Bücher veröffentlicht von Duncker & Humblot GmbH

»The Margin of Appreciation in European Administrative Law based on the Example of Migration and Environmental Law. On Final Decision Powers and Authority in the Multidimensional System of the European Union and their Effects on the Procedural Autonomy of the Member States«: So far, there has been a general understanding that European administrative law is unfamiliar with the fine distinction between the margin of appreciation regarding legal facts and legal implications (so-called administrative final decision powers), which is a central element of German administrative law dogmatics and which has been decisively promoted by the latter. Decisively, this understanding stems from the early economic administrative law of the 1980s, which can hardly cover the scope of today's existing legal frameworks. Against this background, the thesis puts a possible dogmatization of the existing understanding of a standardized administrative final decision power on trial and makes an attempt at a methodical integration in the multidimensional system of European administrative law. The investigation is not carried out from the abstract perspective of the German system (»General Part« and »Special Part«), but rather from the concrete reference areas of the specialized law.

»European Court of Justice and Federal Constitutional Court as Guardians of the Principle of Conferral«: As far as the European Court of Justice is concerned checks and balances with regard to EU-organs and member states can less be guaranteed by the theoretical option of treaty amendments (Art. 48 TEU) or the equally theoretical possibility of overruling the court¿s jurisprudence by secondary legislation. The only practically relevant instrument insofar is a sincere cooperation between the Court of Justice and the Constitutional and Supreme Courts of the Member states which entails the possibility of preliminary requests under art. 267 TFEU as well as identity and ultra-vires-control.

»Deconstructing the Rhetoric of Federalism - On Doctrine in Law and Literature. Instrumental Federalism in the United States of America and the Federal Republic of Germany as a Lyrical Figure of Reading«: In American and German federalism, courts assertively deploy topoi such as >state dignity< or >Bundestreue< which are not laid down in the constitutional texts. The comparative study scrutinizes these >unwritten< doctrines as examples of activist judicial constitutionalism. The topoi revolve around anthropomorphic, >lyrical< notions of >dignity< and >fidelity

»Forms of Decision in Land Register Procedural Law de lege lata and ferenda«: Stefan Bohlsen examines the forms of decision in land register procedural law on an application for registration that is not immediately enforceable, structures their areas of application and sheds light on their interrelationship with real erstate and enforcement law. The author comes to the conclusion that the current legal situation is not sufficiently taken into account in the practical work of the land registry. He considers, how the interest in a concentrated land register procedure, the guarantee of correctness of the land register and the formalistic constraints of real estate law could be balanced more gently de lege ferenda.

»Working Services as Relative Date Transactions Exemplified by Overtime Work«: The thesis deals with legal questions regarding the dogmatics of working time including multiple references to flexible working time arrangements in the modern work environment. In this context, the concept of working time and the currently prevailing dogma of the drop dead date are discussed. The results of this discussion are then examined in terms of their practicability on the basis of the phenomenon of overtime work.

»Capacity Mechanisms to Ensure Security of Supply Against the Background of a CO2-neutral Electricity and Gas Economy«: This thesis deals with the variants of instruments, especially capacity mechanisms, developed for ensuring the security of energy supply on the electricity and gas market with a view to a CO2-neutral electricity and gas economy. After the analysis under political, economic and legal aspects, various recommendations for action follow in the course of an outlook in view of the far-reaching restructuring of the energy supply system in Germany and the European Union.

»Claim, Infringement and Presentness. An Investigation Starting from the Functional Contexts of our Legal System to the Individual Questions of the Nature of Claims in rem.«: The thesis deals with the roots of the concept of the claim in the law of the 19. century and its present-day contour. It comes to the conclusion that the claim is a pure instrument of legal realization and that it must be separated from the respective substantive right, which assignes value. The present violation of a substantive right is a prerequisite of any claim. Finally, the thesis examines the conclusions that can be drawn from this for in rem claims, especially §§ 985 and 1004 BGB.

»The Role of the Notary in Artficial Insemination with Donor Sperm«: Medical advances and social change have for years led to calls for a reform of the German law of descent. The instrument of notarisation of descent-relevant declarations has so far been neglected within the numerous reform proposals. The work shows that the involvement of notaries in agreements to have children on the occasion of a sperm donation can contribute to more legal certainty under current law and would offer great added value within the framework of a reformed law of descent.

»The German Concept of Inside and Outside Basis in Partnership Taxation. Fundamentals of Partnership Taxation and Conclusions for the Depreciation of Partnership Assets«: The thesis examines the German judicially developed concept of inside and outside basis in partnership taxation with special regard to the depreciation of assets. At the same time, the fundamentals of partnership taxation are reappraised and remeasured. The author develops his own standards for the depreciation of assets in partnership taxation based on an appraisal of basic principles of constitutional law, provisions of simple law, and theories of case law.

