Bücher veröffentlicht von Duncker & Humblot GmbH

»Range and Limits of Trade Secret Protection under Criminal Law. Analysis of the Substantive Legal Trade Secret Protection Using the Example of Criminal Liability of Whistleblowers«: The importance of protecting trade secrets is also enormous outside of civil law. Especially when valuable secrets are lost, claims for damages often have no deterrent effect. Therefore, it is examined whether the GeschGehG offers sufficient protection through criminal law. The criminal offenses contained therein as well as de lege lata and de lege ferenda existing limits are checked - particularly using the example of whistleblowing. Finally, there is a look at the remaining criminal law.

»An Examination of the Relationship between Democracy and Antitrust with References to the Abuse of Market Power in the Digital Economy«: In order to identify a possible connection between democracy and antitrust, the examination sheds light on the background of German antitrust law respectively on the competitive economy. In particular, the Freiburg School and the idea of freedom of competition are taken into account. The democracy of the German constitution is examined with a view to its roots. On the basis of the Facebook decision of the German Federal Court of Justice, it is shown how the results of this thesis can be recognized in jurisprudence.

The disclosure obligations regarding benefits in investment advice and the relationship between supervisory and contract law have been in focus of legal practice since 18 years. The author takes the ruling of the Federal Court of Justice of 3.6.2014 - XI ZR 147/12 as an occasion to examine the differentiation of benefits as well as to dogmatically locate a principle of transparency. She measures the tension between supervisory and contract law in regards of the judicial development of the law.

»Victims ands Institutions in the Special Part of the Criminal Law«: Criminal law reforms with the aim to protect certain professional groups are regularly justified on the basis of »victim protection«. If this concern is investigated, considerable complications arise in criminal law theory. The study elaborates on this using the example of §§ 114 and 188 of the German Criminal Code: Individual victim protection is only relevant in law to the extent that it can be made serviceable for the purposes of the normative order, i.e. the protection of persons and institutions.

»Harmonious Life. Reflection on Determining the Relationship between Happiness and Morality in Connection to Immanuel Kant«: The study investigates the ethical relationship between happiness and morality in Kant, and argues for the following claim: While rejecting an Incompatibility-Thesis, a Dissonance-Thesis and a Coincidence-Thesis Kant defends a dissonant Harmony-Thesis as the most plausible answer to the fundamental ethical question whether and to what extent morality can lead us to happiness. It thus updates the ethical relevance of Kant's autonomous morality for happiness as a good life.

»The Constitutional Framework of Municipal Surveys of Residents and Citizens«: Municipal surveys of residents and citizens also take place in those federal states whose municipal law does not provide a legal basis for this. That is why the thesis examines the constitutional framework of municipal surveys. The study places particular emphasis on the question whether participation in a municipal survey needs to be regarded as the exercise of state power. Based on its results, the thesis drafts a regulatory proposal for the municipal code of Baden-Württemberg.

»Personality Profiles in the GDPR. Permissibility and Tortious Liability«: The survey of our world in zeros and ones does not stop before the people. Digital images of ourselves are generated and commercially exploited. The most sensitive form is the creation of a personality profile. They may not be compatible with data protection law. The question arises as to whether those affected may share in the benefits and be entitled to monetary compensation. The extent to which it is owed following the cornerstone norm Art. 82 (1) GDPR is examined here.

»Fundamentals of Sales«: »Fundamentals of Sales« is published in its fourth edition and is thus regarded as a small standard work on the subject. The guiding principle is a demanding practical orientation without unnecessary academization, but always on the basis of scientific findings. The volume covers all essential contents for success factors in sales and distribution. The target readers are managers in marketing and sales as well as students in further education and at universities of applied sciences and scientific universities with a focus on marketing.

»The Contractual Squeeze-out in the GmbH and in Partnership Law«: The contractual agreement of the squeeze-out of a minority shareholder is of considerable importance in practice due to the increasing fragmentation of shareholder participations in the GmbH and KG. Based on the company law model of §§ 327a ff. AktG, the contractual squeeze-out is aligned with the restrictive BGH case law on free exclusion clauses. A capital share below 10% (GmbH) or 10% (KG) is the permissible upper limit.

»Defective Shareholder Decisions in Insolvency Proceedings. A study of Fundamental Questions of Corporate, Insolvency and Civil Procedural Law«: The dissertation addresses the question of whether, after the opening of an insolvency proceeding, the legality of a shareholder decision can be subject to separate judicial control and against whom such an action is to be brought. The prevailing understanding of the distribution of defendant status after the opening of insolvency proceedings and of the insolvency administrator's standing to bring an action is examined in detail and finally rejected. Instead, a separate solution is presented.

