Public property

from Wikipedia, the free encyclopedia

Public property is a special form of property that can be found in socialist legal systems with a dichotomous concept of property. The concept of public property is sometimes viewed as misleading because neither the people are the owners of public property, nor the people as a whole (“everyone”), but only individual entrusted persons have the right to use publicly owned property.

People's property (in the broader non-socialist sense) is sometimes also referred to as things that cannot be privately owned at all (air to breathe, sunlight, wind, etc.) or that are beyond legal traffic. So must in Brazil or Tunisia for. B. the beach is not built or used by a hotel alone. In earlier times the common land “belonged” to the village people, so that they could bring their cattle to pasture there without the poor farmers having to pay the rich farmers or the church for it. A similar understanding prevailed among the Indians of North America, who did not have any private property ownership (see History of the First Nations # Basic Cultural Misunderstandings ).

Meaning and purpose of public property

Economically, public property differs from conventional public property, which the public hand can establish in terms of means of production , forests, beaches, seas, roads, schools, hospitals, etc., in that in public property the public hand does not or does not want to use the property itself in the first place wants to exclude this from private use at all, but by granting rights of use to citizens and businesses strives for external management within the limits specified by law, award act or by a planning agency (so-called allocation of social use). In order to secure the uses made by the citizens and businesses, often not only mandatory usage conditions are stipulated for external management, but real usage rights are granted, which embody the entire economic value of the property and economically take the place of private property. Due to their poor marketability and the prescribed manner of use, these rights of use to properties corresponded to more state fiefs than real rights within the meaning of the BGB . In order to underline the investment protection , the right to the structures or plantings built on the basis of the right of use by the citizen or the company does not accrue to the public sector. Rather, the beneficial owner then acquires separate property (building ownership), although such systems or plantings are connected to the property. The public sector is usually neither allowed to sell the property to private individuals nor encumber it with mortgage liens in favor of private individuals.

The encumbrance of public property with real rights of use, building or planting with third-party property, and the ban on sale and lending completely undermine the intrinsic economic value of public property. Rather, the economic value of the property is reflected in the real right of use and the building ownership, which economically takes the place of the property. The motivation for establishing public property arose from the ideological conviction of communism , which regards private ownership of the means of production as the basis of exploitation and rejects it.

In terms of the legal construction (not of the economic function), public property is strongly based on feudal law , the law of ancestral estates and family entails .

In the DDR

Public property in companies and schools in the GDR was identified by such a sticker with an inventory number.

In the 1980s, around 98 percent of the GDR's total productive assets were state-owned, including around 8,000 state- owned enterprises (VEB) and combines. In the GDR, natural resources, mines, bodies of water, natural resources, power plants, banks, insurance companies, means of transport, traffic routes, aviation, shipping, postal and telecommunications and all industrial companies were completely transferred to public property in this sense. 50% of the properties were publicly owned. There were also other areas, often used for agriculture, which were the subject of other socialist property.

Emergence

For the emergence of public property in the GDR, the following case groups are to be distinguished:

  • Assets confiscated by the SMAD in the Soviet occupation zone from people who were then judged to be National Socialists and war criminals or who were considered to be large landowners (mostly over 100 hectares) were made public property in Saxony by referendum , in other countries and Berlin by analogous laws .
  • Public property that belonged to municipalities, counties and states was assigned to public property.
  • Nationally owned assets resulted from ongoing economic activity.
  • Natural wealth was defined as public property.
  • The assets of refugees from the GDR were confiscated unless they were sold to third parties by government agencies.
  • Subsequent expropriations of medium-sized companies and private shares were initially carried out through compulsory state participation, with which the state secured a majority, and then forced out the previous owners . The basis for the withdrawal of company assets was a resolution of the Council of Ministers of the GDR on July 9, 1972.
  • Cold expropriations. Frequent cases were that owners of apartment buildings were no longer able to earn rent that covered their costs as a result of the state rent control and therefore had to surrender the property to the state;
  • Unfair machinations in which the previous owner only apparently voluntarily gave up his property positions by applying compulsory will.
  • Things and real estate were also made public property through purchase.

