Injunction

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The injunction is in the law resulting from the law resulting claim of any interested party on omission of certain unlawful actions of a jammer .

General

According to the Reichsgericht (RG), an injunction is always given if unlawful behavior has already been carried out, further interventions are to be feared and the continuation or completion of the damage committed is to be prevented with a lawsuit . The prerequisite for the emergence of the injunction claim is basically that someone has acted unlawfully. If there is neither deprivation of property nor withholding of property , § 1004 BGB grants the owner a right to removal and injunctive relief against the interferer. The RG classified the injunction in June 1935 as strictly personal right one, which is why, as such, non-negotiable is. An injunction is always excluded if the person concerned is obliged to tolerate .

species

There are legal and contractual injunctive relief. Contractual are the competition law omission explanation , the labor or corporate competition clause contractual secondary requirement as well as the competition clauses of § 60, para. 1 HGB ( shop assistants ) and § 112 HGB ( general partnership ). In the case of a declaration of omission, omission is the main contractual obligation .

Areas of law

The right to cease and desist is an important part of various areas of law , in particular civil law , copyright , trademark , competition law , civil media law and public law .

Civil Law

According to § 903 BGB, the owner of a thing can deal with his property as he likes and exclude others from any influence. If others have an unlawful effect on this, the basis of the civil law injunctive relief can be found in Section 1004 (1) BGB. The impairment of property triggers a claim for removal and injunctive relief ( Latin actio negatoria ), which can be enforced with an action for injunctive relief if there is a risk of repetition.

The Court has already in October 1929 by the RG, the provision of § 1004 BGB over the property to include all absolute rights applied by analogy and beyond to all tort law protected legal interests expanded. Structurally analogous rights are granted by § 12 sentence 2 BGB to the bearer of the name in the case of naming rights , § 541 BGB to the landlord in the event of use by the tenant in violation of the contract and § 862 (1) sentence 2 BGB to the owner in the event of property damage . According to Section 241, Paragraph 1 of the German Civil Code (BGB), performance in the case of contractual obligations can also consist of an omission, such as a declaration of omission under competition law. Under the law of obligations , omission is the obligation of the debtor not to do something specific that he would be entitled to do.

There are further statutory injunctive relief claims in § 910 BGB ( overhang in neighboring law ), § 1027 BGB (impairment of easement ), § 1029 BGB (owner in case of easement), § 1053 BGB and § 1065 BGB (unauthorized use of usufruct ), § 1090 BGB ( limited personal easement ), Section 1134 (1) BGB (threat to the mortgage ), Section 1192 BGB (threat to land charge and security land charge ) or Section 1227 BGB (protection of lien ).

According to the wording of the law (“further” impairment), an unlawful impairment that has already taken place in the past or that still exists should be a prerequisite for the right to cease and desist. However, the case law recognizes a “preventive defense claim” even in cases in which a serious impairment is imminent for the first time if there is serious concern about an initial violation of the law. It is usually imprecisely referred to as a “preventive defense claim”. The serious risk of an imminent first-time impairment can then not be presumed indicatively, but must actually exist.

Anyone who uses clauses in general terms and conditions that are ineffective according to Sections 307 to 309 of the German Civil Code ( BGB ) or recommends them for legal transactions can, in accordance with Section 1 of the UKlaG, be relied on for omission and, in the case of recommendation, also for revocation .

Copyright, patent and trademark law

The claims for injunctive relief in the case of infringement of intellectual property are of great economic importance . With the eigeräumten him right to injunctive relief may the holder , for example against illegal downloads from the Internet ( music , video or movie files , file sharing ) by warning together with cease and desist fight back. The addressees of the norms of the laws protecting intellectual property are not the interferers, but the so-called infringers.

In accordance with Section 97 (1) UrhG, anyone who violates copyright law can be sued by the author to remedy the impairment or, if there is a risk of repetition, to cease and desist. The right to cease and desist also exists if there is a threat of an infringement for the first time. The omission can be recognized by the fact that the infringer will refrain from infringing copyright in the future . Anyone who violates Section 95b (1) UrhG can be sued for injunctive relief in accordance with Section 2a UKlaG.

A comparable cease and desist norm is contained in Section 139 (1 ) PatG for patents , Section 14 MarkenG for trademarks , Section 15 TrademarkG for a business name and Section 24 (1) GebrMG for utility models .

Commercial law

Anyone who is violated in their rights by someone else using a company name without authorization can demand that the company cease to use the company in accordance with Section 37 (2) HGB . In this company law injunction, formal and material company law seem to touch. This is the parallel provision to § 12 BGB for private individuals .

The board of directors is committed to loyalty to the stock corporation . If he violates the general duty of loyalty to the company , he can be called upon to cease and desist. Special forms of the duty of loyalty are the non-competition clause ( § 88 AktG) and the duty of confidentiality ( § 93 para. 1 AktG).

Competition law

According to § 3 UWG , unfair business actions are not permitted; Section 5a of the UWG deals with misleading by omission, such as withholding a fact or misleading advertising . In accordance with Section 8 UWG, the infringer can be sued for removal and - if there is a risk of repetition - for omission. In addition to failure to act, unfair competition can also trigger civil law claims for damages ( Section 9 UWG), profit skimming ( Section 10 UWG) or reimbursement of warning costs ( Section 12 (1) UWG).