»Cicero's Topica and his Program >de iure civili in artem redigendo

»Reflections on a Positivist Theory of Integration. The Importance of Human Values for the Interpretation of National and European Constitutional Law«: The basic problem of any constitutional interpretation consists in the question of how to properly deal with the tension between intersubjective obligations and the subjectivity of individual values. With recourse to the teachings of Hans Kelsen and Rudolf Smend, it can be concluded how the need for justification of constitutional law should be responded to from a legal perspective, and what follows from this for legal interpretation - also for the constitutional law of the European Union.

»Zu erwähnen, daß nicht nur Bücher, sondern auch Redensarten ihr Schicksal haben, wäre eine Banalität, wenn man damit nur die im Laufe der Zeit sich abspielenden Veränderungen meinte, um durch eine nachträgliche Prognose oder ein geschichtsphilosophisches Horoskop zu zeigen, >wie es kam, daß es kam

»Constitution and War in Constitutional History«: The relationship between constitutional orders and war has been a historical constant. Wars always have effects on the structures and functional forms of legal orders of governmental rule. The contributions in this volume examine these developmental dynamics in historical longitudinal analysis. The perspective ranges from the European High Middle Ages through the Early Modern Period and the beginning of Modernity to the present day of national and international law of war.

»Chairing of General Meetings in a Public Stock Corporation. A Study with Special Consideration of the Digital Transformation of General Meetings«: This work comprehensively examines the complex of topics relating to the chairing of a general meeting in a German public stock corporation and the associated legal problems, in particular the liability risks arising for the chair of the general meeting, and develops various solution concepts on that basis. In this context, the digital transformation of the general meeting and its effects on the legal position of the chairman of the general meeting are examined in detail. Following on from this, the author gives an outlook on the chairing of future virtual general meetings and outlines recommendations for future legislation.

»Avoidance of Multiple Liability of the Cartelist. The Third Party Notice Solution of the Federal Court of Justice«: For a cartelist, there is the risk of having to compensate both his direct and indirect customers for price overcharge damages. The paper examines the third party notice cited by the Federal Court of Justice (Bundesgerichtshof) in the >ORWI< decision to prevent such multiple liability. The paper investigates the background of the law applicable before the 9th GWB amendment came into force and the changes in the legal situation caused by the 9th GWB amendment.

»Errors in the Legislative Process. An Investigation with Special Consideration of a General Error Consequence Doctrine«: For democratic legal systems, the legally institutionalized procedure is a central element. Of paramount importance in this context is the legislative procedure. This thesis analyzes the procedural program of the German constitution and potential procedural errors. In determining the consequences of a procedural error in the conflict between legal certainty and the restoration of legality, the case law of the Federal Constitutional Court is also analyzed.

»Whistleblower Systems in the Light of the EU Directive 2019/1937 with Special Reference to Assurances of Confidentiality«: Insiders often play an important role in solving crimes. Particularly in the area of white-collar crime, where a large number of unknowns can be assumed, law enforcement agencies rely on information from insiders. Whistleblowers have played a significant role in the initial discovery and subsequent clarification of many recent major scandals. However, potential whistleblowers have so far enjoyed only inadequate protection. In this respect, the EU -Whistleblower-Directive should bring improvement and eliminate legal uncertainties.

»The Concept of Benefit within Section 257 German Criminal Code«: The objective elements of the crime of »Aiding after the fact« (Section 257 of the Criminal Code) are very vaguely formulated, especially with regard to the object of the crime, namely benefit. This results in difficulties in distinguishing the offense from aiding, money laundering and other related offenses. This study therefore aims to develop a new definition of benefit and the immediacy criterion limiting the benefit, with the help of the interpretation methods of wording, history of origins, meaning and purpose, and systematics.

»Protection of Honour and Reputation Against Violating Statements in Civil Proceedings«: This work examines the question, which has been subject of controversial discussions for decades, of whether a person affected by offensive or defamatory statements made in court can defend himself or herself against them with corresponding defence claims. In analysing the aforementioned it differentiates between the various roles, for example as party, lawyer, witness, expert or outside third party. It makes suggestions for resolving the conflicting interests and also provides potential procedural solutions.

The Protection against Dismissal Act (KSchG) allocates the responsibility for a personal and behavioural disruption to the employee. In practice, however, it happens that both parties to the employment contract have contributed to the disruption. This paper examines the extent to which the employee bears the risk for the employer's misconduct. The consequences of the employer's responsibility for the right of termination are analyzed. The employer's responsibility does not automatically lead to an exclusion of the right to terminate. However, the employer's responsibility can make it more difficult to pursue the right of termination. The standard for weighing interests must be modified.

