-help depends on the one hand on the existence of central court and coercive instances. The right of states to self-help under international law is much more extensive than the self-help right of private individuals in constitutional states.

The question of the right to self-help also arises within individual legal systems. If these are unjust or are perceived as such, a right to self-help is asserted. For example the right to strike as a self-help of workers or - fictionally illustrated - in the figure of Michael Kohlhaas .

Private self-help endangers legal peace. In order to prevent them, the state has a monopoly on the use of force in modern states . But that's only the negative side. On the positive side, a state must guarantee functioning, effective state legal protection (cf. right to justice ).

In modern countries, self-help is therefore generally prohibited. The constitutionally guaranteed right to strike in Germany is a special case. Only in rare exceptional cases can a person enforce their own claim. Where it is approved, this only happens under strict conditions, compliance with which is controlled by the state.

In private law, self-help means private foreclosure . The right to self-help is at the same time a reason for justification , i.e. it leads to the legality of private law enforcement so that neither criminal nor civil law sanctions apply. However, this presupposes that the requirements and the limits of the right to self-help are observed.

Germany

Self-help is generally prohibited in Germany. Exceptionally permitted self-enforcement options ( vigilante justice ) are regulated in the German Civil Code (BGB) :

§ 229 BGB - self-help

Self-help according to § 229 , § 230 BGB is exceptionally permissible if “official help” cannot be obtained in good time and without immediate intervention there is at least the risk of making the realization of one's own claim more difficult . If there are other means of security, self-help is excluded, e.g. B. if due to a payment claim it would be possible to obtain an attachment title with subsequent security enforcement ( § 916 , § 917 , § 922 Paragraph 1, § 930 Paragraph 1 ZPO ). If self-help was permissible in the example, the obtaining of a real arrest would have to be made up for, as it was only omitted for reasons of time ( Section 230 (2) BGB).

Self-help files in the BGB:

Section 562b BGB - landlord's lien
§ 592 BGB - Leaseholder Lien
§ 704 BGB - Innkeeper Lien
§ 859 and § 860 BGB - Self-help of the owner / servant
Section 910 BGB - Self-help by the property owner in the event of overhang
Section 962 BGB - Pursuit of a swarm of bees by the owner

Self-help is only to be exercised within the framework of proportionality; it must not go further than necessary to avert the danger (cf. § 230 BGB: Limits to self-help). In order to make the extensive self-help rights bearable for the victim, they are often accompanied by a strict liability for erroneous exercise. Whoever assumes mistakenly that there was a case of self-help before, liable in deviation from the otherwise prevailing principle of fault fault un -dependent, so "even if the error is not due to negligence," § 231 BGB (see. Strict liability ).

Austria

Self-help is regulated in § 344 ABGB :

The rights of property also include the right to protect oneself in one's possession and, in the event that judicial assistance would come too late, to abort violence with appropriate violence (§ 19). Incidentally, the political authority has to ensure the maintenance of public calm, just as the criminal court has to ensure the punishment of official acts of violence.

literature

Michael Duchstein: Die Selbsthilfe , JuS 2015, pp. 105–109.
Stefan Klingbeil: The emergency and self-help rights: A dogmatic reconstruction , Tübingen: Mohr Siebeck, 2017, ISBN 978-3-16-155533-6
Wolfgang B. Schünemann : Self-help in the legal system. A dogmatic study using the example of §§ 227, 229 ff. BGB , Tübingen: Mohr Siebeck, 1999, ISBN 3-16-644980-9

Individual evidence

↑ After Reinhold Zippelius : Introduction to Law. 7th edition. Mohr Siebeck, Tübingen 2017 (utb; 2175), ISBN 978-3-8252-4795-9 , p. 15 f.
↑ See Hensche, in: Däubler / Hjort / Schubert / Wolmerath, Arbeitsrecht, GG, 4th edition 2017, Art. 9 Rn. 13: "So the history of industrialization on the side of the victims was a history of society, of the repeated efforts to overcome social hardship through organized, solidarity self-help and resistance."
↑ Stefan Klingbeil, self-help as private foreclosure , in: Tim Husemann / Robert Korves / Frank Rosenkranz u. a. (Ed.), Structural Change and Private Law, Baden-Baden: Nomos-Verlag, 2019, ISBN 978-3-8487-5494-6 , pp. 185 ff.

[1] After Reinhold Zippelius : Introduction to Law. 7th edition. Mohr Siebeck, Tübingen 2017 (utb; 2175), ISBN 978-3-8252-4795-9 , p. 15 f.

[2] See Hensche, in: Däubler / Hjort / Schubert / Wolmerath, Arbeitsrecht, GG, 4th edition 2017, Art. 9 Rn. 13: "So the history of industrialization on the side of the victims was a history of society, of the repeated efforts to overcome social hardship through organized, solidarity self-help and resistance."

[3] Stefan Klingbeil, self-help as private foreclosure , in: Tim Husemann / Robert Korves / Frank Rosenkranz u. a. (Ed.), Structural Change and Private Law, Baden-Baden: Nomos-Verlag, 2019, ISBN 978-3-8487-5494-6 , pp. 185 ff.