Media law

In civil media law, the injunction is practically the most important claim . Subsequent monetary compensation makes no sense, especially when reporting in the mass media . The reputation of the person concerned was then irrevocably damaged. Therefore, an attempt is often made in advance to prevent reporting by means of preventive legal protection .

Anyone who is individually affected by an inadmissible statement in media reporting, be it an assertion of facts or an expression of opinion , in their personal rights or a portrait publication can assert the injunction claim . The disturbance must be unlawful so that a violation of a protected legal position is to be feared. Here, the individual rights of the person concerned and the fundamental rights of the person making the statement must be weighed up.

The opponent of the claim is not only the person who makes the statement directly, but also the disseminator of the statement ( disseminator liability ), e.g. B. the publisher , broadcaster , etc. (see press law ).

Depending on the law concerned, a distinction must be made between different offenses:

The claim is based on an overall analogy of § 12 , § 862 , § 1004 BGB. It is a highly personal right that cannot be transferred .

Public law

The public law injunctive relief does not have an independent legal basis , but arises from the fact that a sovereign carries out a public law disruptive act through an administrative act or other administrative action. In public law, claims are therefore mostly based on an analogous application of civil law norms . The right to cease and desist is directed at repetitive sovereign interventions or the defense against threatened interventions. Use cases are, for example, immissions from public facilities due to noise ( bells ringing , playground ) or light (nocturnal street lighting in a community). He can also focus on the defense or the omission of sovereign statements or simple administrative actions, such as the publication of a list of all wines contaminated with diethylene glycol ("glycol") in Germany stating the respective bottlers or public funding of projects against the " Osho movement ” .

The citizen's claim to defense is thus directed against state acts. A prerequisite for a public law injunction is the impending unlawful act of an administrative authority, whereby the claimant's subjective rights are violated. Mainly these are noise or odor nuisance (e.g. from sewage treatment plants ) or government warnings. In terms of its eligibility requirements, it is very similar to the claim for the removal of consequences , with the exception of the feature of possibility / reasonableness. Because failure to do so is always reasonable and possible. It therefore presupposes the impairment of a subjective right through sovereign action and the illegality of this interference.

The claim is derived from individual fundamental rights or by analogy or by using a general legal concept from § 1004 , § 906 BGB. The reasons are not mutually exclusive, but culminate in the recognition that the public-law injunction is now recognized by custom. According to this, a neighbor's claim to defend himself against the noise emanating from a publicly owned sports field is of a public nature and must therefore be asserted before the administrative courts. In each individual case, evaluating elements such as conventionality, social adequacy and general acceptance are to be included in an evaluative overall assessment in the sense of a weighing of interests. In the neighboring dispute under public law, the question of the reasonableness of noises is to be assessed according to the standards of § § 3 Abs. 1 BImSchG and § 22 Abs. 1 BImSchG.

enforcement

All injunctive relief claims can be enforced in civil proceedings by way of injunctive relief after the usually common warning has not provided any remedy. In civil procedural law , omission is inactive behavior that does not influence a certain causal process. The omission occurs in two cases:

  • The debtor can be obliged not to influence a certain course of events by his inaction or
  • the debtor can be obliged to act actively if he maintains and continues to exploit existing impairments.

Accordingly, if the debtor violates the obligation to refrain from an act or to tolerate the performance of an act, he is, in accordance with Section 890, Paragraph 1, of the German Code of Civil Procedure ( ZPO) due to an infringement at the request of the creditor by the trial court to a fine and in the event that this can not be collected, for administrative detention to sentence up to six months. The individual fine may not exceed the amount of 250,000 euros, the amount of regular detention may not exceed two years.

See also

literature

  • Iris Kemmler: Right to Eliminate Consequences, Right to Manufacture and Right to Failure . In: Juristische Arbeitsblätter 2005, pp. 908–911

Individual evidence

  1. ^ RG, judgment of April 11, 1901 = RGZ 48, 114 , 118
  2. ↑ Bernd H. Oppermann, Injury Claim and Material Justice in Competition Process , 1993, p. 17
  3. ↑ RG 148, 147
  4. ↑ Jörg Fritzsche, injunction and injunction , 2000, p. 25
  5. ↑ Marcus Grosch, legal change and legal force in injunctive relief , 2002, p. 35
  6. ^ RG, judgment of October 9, 1929, Az .: I 63/29 = RGZ 125, 391
  7. ^ RG, judgment of January 5, 1905, Az .: VI 38/04 = RGZ 60, 6, 7
  8. ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, § 241 Rn. 4th
  9. ^ BGH, judgment of April 10, 1956, Az .: I ZR 165/54, BGHZ 2,394
  10. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 104.
  11. ^ Administrative law: the public law injunction lecturio of March 6, 2015
  12. ↑ Carola Schulze, The right of public substitute services , 2008, p. 162
  13. ↑ BVerwGE 90, 163
  14. ↑ BVerwG NVwZ 1997, 390, 391
  15. ^ VG Munich, judgment of November 28, 2018 - M 19 K 17.4863
  16. ↑ BVerwG, judgment of October 18, 1990 - 3 C 2.88
  17. ↑ BVerwG, judgment of March 27, 1992, Az .: 7 C 21/90
  18. ^ VG Würzburg, judgment of December 11, 2017 - W 8 K 17.540
  19. ↑ BVerwGE 81, 197
  20. ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1353