Das Recht auf Verteidigerbeistand ist eines der zentralen Beschuldigtenrechte. Damit auch mittellose Beschuldigte Verteidigerbeistand in Anspruch nehmen können, garantieren die Europäische Menschenrechtskonvention, die Grundrechtecharta und das Grundgesetz dem mittellosen Beschuldigten ein Recht auf unentgeltlichen Verteidigerbeistand. In Deutschland wird das Recht auf unentgeltlichen Verteidigerbeistand einfachgesetzlich durch das Institut der notwendigen Verteidigung gewährt, welches im Jahr 2019 zur Umsetzung der Richtlinie (EU) 2016/1919 (sog. Prozesskostenhilfe-Richtlinie) grundlegend reformiert wurde. Die Arbeit geht der Frage nach, ob die einfachgesetzliche Ausgestaltung des Rechts auf unentgeltlichen Verteidigerbeistand den EMRK-, unions- und verfassungsrechtlichen Vorgaben entspricht. Da dies nicht durchgehend der Fall ist, wird sodann rechtsvergleichend die Rechtslage in Österreich dargestellt und untersucht, ob das österreichische Modell des Verfahrenshilfeverteidigers als Lösungsansatz dienen kann.

»The Discharge Resolution in German Stock Corporations - de lege lata/de lege ferenda«: This thesis addresses the question of whether the discharge resolution under German Stock Corporation Law fulfills its function as a controlling tool for shareholders and whether it requires reform. The author concludes that reform is necessary: a denial of discharge with real consequences attached - that is, an actual warning function - would be a more useful tool in the hands of shareholders. After five chapters, which are structured around the current legal situation and reform considerations, the author presents a concise reform proposal.

»The Influence of Experts. An Empirical Investigation Using Criminal Legislation as an Example«: The study deals with the question whether experts, who are consulted by the committees according to § 70 GO BT, have an influence on the penal legislation. For this purpose, 30 participants are interviewed and draft laws, verbatim reports, recommended resolutions and law gazettes are examined. Since the impression is confirmed that the influence of the public hearing on legislation is currently only marginal, the author discusses possible approaches for improvement at the end.

»The Discontinuity Principle in Parliamentary Law«: The discontinuity principle has the effect that at the end of the electoral period the entire parliamentary business - mandates, organizational structure and proceedings - expires and must be renewed. The author shows what shift there has been in the justification of this seemingly radical principle across historical changes, how today's parliamentary practice deals with it, why it is not a mandatory principle, but, in conclusion, deserves to be included in the text of the German constitution.

»Perpetration and Participation in Intentional Collective Decisions in Commercial Enterprises«: The thesis deals with the comparative analysis of the theoretical and normative bases of the criminal involvement regulated in the German and Spanish criminal law systems. The theoretical foundations that have been developed are explained using epistemological and legal-philosophical principles. The forms of general participation, and therefore the involvement of company directors and unqualified outsiders jointly involved in unlawful decision-making, are argued from a normative criminal law doctrine and illustrated by numerous examples.

»Positive And Negative Freedom Of Fundamental Rights«: The terms positive and negative freedom are usually used to summarize the basic legal protection of actions and omissions. Negative freedom is regularly understood as a mirror image of positive freedom. This thesis examines the basic legal protection of behavior understood by these terms, in particular the symmetry of positive and negative freedom. To this end, she analyzes the fundamental rights theoretical premises and fundamental rights dogmatic dimensions of this teaching.

»Ich habe niemals in meinem Leben mit größerer Freude und Genugtuung meinen Dienst getan als unter Ihrer weisen Staatsführung«, schrieb Reichspost- und Verkehrsminister Paul von Eltz-Rübenach, als er sich 1937 überraschend von Hitler wegen dessen Kirchenpolitik trennte. Eine durch Mitverantwortung und Widerstehen markierte vierjährige Karriere des parteilosen Politikers und Technokraten an der Seite des von ihm persönlich verehrten Adolf Hitler endete. Seine zwiespältige Reaktion auf die Ermordung eines hochrangigen Mitarbeiters durch die SS in seinen Amtsräumen führte zu einer Konfrontation mit seiner Kirche und unterstreicht die tiefe Verstrickung des Rechtskatholiken in die nationalsozialistische Diktatur. Der Minister kann heute nicht mehr nur schlicht als »christlicher Konservativer« eingeordnet werden. In den Darstellungen über die Funktionselite in der ersten Hälfte des 20. Jahrhunderts schließt diese politische Biographie eine Lücke.

»The Prohibition of Political Behavior in Sports«: In order to focus on sport, most sports federations declare themselves to be politically neutral and issue regulations based on this that prohibit political behavior - present in the media, for example, in the context of the discussion about the rainbow captain's armband worn by German soccer player Manuel Neuer at the World and European Championships. The thesis examines the historical background as well as the meaning and purpose of these rules and addresses the question of their legality.

»The Consequences of the Nullity of Annual Financial Statements«: The thesis examines the consequences of the nullity of annual financial statements for a corporation and a limited liability company (GmbH) providing those affected by the nullity with security of action and planning. The cases in which the annual financial statement must be restated are identified and it is explained under which circumstances distributed profits must be repaid. In addition, the effect on subsequent financial statements is shown.