Bücher veröffentlicht von Duncker & Humblot GmbH

»Diversity in Law«: Diversity in law has many facets. For example, it can be a fact that law has to deal with; it can be a goal that law pursues; it can also be a method or a means by which law works. These and other dimensions are examined in this volume, which emerged from a conference at the University of Hamburg, on the basis of selected sub-disciplines of law

»Protection Against Imitation under Unfair Competition Law after Expiry of Patent Protection«: If the patent protection of a product expires, competitors of the original manufacturer can imitate it - if it were not for the protection of imitation under unfair competition law. The book discusses the contradiction of the temporal succession of the patent and protection under Sec. 4 No. 3 UWG, which was the basis of the BGH decisions »Exzenterzähne« and »Bodendübel«. The author includes a comparison with the US protection of trade dress as well as a legal economic analysis in the discussion.

»The assumption of responsibility of the managing director of a GmbH for the insolvency risk of the creditors through the claim in the regular insolvency proceedings«: The thesis deals with the question to what extent the liability risk of the managing director in the insolvency of a GmbH serves or should serve to reduce the insolvency risk of the unsecured creditors. The study shows that the regulations on the assumption of risk in German corporate and insolvency law, in particular § 64 GmbHG a.F. and § 15a InsO, must be harmonized so that the managing director is only liable for the insolvency risk of the unsecured creditors for which he is responsible.

»The Contractual Participation of Third Parties in the Profit of the GmbH«: The thesis examines the conditions under which a limited liability company (GmbH) can allow persons other than its shareholders to participate in its profits by contract. In particular, the compatibility of a contractual profit participation with the German Limited Liability Companies Act (GmbHG) as well as the analogous applicability of regulations of German Stock Corporation Act (AktG) are discussed.

In German Criminal law one of the major principle is that nobody can be convicted without an allegation of guilt. This basic principle is one of the irreversible principles of the Constitution based on dignity of man. Therefore, German Criminal law is also known as »law of guilt«. Despite this superior ranking, the concept of guilt stays unsatisfactorily vague. What can be called the essence of being guilty so that man's responsibility can be treated as a fact? In a first part »Schuld und Strafmaß« is trying to give answers.The second part is dedicated to define a legal entity, which will allow combining both classic doctrines of justification and the assessment of the penalties in form of a common denominator. The theory of »differential sentencing« (»differentielle Strafzumessung«) promises to be this aimed concept by strictly implementing the constitutional rule of equality.

»The Hidden Transfer of the Exercise of Shareholder Rights in the Area of Conflict between Legitimate Shareholder Interests and Transparency of Shareholdings«: The hidden transfer of the exercise of shareholder rights which the recipient then exercises in his own name, is a legal hybrid between proxy and trustee. It allows the share owner to remain anonymous not only in the annual general meeting, but also in the share register of stock corporations with registered stocks. The conflict with the legislative efforts for an increase in the transparency of shareholdings is obvious, but there are also some legitimate reasons to choose this construction.

»Legal Status of Elite Football Referees in Germany«: In this thesis, the question is examined of whether elite football referees are in an employment relationship with the DFB. It then analyzes the legal consequences of both the affirmative and the negative answer to this question. Special attention is paid to the practically relevant issues of the legal admissibility of a fixed-term work contract, the legitimacy of an age limit and the liability of referees during a match.

»Recognition of Mental Illness by the Statutory Accident Insurance«: Placed at the interface between scientific questions of medicine and social security law, the study examines whether and how far mental illness caused at the workplace can be covered by the statutory accident insurance. The author analyses existing problems such as the proof of causality and discusses possible solutions for the recognition as an accident at work or as an occupational disease.

»The German Taxation of Controlled Foreign Corporations as a Treaty Override. Between Legitimate Rules against Tax Avoidance Practices and Breach of European Law«: Is the treaty override of § Sec. 20 (1) AStG (still) in conformity with European Union law and what is the significance of the treaty override of the controlled foreign corporation (CFC) if the exercise of taxation rights is secured by the extensive DTA network within the EU and the altered European legal situation? The study systematically identifies the criteria of reliability and system openness of tax systems, which are prerequisites for a defense against abuse in conformity with EU law.

»Culture Law - Cultural Artefacts as legal objects under Copyright Law and Culture Property Law«: In the wake of the highly controversial 2016 reform of the German Cultural Property Protection Act, the work deals with the hitherto largely unstudied legal tension between copyright and cultural property. It attempts to define an overarching cultural right along the boundaries of the public interest in cultural artifacts and the private interests of their creators. The previous debate on the protection of cultural property in terms of freedom of ownership is expanded to include a discussion of the freedom of art.

»On Legitimacy in the Case Law of the Federal Labour Court - From Ideology to Legal Myth«: The object of the study is the analysis of selected judicatures of labour courts. The analytical conceptual framework is formed by three theorems: legitimacy, ideology and legal myth. The mechanisms for producing legitimacy in labour court decision-making practice are made transparent. They obscure the view of the ideological contexts lying behind the reasons for decisions. Against this background, the contents of the decisions are subjected to a critique of ideology.

