Special sacrifice theory

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The special sacrifice theory is a dogmatic principle introduced by the Grand Senate of the Federal Court of Justice in 1952 for compensation jurisdiction . To this day, it is still caught in the tension between civil and constitutional law discussions.

With the special sacrifice theory, the Federal Court of Justice replaced the argumentation of the jurisdiction of the Reichsgericht , which since the 1900s had granted compensation payments even if public intervention lay outside the legally regulated cases of expropriation , but had led to undue hardship for those affected. Although the Federal Court of Justice took the same legal opinion on the obligation to pay compensation, it made a paradigm shift on the question of legal derivation. The Reichsgericht had used the customary right to sacrifice as a basis for claims for compensation and based its decisions on §§ 74, 75 of the Introduction to the Prussian General Land Law ( PrALR ). The Federal Court of Justice (BGH) proceeded differently. He entered the country legal standards Although in its deliberations with a leaning in his core argument but on equality basic criteria, the violation of which he considered to be the essential feature of expropriation. He formulated the granting of compensation payments using the characteristics of the special sacrifice theory created in the process.

The Nassauskiesungsbeschluss the Federal Constitutional Court in 1981 resulted in the following years to a much more restrictive application of the special theory of sacrifice the Bundesgerichtshof.

Special victim theory of the BGH from 1952

History of theory

Starting point: Section 75 PrALR contained the individual's right to sacrifice against the state if the state had to sacrifice its special rights and advantages for the good of the community. The Reichsgericht interpreted the norm with what is widely known as the single act theory . If the individual had to tolerate a sovereign intervention afterwards and if he had made a sacrifice that affected him unequally in relation to others, he had to be compensated. Since this was an exceptional case, the Reichsgericht made it clear that no compensation would be granted if the property restrictions were based on a law, since the sacrifice would then have to be made by everyone ( legal priority ). Controversial disputes with the literature , especially with constitutional lawyer Georg Jellinek , had resulted in the court not only compensating victims for lawful state actions, but also for illegal interventions. The Reichsgericht also applied the PrALR's compensation rules to territories outside Prussia after it had determined that the Rhenish provinces had no legal basis for a claim for compensation and that Article 545 of the Civil Code, which was once applicable there, had been repealed.

The III. Civil Senate of the Federal Court of Justice, which has been responsible since 1950, fundamentally took up the case law of the Reich Court and submitted a resolution to the special adjudication body of the court (Grand Senate), which concerned illegal measures of forced housing management under water management law after the Second World War . The subject of the dispute was the question of compensation payments due to the loss of rent. Expropriation within the meaning of Art. 14 3 para. GG was not available. The BGH, however, postponed the question of a dogmatically secured legal basis and formulated a concept of expropriation that should do justice to the young republic: on the one hand, it should conceptually fit into the historically evolved overall context, on the other hand, the changed needs of the present, which were shaped by numerous state interventions, should be were, reflected in it and contemporary.

Against this background, the great senate of the highest civil court developed the so-called special sacrifice theory . As a civil court, the BGH naturally used the private law property protection according to § 903 BGB as a starting point and examined it in the constitutional dimensions of Art. 14 GG. He based himself on the “victim idea” of the Reichsgericht, but broke away from its individual act theory by no longer focusing on the individual intervention, but declaring the underlying law to be decisive. Characteristic for expropriation was an encroachment on property , which affects the person affected unequally and particularly compared to others and forces the person concerned to make a special sacrifice for the general public that was not expected of the other. This rather formal diction of demarcation aimed at the principle of equality, the evident violation of which leads to expropriation and therefore leads to a special sacrifice and consequently has to be compensated.

Description of the term expropriation

The Federal Court of Justice formulated the concept of expropriation on which the special sacrifice theory is based as follows:

“Expropriation is not a general and equivalent determination and limitation of the right of property that is compatible with the nature of the law concerned, but a legally permissible, compulsory state intervention in property, be it in the form of deprivation or encumbrance that affects the affected individuals or groups unequally and particularly in comparison to others and forces them to make a special sacrifice for the general public that is not expected of others, namely a sacrifice that does not understand the content and the limits of the legal genre concerned in general and uniformly stipulate, but that from the circle of legal entities, individual or groups of them are particularly affected in violation of the principle of equality. The violation of the principle of equality marks expropriation. (...) "

- BGHZ 6, 270 (278/9), 1952

The material characteristics of the definition are based on the fact that the violation of the principle of equality can only be compensated if the expropriation provided for compensation in the form of compensation. At the same time, in this definition of expropriation, there is a demarcation between the determination of the content of property without compensation through the social commitment of Art. 14, Paragraph 1, Clause 2, Paragraph 2 of the Basic Law and an excess of content that is subject to compensation and which burdens the individual unequally.