By the time the GDR was founded in 1949, around half of all means of production had already been transferred to popular and common property. The spokesman for the “Office for the Protection of Public Property” in the Saxon state parliament appeared in March 1949

“Not convinced that people have already grown fond of public property, that they are beginning to protect it. [...] One of the biggest factors for damage that occurs in the state-owned enterprises is the negligence of the people [...], in the great distance that they still have today compared to public property. "

In September 1952 the Politburo of the SED passed the “Law for the Protection of Public Property and Other Social Property” VESchG. It went through the People's Chamber by acclamation and came into force on October 6, 1952. Violation of the law (such as “theft, embezzlement or other removal of state and cooperative property or the property of social organizations”) could result in prison sentences of up to 25 years. The courts practiced a minimum sentence of one year in prison, even for minor offenses. The text of the law was even put in the wage bags of the workers . A year later, Attorney General Ernst Melsheimer presented his “success statistics” - an increase in the number of cases from 218 to 2391 and the number of people involved from 283 to 3572 in just six months (see graphic above). GDR Justice Minister Max Fechner ensured that the convicts were immediately transferred to prison:

"This applies in particular to the rapid implementation of criminal proceedings in the case of crimes under the VESchG, which contribute significantly to increasing the educational and deterrent effect of the law through rapid punishment and to developing the awareness of the inviolability of public property among our working people."

Legal characteristics of public property

In the GDR, public property was a form of state property with a special content . Official owners were all people. Together with the cooperative property and the property of social organizations, it formed socialist property. In the legal area of ​​the GDR, personal property was introduced alongside socialist property. The dichotomous property law of the GDR stood in contrast to the uniform concept of property in the BGB of the German Empire and the Federal Republic of Germany . The epitome of things that could be suitable objects of public property was broader than according to the concept of property in the BGB. Public property could exist in terms of property (real estate, property), rights and other objects (e.g. businesses).

use

The legal power to use, process, transform, destroy, sell, encumber and the like was severely restricted by law. The public property could only be used according to state plans. Because the state could not make sensible use of public property on its own, it had to grant third parties rights of use: The use of public property was primarily granted to publicly owned companies, combines , governing bodies, socialist cooperatives and social organizations as well as citizens.

Use by citizens

The rulers of the GDR saw it as sensible to use private initiative to create more homes and the like and to better satisfy the need for recreation of the working people . The GDR therefore provided the citizens with rights to state-owned land for specific, precisely prescribed uses: by granting the state a right of use for the construction and personal use of their own homes; by means of a usage contract for the management of land not used for forestry and agriculture for gardening purposes, for recreation and leisure activities. At times rights of use could only be granted to certain social classes: according to the ordinance on the financing of workers' housing construction of March 4, 1954, z. B. can only be awarded to blue-collar workers.

The difficulty was that the citizen would not have had any economic interest in investing in state-owned land from his or her personal assets (equity), because the added value of the land would have been the sole responsibility of the state as the owner. Such investment protection is very easy to guarantee through private ownership of land, which the GDR tried to avoid for ideological reasons. The legal solution was found in the building ownership. The buildings, facilities and plantings (not the property itself) erected on the state-owned property, which was lent for the construction of a home, were the personal property of the person entitled to use it (Section 288 (4 ) ZGB-GDR ). A separate building land register sheet was created for the announcement of building ownership. Weekend houses and other buildings that served the recreation, leisure activities or similar personal needs of the citizens and were built in the exercise of a contractually agreed right of use were also the property of the beneficial owner, regardless of the ownership of the land, unless otherwise agreed (Section 296 (1) ZGB-DDR). For weekend houses and other buildings, however, no public register was kept. The division of the economic unit “built-up property” into several components, each of which was separately subject to special law, led to a separation of property into “superior property” and “usable property”. This was all the more true as the right to use state-owned land for home use was granted for an indefinite period and ownership fell apart permanently.

Ownership of the building could be sold and inherited with government approval. Sales were only permitted to people who had not yet owned a home. At times, the right of inheritance to property was limited: According to the law on the granting of rights of use to state-owned land of December 14, 1970, the right of use could only be bequeathed to someone who did not own another home and wanted to use the home for personal residential purposes and was a GDR citizen (Section 5 (2) NRG). Ownership of buildings, facilities and plantings could be encumbered with mortgages (Section 452, Paragraph 1, Sentence 2 of the ZGB-GDR).