»Scintilla de libro legume. Roman Vulgar Law under the Merowingians According to the Fulda Epitome of the Lex Romana Visigothorum. Reconstruction, Translation, and Commentaries«: The author deciphers a legal text in Latin that summarises the law in effect under the Romans in the Frankish Realm from the 7th century, whose content has only been preserved in a corrupt manuscript from the 8th century. The original version, however, can be reconstructed, as was done here. Various deviations from the original text, the Lex Romana Visigothorum from 506 AD, were made to modernise certain regulations. The German translation facilitates our understanding, and the commentaries explain and discuss such deviations.

»Legal Quality and Impact of the Hamburg State Treaty with Muslims - The German Statechurch Law in a State of Flux«: The Hamburg »State treaty with Muslims« signed 11-13-2012 is a cooperative treaty sui generis. So it can¿t be characterized as a state-church treaty in the stricter sense. Although the Hamburg treaty awards the necessary legal quality to the three muslim federations that are involved there are legal questions that stay unanswered, especially concerning islamic religous instruction. Towards the Hamburg state association of the (Turkish islamic) DITIB-Federation there remain doubts to its ability to legal cooperation because of its proximity to the Turkish state. So the Hamburg treaty marks »generation 3, 5« of the German state-church law.

»Objection to Double Demands. An Examination of the Double Protection in Patent Law«: The harmonization efforts concerning the European patent system resulted in the proposal in Germany to allow the simultaneous protection by national patents and European patent titles, which is limited by the possibility to raise the objection to double demands. The dissertation examines this simultaneous protection as well as the possibility to object double proceedings and presents the conclusion that more and the better arguments plead for the introduction of the limited double protection.

Wenn zu Beginn dieser Darlegungen über »Legalität« und »Legitimität« die heutige innerstaatliche Lage Deutschlands staats- und verfassungsrechtlich als »Zusammenbruch des parlamentarischen Gesetzgebungsstaates« gekennzeichnet wird, so ist das nur als eine zusammenfassende, kurze, fachwissenschaftliche Formel gemeint. Optimistische oder pessimistische Vermutungen und Prognosen interessieren hier nicht; von »Krisen« - seien es nun biologische, medizinische oder ökonomische Krisen, Nachkriegskrisen, Vertrauenskrisen, Gesundungskrisen, Pubertätskrisen, Schrumpfungskrisen oder was immer - soll ebenfalls nicht gesprochen werden. Um die ganze Problematik des heutigen Legalitätsbegriffes, des ihm zugehörigen parlamentarischen Gesetzgebungsstaates und des aus der Vorkriegszeit überlieferten Rechtspositivismus richtig zu verstehen, bedarf es staats- und verfassungsrechtlicher Begriffsbestimmungen, welche die gegenwärtige innerpolitische Lage in ihren staatlichen Zusammenhängen im Auge behalten.Aus der Einleitung

»EU Judicial Cooperation in Civil and Criminal Matters. Current State and Future Reform«: For more than two decades, the project to create a single »European judicial area« between member states has been one of the most dynamic EU policy fields. Examining the current status quo of judicial cooperation in civil and criminal matters, this book maps out EU policy makers' next steps: Which elements of the European judicial area have proven successful so far - and which parts must be revisited by the EU legislator? A particular emphasis is placed on the fostering of mutual trust as a general precondition for the European judicial area's future success.

»Life and the Spirit. On the Genealogy of the Concept of Life Form«: Whenever the concept of life form is used, fundamental ideas of the correct way of acting and thinking resonate. The history of this term goes far back into antiquity and is yet of current relevance. Due to the fact that the concept of life form is hardly ever reflected upon, it needs to be examined in detail. In terms of a >philosophy of life forms

Following an examination of primary sources on the origination of investment arbitration in the 1950s and 1960s, the thesis demonstrates that the historical narrative in legal textbooks ignores a crucial period at the time of its formation concerning the organic development of international law as the overreaching corrective in investment disputes, including international arbitration practice as the applicable dispute resolution mechanism. By scrutinizing decisions of national and international courts, legal literature, and state practice before and during this period, the author demonstrates that the arbitral awards relied on by the legal textbooks, which are based on the internationalization doctrine, are in clear contrast to the prevailing national and international doctrines at the time, and thus cannot be used as a valid basis for an organic development of the law.

»Corporate Liability in Global Supply Chains. Jurisdiction, Private International Law and Duty of Care«: Due to matters of law or fact transnational corporations are generally not liable for damages caused by their subsidiaries or suppliers to victims from the Global South. Paul Meder examines the current legal situation with regard to private international law and jurisdiction. On this basis he offers a legislative proposal for a German due diligence act regarding the liability of parent and buyer companies.