Modified special sacrifice theory

Expropriation-equivalent and expropriating intervention

With the underlying decision, the legal institution of expropriation-like interference came into play for the first time . The BGH considered an illegal administrative act due to incorrect application of the law as a "removal" from the legal basis. He did not (yet) have to deal with the case of sacrifice on the basis of legal action, the expropriating interference, so that conceptually it did not yet exist.

That changed in the period that followed, because the BGH increasingly had to deal with cases of legitimate sovereign measures that led to atypical and unforeseen disadvantages for the owner and repeatedly exceeded the threshold of what was reasonable. The BGH summarized their compensation under the term expropriating interference . He applied the idea of ​​special sacrifices, for example, to the case of the commissioning of a newly built river bridge, which - taken on its own - was lawful, but led to the expropriation of a ferry operator because the customer subsequently stayed away. Other well-known cases were the nature conservation law "Buchendom case", furthermore a case of interference with hunting by troop maneuvers or cases of disruption due to the operation of a motorway or an airport. In these cases of compensation for special victims, the BGH had to resolve the problem that the large Senate had only decided on the case of an illegal, but not lawful, encroachment on property and a clear demarcation against the social commitment of Art. 14 Paragraph 1 Sentence 2, Abs. 2 GG was more difficult.

Situation-related theory

The BGH made do with the fact that it supplemented the special sacrifice theory with the criterion of "situation-relatedness" . He stated: “Due to its nature”, real estate is “burdened” with an obligation due to its location and design, which defines the legal limitation as a definition of the content of real estate. Such content provisions contain a legal obligation within the legal freedom, which intrinsically substantiate the property and which inevitably shorten the scope of the special sacrifice. This can be derived from the actual situation in which the property is located (situation-specific). This also applies to the increasing number of disputes relating to “immission law” , obstacles and restrictions that are primarily triggered by noise and odor nuisance. Emission law cases of official acts were examined in the light of § 906 BGB to determine whether annoyance and disruptive side effects exceptionally overstrain the owner's obligation to tolerate and even as merely factual consequences of sovereign acts are likely to trigger illegality of public law acts; Interventions equivalent to expropriation would then come into play. Severity, scope and, in particular, reasonableness are also weighty criteria for the application of the special sacrifice theory in its modified version. The literature always countered that § 906 BGB dogmatically did not fall into the category landscape of the legality review of administrative acts and at best was suitable as a yardstick for the special sacrifice to be determined .

Gravity theory of the Federal Administrative Court

The Federal Administrative Court (BVerwG) chose a different approach . His theory of gravity follows material criteria in consistent case law . According to this, expropriation is characterized by the particular severity and scope of the encroachment. In contrast to the modified special victim theory of the BGH, gravity and scope are not judged on the basis of the characteristic of the special victim, but rather in the material moment of the administrative intervention ( proportionality ).

Wet gravel decision of the Federal Constitutional Court (1981)

Criticism of the inadequate derivation of legal bases

Since the BGH did not dogmatically properly support or specify its legal dogmatics of compensation law on the expropriation-like and expropriating interventions, rather it left the problem aside in order instead to come to valid results through an isolated consideration of the special sacrifice idea, the Federal Constitutional Court felt on the Plan called when it had to negotiate the famous wet gravel case . The court criticized the fact that the BGH did not pay sufficient attention to the central aspect, namely the argumentation of a suitable basis for the awarded claims for compensation, and that the judgments displayed a dogmatic reluctance that made its case law on the subject questionable. Even the 1952 decision of the large Senate did not deal with the topic of customary or judicial claims bases very productively, and an appeal to Art. 153 WRV and Art. 14 GG did not hide the fact that a legal basis could not be identified. In the case of forced housing allocation to be negotiated, which had been officially decided before the Basic Law came into force, it had not been worked out on which claim basis the BGH was based. The BVerfG complained that the supposedly continuing binding effect of customary law, as introduced by the Reichsgericht via §§ 74, 75 PrALR, was poor in argumentation power by the BGH, by switching to the constitutional principle of equality, because ultimately both legal bases were inadmissibly linked be. A right to sacrifice would therefore arise neither from customary law nor from the constitutional principle of equality. Art. 14 GG was also only applied analogously, without any specific justification for the circumstance (Art. 14 GG analogously). In the case of an encroachment equivalent to expropriation, a claim for compensation cannot even be directly derived from Article 14.3 of the Basic Law.

