usurpation
As usurpation ( Latin usurpatio , use '; usurpare "take possession", "illegally power usurp") is in the newer usage, the presumption of ownership, an authority especially designated public authority - ie, in particular the violent repression of a legitimate ruler, the overthrow of the constitution and the suppression of the independence of a state by a usurper .
The usurpation of power
In the historical-political context, we usually speak of usurpation if the previously legitimate ruler is still alive and in office at the time the competitor is raised. So there is always a conflict between the previous ruler and his challenger, who often has the features of a civil war .
The concept of usurpation is associated with the notion of a lack of legitimacy . The usurpation can, however, subsequently acquire a legitimate character if the previous ruler who has been defeated by the usurper or an authorized body subsequently approves it or the people accept the new ruler. But even without such legitimation, state acts of usurped power are initially valid, because the authority to exercise state power is not linked to the lawful use, but to the actual possession of state power.
Since there are no generally applicable criteria for a clear distinction between usurped and legitimate power, often only the outcome of the power struggle decides who is counted as a usurper. For example, the Roman emperor Diocletian began as a usurper in 284, but was able to prevail against his rival Carinus and was therefore considered a legitimate ruler from 285. After his elevation to emperor in 306, Constantine the Great also prevailed as sole ruler in a lengthy battle across the empire. A successful usurper can thus become a legitimate ruler as soon as his opponents are eliminated. The formal recognition of his rule is then of course legally significant, but is usually only a direct consequence of the real power relations.
In late antiquity , the expression " tyrann " (Greek τύραννος týrannos, Latin tyrannus ) ( derived from the originally non-judgmental term tyranny for sole power ) was used to denote a usurper or counter-emperor .
civil right
German law knows the "usurpation theory". According to Section 1004, Paragraph 1, Sentence 1 of the German Civil Code, the owner can demand that the interferer “remove the impairment”. A part of the literature thinks that the claim from § 1004 BGB, contrary to the tortious claims from §§ 823 ff. , §§ 249 ff. BGB, cannot give a complete restoration. That is evident from the wording of the provision. The claimant, on the other hand, can only demand the interferer's withdrawal from the foreign legal system (Neuner JuS 2005, 385, 391). The case law, on the other hand, follows the "restoration theory" and sees a partial overlap between the tortious restitution in kind and the legal consequence from § 1004 BGB. A moderate restoration of usability is therefore also owed (BGH NJW 2004, 603, BGH V ZR 142/04). In this respect, there is a partial overlap with the fault-based claim for damages according to § 823 BGB.
literature
- Egon Flaig : Challenge the emperor. The usurpation in the Roman Empire (= historical studies. Vol. 7). Campus-Verlag, Frankfurt am Main et al. 1992, ISBN 3-593-34639-7 .
- Adrastos Omissi: Emperors and Usurpers in the Later Roman Empire. Civil War, Panegyric, and the Construction of Legitimacy ( Oxford Studies in Byzantium ). Oxford University Press, Oxford 2018, ISBN 978-0-19-882482-4 .
- François Paschoud , Joachim Szidat (Hrsg.): Usurpationen in der Spätantike (= Historia. Individual writings. Issue 111). [Colloquium: "Coup d'état and statehood", Solothurn, 6. – 10. March 1996]. Steiner, Stuttgart 1997, ISBN 3-515-07030-3 (German / French / Italian).
- Joachim Szidat: Usurpations in the Roman Empire. Meaning, reasons, countermeasures. In: Heinz E. Herzig , Regula Frei-Stolba (Ed.): Labor omnibus unus. Gerold Walser on his 70th birthday (= Historia. Individual fonts. Issue 60). Steiner, Stuttgart 1989, ISBN 3-515-04393-4 , pp. 232-243.