»The pecuniary loss in the embezzlement. The possibility of compensating asset outflows through illegally obtained profits. An examination in the light of recent developments in jurisdiction«: In cases of corporate embezzlement, when an employee uses company funds to obtain lucrative contracts through bribery, a central question is whether the company suffers a loss within the meaning of Section 266 StGB as a result of the bribery or whether its assets are ultimately increased by obtaining the contract. This work shows that illegally obtained profits must be included in the assessment of the economic loss and that the compensation of asset outflows must be assessed purely economically.

Der Streit um die Zulässigkeit von Differenzierungsklauseln geht in eine neue Runde: Während sich die Debatte bislang hauptsächlich auf Tarifklauseln konzentrierte, die zwischen Gewerkschaftsmitgliedern und anderen Arbeitnehmern unterscheidet, beschäftigen sich die Gerichte seit einiger Zeit auch mit Tarifverträgen, die Leistungen von der Mitgliedschaft zu einem ganz bestimmten Zeitpunkt abhängig machen. Damit unterscheiden sog. »Binnendifferenzierungsklauseln« augenscheinlich nur zwischen verschiedenen Gruppen von Gewerkschaftsmitgliedern. Felix Mayer zeigt auf, dass das BAG in seiner viel diskutierten Entscheidung vom 15.4.2015 lediglich über eine Spielart dieser Klauseln entschieden hat und die Grenzen der tarifvertraglichen Ausgestaltungsfreiheit von der jeweiligen konkreten Situation abhängen. Er hinterfragt zudem die bisherigen Begründungsansätze für die Gleichbehandlungskontrolle von Tarifverträgen und erarbeitet hierfür eine neue dogmatische Grundlage.

»The Guideline Activities of the German Medical Association in Transplantation Medicine. An Examination Using the Example of the Guideline on Liver Transplantation«: The thesis deals with a perennial topic of medical law - transplantation law. The focus of the study is the guideline competence assigned to the German Medical Association (Bundesärztekammer) by the Transplantation Act (Transplantationsgesetz) in the area of post-mortem organ transplantation. A further focus is a detailed legal and constitutional assessment of the specific guidelines of the German Medical Association on liver transplantation.

»The Religious Legal System of Alsace-Lorraine in a Comparative Law Perspective«: The study collects, analyses and evaluates the droit local des cultes in the context of its historical development and its current existence, in confrontation with constitutional and European law standards and in the light of a trilateral legal comparison with common French and German state-church law. It shows that in Alsace-Lorraine, beyond theoretical foundations, religion is cultivated in the public interest in a very pragmatic and original way.

»The Natural Law of the Present and the Unavailability of Law. An Analysis of the Place of Natural Law thinking in Current Jurisprudence«: Natural law theory argues that principles, precepts, or entire supra-positive legal orders can be derived or recognized from reason or nature that provide a standard for just law. This long existing idea has been given too little attention in the recent past in German-language legal scholarship. This work therefore deals with the relevance of this theory and compares various attempts to justify it in terms of natural law.

»The Citation Rule (Art. 19 para 1 s. 2 GG). Reconstruction of a Misunderstood Norm«: The citation rule of Article 19 para 1 sentence 2 of the German Basic Law forces the German legislator to openly name interferences with fundamental rights in laws. However, the provision has hardly played a role in the Federal Republic of Germany. This thesis attempts to reconstruct the citation rule. It examines its functions and deduces that the scope of application of the norm is significantly broader than according to the case law of the Federal Constitutional Court.

»Assemblies Beyond Public Streets. An Investigation on the Spatial Scope of Protection of Art. 8 (1) of the German Constitution«: The work deals with the legal issue as to the use of areas for assembly purposes. It answers the question of whether, in addition to the traditional public street space, other areas may be used to conduct assemblies. The work also develops a comprehensive solution from the basis of an existing dogmatic conception on fundamental rights, which can consistently explain the rights to use public and private areas for assembly purposes.

»The Necessary Participation: Penalty Reason for Participation in the Context of the Responsibility Theory«: Neither the theory of the subject of protection without punishment nor the theory of minimum participation without punishment can provide a satisfactory solution to the problem of necessary participation. In this thesis, the question was investigated whether and, if so, why the necessary participation within the framework of the general participation theory, which is shaped by aspects of responsibility, can be unpunished. An opportunity is offered to reflect on the currently dominant general participation theory.

»Dispotions und Ethical Life in Hegel¿s Philosophy of Right«: Is a community completely free from the subjective dispositions of its citizens possible? Is the state a community of security, and if so, is it a community of interests in which individual freedom is still possible? Must we go beyond this conception of the mechanical state and give dispositions a fundamental status again? Hegel shows us that there is a complex and subtle relationship between disposition and community, a relationship which, when dissected, allows us to understand more deeply the dilemmas of modern philosophy of right and the path that Hegel shows us.