The right of the public things belongs to the general administrative law. It has not special things, but special use possibilities and/or a special status to the article. Purpose of the public thing right is to make the use possible of things in the interest of the common well-being of the public or special entitled ones.

Term of the public thing

A public thing can represent, thus also air or electricity to each article. Things in the sense of the public things are limited not to the special term under private law "§ 90 BGB, do not have to be not physical thus. The regulations over accessories and components of things from the civil right are not applicable to the term of the public thing. For example one, with a private property firmly groups telecommunication installation an independent public thing, can be form exactly the same as a public way, which extends over several private real estate properties, a uniform public thing can.

Organization of public things

The public things can be divided into different groups:

• Things in the external civil use
  • Things in the Gemeingebrauch can be used by the public in principle without previous permission. An example for this are Roads. An exception exists to that extent for the special use Things in the Gemeingebrauch, thus a use, which goes beyond the intended Gemeingebrauch: Here a prior permission is necessary. This applies approximately to setting up tables and seat possibilities forwards in the pedestrian precinct lain.
  • Things in the special use can be used only after permission and only to the extent permitted by them. This meets for the water-economical use Waters too.
  • Things in the institute use are public mechanisms; the term of the "“institute"” is thus not limited to institutes of the public right thereby.
• Things in the internal administrative use are such, which only the public administration for the fulfilment of their tasks for the order, thus of the ball-point pen in the office over the service cars up to office building.
• res sacrae are finally things of church-legal bodies of the public right, which are dedicated to their purpose. In addition e.g. count. Church building.

To the public things do not count however things, those in the property of private stand and by these for the public to be made accessible (so-called actual "“public things"”) and the To the belong things, which benefit the public by acquisition-economical use only indirectly over their yields.

Right nature of the public things

Reference of the right nature of the public things two different beginnings are pursued. On the one hand the right figure "“of the public property"” is created at the public things. The other beginning takes a dedication of property under private law for public purposes forwards (binaryistic construction).

public property

Rechtsinstitut of the public property was introduced in Hamburg by the way law for all public ways, roads and laws ("§4 I HamWG). Extended in reaction to the storm tide by 1962 with the dyke order law from 29 April 1964 this Rechtsinstitut to dyke properties ("§4a HamWaG). Is the public property without reference to the rules of the private property to understand ("§"§4 I 5 HamWg, 4a II 3 HamWaG). The public property as a comprehensive material right did not become generally accepted otherwise, because one is missing comparably with the civil thing right out-arranged right subject, which would have to only concretize the public vested title.

binaryistic construction

The binaryistic construction modifies the private property. Public things are things, which are certain not however necessarily in the private property, in the property of private, by dedication a public purpose serve and are actually placed in service. Therefore the regulations are to be applied over the civil thing right directly to the property at a public thing. This private property is overlaid thereby by a public special rule. During this construction one differentiates the following persons, who are in reputation of the public thing entitled or obligated:

• the owner under private law ("§903 BGB) of the public thing
• the public special gentleman, who dedicated the thing
• the person, who has to guarantee the maintenance of the public thing (building reading carriers)
• the person, from the dedication for the use of the public thing is entitled (entitled)

These persons often collapse or cause themselves mutually. So in the federal highway right after "§2 II Var.1 FStrG provided that the carrier of the road construction load (after "§5 I 1 FStrG usually the federation) also owner the road of serving property is or after "§2 II Var.2 FStrG of the owners to the dedication consents and/or the public special gentleman contractually permitted. The property can procure itself the federation also on the way of the expropriation. After "§2 II FStrG is sufficient also an other material Rechstposition (like a private easement) of the public special gentleman.

That at the thing entitled directly can also, as with things in the administrative use, the public special gentleman be. With things in the institute use first also only the public special gentleman is entitled at the things. The institute users are entitled for their part only over a mandatory legal relation, like a statute or act of administration for use.

Literature

• Franz Joseph Peine: General administrative law, 7. Aufl., 2004. ISBN 3-8114-9017-6

Related links

• Hamburgi way law (HWG)
• Hamburgi water law (HWaG)
• BVerfGE 24, 367 - Hamburgi dyke order law

Articles in category "Quite the public things"

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