The BVerfG specified the concept of expropriation as follows: There must be a targeted sovereign intervention in the property of an individual through which a concrete legal position within the meaning of Article 14.1 sentence 1 GG is completely or at least partially withdrawn, in the interest of the general public . The main statements of the court with regard to the case law of the BGH are: There is no compensation without a law . And: If there is no basis for a claim, the administrative legal route must be taken.

Reaction of the Federal Court of Justice

From then on, the BGH moved the question of the appropriate legal basis into the center of efforts and drastically curtailed property protection. He expressly defined the basis for claims for encroachments on assets (material) and non-assets (immaterial) legal positions. In doing so, he set the principles of expropriating and expropriation-equivalent interference from Article 14 of the Basic Law, to which he expressly adhered, with the reservation that only material rights were impaired. He shortened the scope of Sections 74, 75 PrALR to impairments of immaterial legal interests, such as life, health, freedom and vaccination damage.

As early as 1983, the BVerfG's strict “referral requirement” to administrative legal channels at the BGH had already been internalized. From then on, the owner affected by government intervention was referred to the assertion of primary legal protection , which made the principle of “ tolerate and liquidate ” obsolete. In 1984 the BGH succeeded in checking the obligation of the owner concerned to cooperate as required by the BVerfG, namely (reasonable for him) whether the administrative act directed against him was unlawful, in the event of failure to be qualified as a case of contributory negligence according to § 254 BGB and then to deny claims for compensation, if the incurred disadvantages could have been eliminated by an action for avoidance. Conversely, this also meant that the unacceptability of taking the administrative legal route did not justify contributory negligence. Since 1984, when selecting the basis for the claim, the BGH also came to the conclusion that the “concept of sacrifice in its judicial form” was sufficient for this. In 1987 the BGH eliminated so-called legislative injustice from the compensation case law.

Dogmatic approaches in retrospect (summary)

As a result, it remains unclear to this day on which legal basis the special sacrifice theory is based.

Since the decision of the Grand Senate in 1952, the Federal Court of Justice had argued the compensation jurisprudence on Article 14 of the Basic Law (direct or analogue) for the first almost three decades. Since the Federal Constitutional Court's decision on wet pebbles in 1981, he has sought the "idea of ​​sacrifice in its judicial form" and justified the dogmatic weakness of the lack of a validity even through the judicial component, which, however, induced him to restrict the protection of property ( legislative injustice , primary legal protection ).

On the part of the literature, the basis for claims is often seen in customary law, the content of which is based on §§ 74, 75 PrALR and the principle of sacrifice of the Reichsgericht and was adopted by the Federal Court of Justice. There is no loophole in Article 14 of the Basic Law because the requirements of customary law are met. Since the Federal Court of Justice had always judged the matter according to the principles of sacrifice in the form of the special sacrifice theory, it had used a sufficient source of law that allowed a closed dogmatics by raising the level of abstraction. In particular, the essence of the special sacrifice theory illustrates the practical meaning of dogmatics.

literature

  • Elke Herrmann : Property and sacrifice “for the good of the common being”. In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 601-635.
  • Peter Krumbiegel: The concept of special sacrifice in the case law of the Federal Court of Justice. Duncker & Humblot, Berlin 1975, ISBN 3-428-03477-5 .
  • Joachim Lege : 30 years of wet gravel - How the BVerfG has revolutionized the dogmatics of the fundamental right to property from Art. 14 GG. In: JuristenZeitung . ISSN  0022-6882 , issue 22, 2011, pp. 1084-1091.
  • Fritz Ossenbühl : State liability law. 5th edition. CH Beck, Munich 1998, ISBN 3-406-41809-0 , § 12, 1.
  • Franz-Joseph Peine : Content and limits of property. The design guarantee and the restriction of land use. In: Wolfgang Durner , Franz-Joseph Peine, Foroud Shirvani (eds.): Freedom and security in Germany and Europe. Festschrift for Hans-Jürgen Papier on his 70th birthday. (= Publications on Public Law. Volume 1238). Duncker & Humblot, Berlin 2013, ISBN 978-3-428-13840-1 , pp. 587-605 (599 ff.).
  • Wolfgang Rüfner : expropriation and sacrifice. In: Hans-Uwe Erichsen : General administrative law. 10th edition. 1995, § 49.
  • Hans Hermann Seiler : Legal dogmatics and legal policy, Hamburg lecture series. In: Karsten Schmidt (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1990, p. 109 ff.
  • Hans Hermann Seiler: In: Staudinger Commentary on the Civil Code. Third book: property law. 13th edition, 1996, preliminary remarks on § 903 ff., No. 18 ff, 35 ff., 44.

