Objection regulation

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The objection regulation refers to a regulation according to which consent to a decision is deemed to have been made if the person concerned does not explicitly object. The opposite is the consent rule .

In legal dealings , silence does not count as a declaration of intent , i.e. neither as consent nor as rejection. Specific exceptions are described in the article Silence (law) . The consent regulation corresponds to this principle: the declaration is only deemed to have been given if the person concerned explicitly agrees.

Essential areas of application

Organ donation
The term contradiction regulation has a special meaning in the area of organ donation . In countries where this applies, every adult who is not incapable of giving consent is a potential organ donor who has not expressly opposed it. In countries with consent regulations, anyone who wishes to be available as an organ donor must have made a clear declaration of intent during their lifetime (e.g. organ donor card ). The consent regulation also exists in an extended form, for example in Germany (§ 4 Transplantation Act) and Switzerland (Art. 8 Transplantation Act). With the extended consent regulation, the relatives may consent to the organ removal , provided the deceased person neither consented nor objected during his lifetime. The donor can also transfer the subsidiary consent competence to a confidant. In a draft law in April 2019, the Federal Minister of Health Jens Spahn proposed a double objection rule for Germany, through which every person aged 16 and over who is not incapable of giving consent automatically becomes a potential organ donor.

Data protection
Section 28 (4) of the German Federal Data Protection Act standardizes a contradiction rule in the area of data protection . If the data subject objects to the processing or use of his or her data for purposes of advertising or market or opinion research at the responsible body, processing or use for these purposes is not permitted.

Criminal proceedings
When examining the usability of evidence in German criminal proceedings, the so-called contradiction solution applies to some errors in the collection of evidence . The accused must explicitly object to the use of evidence, otherwise the evidence can be used as the basis for the judgment.

Lived counter-examples

The lived practice of medicine knows at least three examples in which an informational discussion is not held with the patient or his relatives, nor is a treatment contract concluded, and doctors still take action:

  • Serious accidents -
    if the victim cannot be contacted after a serious accident , first aid will be provided immediately .
  • Breathing and cardiac arrest -
    if someone is found without breathing and without a beating heart and it can be assumed that this arrest has only existed for a few minutes, first aid will be provided immediately .
  • Unsuccessful suicide attempt -
    if someone attempts suicide , he expresses through his act that his longing for death is greater than his will to live. If the suicide is found in a state in which it is still possible to save his life, appropriate rescue measures are taken.

In all of these examples, the doctors act according to the presumed will of the patient, in the case of suicide attempt even clearly against the (current) will of the patient.

The law knows the management without an order (Negotiorum gestio). It is legally regulated in Sections 677 - 687 of the German Civil Code (BGB) .

literature

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