»The Supervisory Board in Fully or Partially State-Owned Corporations«: If the state holds shares in a company, conflicts may arise between corporate law and public law, in particular constitutional law. This paper examines the questions that arise from these conflicts with regard to the formation and composition of the supervisory board and the legal status of the members of the supervisory board in fully or partially state-owned companies.

»The Municipality as an Addressee of Conflicting Obligations of Corporate Law and Municipal Economic Law. A Legal Economic Analysis of the Law of the State of Baden-Württemberg«: The municipality must observe both company law and municipal business law when engaging in economic activity in private law form. Contradictory requirements may arise from this double binding. The study shows that the contradictions can be traced back to a misconception on the part of the state legislators following the new conception of the legislative authority of the Grundgesetz, and that the municipal law requirements are in part unconstitutional.

»Need for Reform in Short Attacks«: Short attacks represent a cross-sectional issue under capital market law, the enormous effects of which have been insufficiently considered so far. For this reason, the dissertation weighs the different interests in the context of Short attacks from an economic and legal point of view. After weighing them up, an appropriate balance is conceived by means of a new legal regulation in the form of a temporary trading ban as well as an optimization of the already existing norms.

»Universal Institute >Building encumbrance A Normative Examination with Reference to the Heritable Building Right«: Urbanization, shortage of building land, housing shortage - a development that confronts us with the question of optimized use of land. In order to make legal provisions in the area of building law more flexible, the German model building code allows the use of a building encumbrance under public law, comparable to an easement. In principle, the land owner assumes the encumbrance. But what influence does a heritable building right have in this matter? The lack of regulation creates a need for action.

»Unterwegs in Kriminologie und Strafrecht - Exploring the World of Crime and Criminology«: In 2020, Hans-Jörg Albrecht, director emeritus at the Max Planck Institute for Foreign and International Criminal Law turned 70. "Unterwegs in Kriminologie und Strafrecht - Exploring the World of Crime and Criminology" is a Festschrift in his honor by a large, international group of authors drawn not only from these two disciplines. Its broad spectrum includes contributions on security and prevention, criminology and criminal policy, the entire field of criminal social control, juvenile delinquency and juvenile criminal law, as well as the impacts of criminal punishment and the enforcement of sentences.

»Justification and Prohibition of Evidence«: This thesis deals with the dogmatically coherent justification of prohibitions of proof in criminal and civil proceedings in the context of evidence obtained by private individuals on their own initiative. It primarily examines the relations between substantive conduct requirements and procedural legal implications. The author differentiates between several points in time and thereby sheds light on provisions of civil law, data privacy law and criminal law.

»The Restriction or Foreign Direct Investment in Security-Related Civilian Companies. A Constitutional and Union Law Analysis of Foreign Trade Law Provisions with Special Consideration of Media Companies«: Cross-sectoral investment screening is becoming increasingly significant both politically and legally. This study takes the national FDI screening regime as an illustration and addresses the question of whether it is compatible with constitutional and European Union law. It is shown that the legal framework needs to be reformed due to the indeterminacy and disproportionality of the regulations. Recommendations for the practical use of the mechanism are given and reform proposals are developed.

»Common European Private Law in Romania. New Codifications at the Crossroad of French, German, Austrian and European-International Influences«: Situated on the south-eastern periphery of Europe and also of the European Union, Romania is nevertheless to a certain extent located at the centre of European developments in civil law: Closeness above all to the French Code civil, but also influences of the Austrian ABGB and German law as well as other legal systems accumulate to a new European-internationally open ZGB of 2011. This volume reveals Romanian civil law as part of the common European private law.

»Codification and Legal Consequences of Confusion«: This thesis deals with the legal consequences of the unification of claim and debt in one legal subject, the so-called confusion. In addition, the thesis answers the question of whether it makes sense to introduce a legal norm into the German Civil Code that regulates confusion in general. To answer and solve these central problems, legal-historical, comparative-legal as well as legal-economic investigations were applied.

»The First World War - a defensive war?«: The First World War was the most extensive war in history to date. What were the causes of this war? In the official account of the German government, Germany was engaged in a defensive war. The author questions this account and discusses the role of influential forces in the empire that may have pursued annexationist war aims with the war. Similarly, the significance of World War I for subsequent events in 20th century history is examined. In what ways did it shape the anti-semitic ideology of National Socialism? Was National Socialism also a result of the First World War? What lines of connection can be drawn to the Second World War?

»Subalternity, Racism, Law«: The thesis combines a critical discourse analysis with an analysis of power and law. The broad, empirical analysis can show that German jurisprudence operates with an under-complex understanding of race and racism that reserves racism for extreme forms of violence or equates it with right-wing extremism.

»The Sovereign Distribution of Scarce Goods using the Example of the Promotion of Renewable Energies. Tenders in the EEG as a Distribution Procedure«: With the introduction of tenders, a fundamental shift took place from statutory determination to competitive determination of renewable energy support. The quantitative limitation of the renewable expansion leads to a scarcity situation, which forces the state to make a selection among the applicants. In this context, the specific subject law of renewable energies can be viewed from a general perspective on the basis of the distribution procedure.