In the event of improper use, the responsible state body was able to withdraw the right of use, with the result that the citizen's ownership of buildings, facilities and plantings was returned to public ownership.

Because public property no longer comprised a planned usage power due to the granting of the right of use to the citizen, but disposals were also excluded by law, it became an “empty” right on such properties. When, with the introduction of the market economy, public property regained its ability to dispose of it and thus acquired a market value, a balance of interests had to be established between the property owner (former public property) and the building owner and the uniform right to property including its essential components such as buildings had to be re-established ( see section Property law adjustment ).

A very similar institution existed in the granting of rights to use cooperative property for home use.

Use by companies, government bodies and institutions

There was also the possibility that companies, state bodies and institutions contractually used land owned by the state as well as private land that was not expropriated. The buildings and facilities erected within the framework of such a usage contract were public property, regardless of ownership. If significant expansion and maintenance measures had been carried out on contractually used properties, there was a publicly owned co-ownership share in accordance with the increase in value (Section 459 (1) ZGB-GDR).

These regulations applied accordingly to use by socialist cooperatives and social organizations.

Dispositions

Public property was inalienable; in particular, it was not possible to convert public property into personal property. It was not loanable and could not be encumbered in any other way. It was criminally protected in a special way . The idea behind public property was that socially useful things, above all means of production and infrastructure facilities, should not serve the benefit of individuals, but the common good.

Criticism of public property

The public property had no circulation due to its unavailability. Because public property could not be used as collateral, it permanently impaired the creditworthiness of the GDR's economy.

People's property is often accused of only appearing to have been property of the people. Rather, it was an ideologically disguised term for state property . In fact, many people in the GDR did not identify with their public property. Furthermore, control of public property came from the state, which, due to the SED's claim to leadership, was not identical to the entire people. Nevertheless, equating it with state property is not absolutely correct, especially since the latter can be alienable.

The GDR leadership was well aware of the legally questionable situation, so that the public property could not be sold due to the possibility of later claims for restitution or compensation in the course of a German unification that up until the 1960s was considered possible.

During and after the reunification

Public property as a legal form did not appear in federal German law and was not introduced during German reunification . As early as the GDR law of June 17, 1990 (Treuhandgesetz), the people's own assets were to be privatized or transferred to municipalities, districts or states. To this end, the GDR law of June 28 (1st Civil Law Amendment Act) lifted the restrictions on content (ban on seizure and encumbrance, ban on sale). As a result, public property has become conventional state property. A 6th part was added to the EGBGB ( Art. 230 to 237 EGBGB ) through Annex IB (Business Units), Chapter III, Subject B, Section 2, No. 1 of the Unification Agreement, which contains inter-temporary conflict of laws, the purpose of which is to decide which legal positions in the acceding area be judged according to the BGB or GDR law. On the day of joining, the provisions of the BGB applied to property. However, buildings, structures, plants, plantings or facilities in which there was a usage ownership still had special legal status. Even after reunification, property rights could be established in such parts of properties independently of property ownership, provided that the right to use such property or the contractual right of use already existed before joining.

Property law adjustment

This legal situation turned out to be an extraordinary barrier to investment in the new federal states. If an investor acquired a piece of land that was previously publicly owned, he could not be sure that there were no separate rights to buildings, structures, plants, plantings or facilities. The promulgation of rights to buildings was often omitted; Rights to rest homes etc. were not registered at all. Because the authorized citizen could not demand the announcement in a public register according to the GDR land register law, one could not unilaterally attribute the loss to the owner of the use by means of a bona fide purchase by the investor. The aim was therefore to remove the rights to essential parts of the property. This property law adjustment was carried out by the Property Law Amendment Act of October 1, 1994 in the so-called dual system, i. H. The owner of the use could buy half of the market value of the property, on which he did not own property under GDR law, or the owner could have the property converted into a thirty-year heritable building right . In the event of a dispute, the settlement of property law initially took place in an upstream mandatory notarial mediation process. The aim of the property law adjustment was to bring the property right back to the BGB, to restore the lendability and marketability of the property and to distribute half of the land values ​​created by the market economy between property owners and landowners.