Remarks

  1. ^ A b c Hans Hermann Seiler In: Staudinger's commentary on the civil code. Third book: property law. 1996, preliminary remarks on §§ 903 ff .; No. 18 ff, 35 ff; 44.
  2. ↑ RGZ 64, 183 (185–187), background: the plaintiff is bricked up under the road structure as a cellar cavity / 1906; RGZ 118, 22 (25 f.), Background: the plaintiff is denied a seized church seat right by an episcopal order / 1927.
  3. ↑ Since the Prussian General Land Law (PrALR) was subject to territorial application restrictions, the question of whether it can actually have been a matter of customary law and not rather of judicial law is now mainly discussed under the second aspect.
  4. ↑ BVerfGE 58, 300
  5. ↑ RGZ 64, 183 (185-187); 118, 22 (25 f.); RGZ 129 146 (149); RGZ 137, 163 (170); RGZ 139, 177 (188); RGZ 140, 276 (282).
  6. ↑ RGZ 140, 276 (281–285): For the claim for compensation from the forced sacrifice of rights in favor of the general public, it is irrelevant whether the competent authority was guided by appropriate considerations when intervening, or whether it was guided by its statutory ones Powers found in error.
  7. ↑ a b c Elke Herrmann : Ownership and sacrifice "for the good of the common being". In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 601 ff. (605-614).
  8. ↑ Reiner Schulze : Prussian general land law and Rhenish-French law. In: Barbara Dölemeyer, Heinz Mohnhaupt (Hrsg.): 200 years of general land law for the Prussian states. (= Studies on European Legal History. 75). 1995, pp. 387 ff and 397 ff.
  9. ↑ The BGH was established by §§ 12, 123 ff GVG (as amended on September 12, 1950) in implementation of the general regulation of Article 95, Paragraph 1 of the Basic Law (then Article 96 of the Basic Law); he immediately replaced the Supreme Court for the British zone of occupation.
  10. ↑ BGHZ 6, 270 (278/9)
  11. ↑ BGHZ 94, 373.
  12. ↑ The following decisions are listed one after the other: BGH LM No. 60 on Art. 14 GG; BGHZ 112, 392; BGHZ 97, 361; BGH NJW 1995, 1823.
  13. ↑ BGHZ 91, 20 ff. (22-25).
  14. ↑ Jürgen Baur, Rolf Stürner : Textbook of Property Law , 1998, § 12 II 2 with another epilogue; Here it is pointed out that the question of the review of § 906 BGB is already unclear from a civil law perspective.
  15. ↑ BVerwG, judgment of June 27, 1957, Az. IC 3.56, BVerwGE 5, 143, (full text)
  16. ↑ Martin Seuffert: The land consolidation against the background of Art. 14 GG. Dissertation. Centaurus Verlag & Media UG, Würzburg 2010, ISBN 978-3-86226-034-8 , p. 36 f. (on-line)
  17. ↑ a b BVerfGE 58, 300.
  18. ↑ a b c Elke Herrmann: Ownership and sacrifice "for the good of the common being". In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 601 ff. (615-635).
  19. ↑ BGHZ 90, 17 ff. (29-31).
  20. ^ Basically BGHZ 9, 83 (85 f.); BGHZ 13, 88 (90); The legal theory predominantly follows this classification system, cf. about Fritz Ossenbühl : State Liability Law. 5th edition. 1998, § 12.1 .; Wolfgang Rüfner : expropriation and sacrifice. In: Hans-Uwe Erichsen : General administrative law. 10th edition. 1995, § 49, No. 7 ff., 11, 14 .; Brun-Otto Bryde in Ingo von Münch (ed.): Basic Law Commentary , Volume I, 4th edition, 1992, Art. 14 GG, Rnr. 106.
  21. ↑ BGHZ 87, 66 (77 f.).
  22. ↑ BGHZ 90, 17 (31 f.).
  23. ↑ The following decisions have been working with the determination since BGHZ 90, 17 (31): BGHZ 94, 373 (374); BGHZ 97, 114 (117); BGHZ 100, 136 (145); BGHZ 102, 350 (357); BGHZ 111, 349 (352); BGHZ 112, 392 (399); BGHZ 122, 76 (77).
  24. ↑ BGHZ 100, 136 (145–147) (fundamental); see. also: BGHZ 102, 350 (359 and 362).
  25. ^ Hans Hermann Seiler: Legal dogmatics and legal policy, Hamburg lecture series. In: Karsten Schmidt (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1990, p. 109 ff. (111 f.).