»Opting Out of The Application of UN Sales Law Due to Legal Uncertainty«: In practice, parties still regularly - consciously or unconsciously - opt out from the application of UN Sales Law. One of the most common reasons given is an allegedly too high degree of legal uncertainty when applying UN Sales Law. The author examines the extent to which the deselection of UN Sales Law on the basis of alleged legal uncertainty is convincing. It is shown that the blanket accusation of too much legal uncertainty when applying UN Sales Law can no longer be upheld. The focus of the study lies, among other things, on an in-depth assessment and presentation of the abundance of working materials and German as well as international case law on UN Sales Law. Furthermore, a detailed analysis of the existing international literature and case law is undertaken in order to demonstrate the great degree of legal certainty with which both the scope of application of UN Sales Law can be determined and central (exemplarily selected) substantive legal questions can be answered.

»Faces of Souvereignty«: This volume brings together the contributions to a German-Italian symposium that discussed European sovereignty conflicts on the basis of the European jurisprudence of the Federal Constitutional Court. What is the meaning of sovereignty in a connected system? Are the conflicts a sign of the persistence of the idea of sovereignty or a retreat tactic of individual actors? This edited volume examines the faces of sovereignty from a legal, conceptual and political-theoretical perspective.

»The Guilt Principle in European Competition Law«: The European Competition Law is often criticized for infringements of the guilt principle. The thesis examines if this criticism is justified. Conflicts with the guilt principle can be found in several areas of fining proceedings in competition law. The thesis shows that not every conflict means an infringement of the guilt principle, because the guilt principle has to be balanced with the objective of an undistorted competition.

»Artificial Intelligence and Strict Liability in Public Law. On the Necessity of Introducing a Special Endangering Liability Statute«: Due to its learning ability and intransparency, the use of AI entails particular risks. In this respect, the question of whether the state may use AI vis-à-vis citizens depends crucially on the scope of liability at the secondary level. The current state liability law does not provide sufficient secondary legal protection. Instead, there is a need for the introduction of a public-law strict liability statute that provides adequate compensation for the AI-specific risks.

»Saarland Financial Constitutions in Times of Upheaval. Saarland Financial Constitutional Law from 1945 to 1957/1959«: Based on the economic affiliation of the Saarland to France after World War II to July 5, 1959, the thesis analyzes the financial constitutional law in the Saarland during this period. Special attention is paid to the turnover tax and the excise duties, which were largely »Frenchified« in the Saarland and distributed between the Saarland and France according to a population-based key. Furthermore, the paper highlights the parallels of this Franco-Saarland economic union to European integration.

»The Use Of Opening Clauses In Criminal Law - A Constitutional Law Analysis«: Opening clauses in criminal law are intended to enable constant adaptation of existing laws to changing circumstances. However, they raise constitutional concerns. This dissertation approaches the question of constitutionality in two ways: First, it examines whether the justificatory approaches to the use of opening clauses are viable. Second, it analyses the concrete compatibility of opening clauses with the constitutional principles of german penal legislation.

»Use of Symbols of Unconstitutional Organisations in Computer Games pursuant to § 86a (1) No. 1 of the German Penal Code and the Protection of Minors from Harmful Media«: In 1998, the OLG Frankfurt a.M. in its »Wolfenstein Entscheidung« imposed a ban on Nazi symbols in computer games. Current developments, in particular the influence of the Internet on the medium and digital marketing, have revived the question of the criminal liability of Nazi symbols in computer games. In addition to legal questions of criminal law and the application of criminal law, problems of media law and the protection of minors from harmful media in connection with § 86a of the German Criminal Code are also examined.

»Public Undertakings and the Right of Access to Information. An Examination Based on the German Data Use Act (DNG) and the Recast of PSI-Directive (EU) 2019/1024 on Open Data and the Re-Use of Public Sector Information«: Transparency portals and the new PSI Directive (EU) 2019/1024 are increasingly obliging public undertakings to proactively provide information. Hereby, the legislators not only hope to strengthen democratic processes based on the rule of law, but also to tap a broader range of economic potentials. The thesis critically examines these aspirations and investigates whether and how public undertakings can make an effective contribution.

»The Guiding Principle of Group Sovereignty Pursued by >Gender Parity Election Proposal Regulation< in the Light of the Constitutional Principle of Democracy«: Gender parity election proposal regulations continue to be the (not only) legal-political means of choice to achieve the goal of equal representation of women and men in representative bodies. The thesis closes an existing gap in this context. It concentrates on the questions of democratic theory raised by such laws and fathoms out the reference point of democratic representation in light of the independent significance of the constitutional principle of democracy as well as its political idea of freedom and equality.