Regulation of open property issues

The settlement of open property issues, on the other hand, concerns the extent to which former owners who were expropriated without compensation by the Soviet Union under its occupation regime or later by the GDR should be returned to their previous ownership positions. A balance of interests had to be sought between the previous owners and the current property owners and usage owners. Art. 21  f. of the Unification Treaty regulates the issues relating to the relocation of public property to the GDR at that time, the law regulating open property issues of August 31, 1990 ( Federal Law Gazette II p. 885, 1159 ) standardized the other cases of expropriations by the GDR (e.g. B. GDR refugees ). On the other hand, according to Art. 41 of the Unification Treaty, the return of property that has been expropriated by the USSR is excluded. Despite heavy criticism, the last regulation was confirmed by the Federal Constitutional Court with the argument that these expropriations were not based on German, but Soviet sovereignty and were therefore not attributable to the German state. In the hearing before the BVerfG, the then State Secretary Kastrup stated that the USSR had made the irreversibility of the expropriations of its occupation a condition for reunification. The Constitutional Court ruled in November 1996 that the expropriations were constitutionally unobjectionable because they were expropriation measures on the basis of occupation sovereignty.

There was agreement between the CDU and the SPD that the proceeds from the sale of real estate that were still in the public sector should be used to reverse or compensate for the expropriations that had previously been unpaid. Since the Federal Republic of Germany was the legal successor of the GDR, it had to reckon with rehabilitation lawsuits under its own legal system. While the SPD expected proceeds of at least 500 billion D-Marks for the state budget , the then ruling CDU complied with the demands of the expropriated former owners and their descendants and ensured the return of the objects or in exceptional cases with the campaign " Unrecht DDR" for adequate compensation . Overall, the state did not make a profit with the privatization actions, but a loss of 270 billion D-Marks ( inherited debts fund ). The expropriated former owners who emigrated or fled from the GDR to the Federal Republic of Germany had been compensated in the Federal Republic. In order to be able to register claims for restitution, the previous owners or their heirs had to repay this compensation to the state.

See also

literature

Individual evidence

  1. ↑ § 21 ZGB-GDR
  2. ↑ § 19 ZGB-GDR
  3. ↑ Use of land for allotment gardening, recreation and leisure activities §§ 312 ff. ZGB-GDR.
  4. ↑ Granting of rights of use to state-owned land for the construction of one's own home, §§ 287 to 290 ZGB-GDR.
  5. ↑ BR-Drucksache 515/93 p. 53.
  6. ↑ § 295 Paragraph 2, § 296 ZGB-GDR.
  7. ↑ Section 20 (3) sentence 1 ZGB-GDR.
  8. ↑ Section 20 (3) sentence 2 ZGB-GDR.
  9. ↑ Guido Harder: Overcoming and renaissance of divided property - an attempt at a historical classification of the separate building ownership under GDR law . In: fhi . 1998, ISSN  1860-5605 ( online [accessed November 29, 2014]).
  10. ↑ Act on the Transfer of War and Nazi Criminal Businesses into the People's Property on Wikimedia Commons , Ordinance Implementing the Act of June 30, 1946 on the Transfer of War and Nazi Criminals' Businesses to the People's Property on Wikimedia Commons and exemplary for the other states and Berlin expropriation list 1 to the resolution of the democratic magistrate of Greater Berlin on the implementation of the law on the confiscation of assets of war criminals and Nazi activists of February 8, 1949
  11. ↑ Quoted from Falco Werkentin: Politische Strafjustiz in der Ära Ulbricht , Ch. Links, Berlin, 1997, ISBN 978-3861530695 , p. 68
  12. ↑ Report on the experience with the implementation of the new judicial laws, quoted from Falco Werkentin, p. 69
  13. ↑ Journal I p. 253
  14. ^ Journal of Laws I p. 372.
  15. ↑ Journal I p. 300.
  16. ↑ Journal of Laws of I No. 39 p. 524.
  17. ↑ Decisions of the 1st Chamber of the First Senate of the BVerfG against restitutions (1 BvR 707/95, 1 BvR 1249/94 and 1 BvR 1260/94) jura.uni-saarland.de.