CONSTITUTION AND CIVIL LAW: SOME CONSIDERATIONS ON THE GERMAN APPROACH
CONSTITUTION AND CIVIL LAW: SOME CONSIDERATIONS ON THE GERMAN APPROACH

Summary/Abstract: The influence of constitutional law and especially of fundamental rights on civil law is a development that characterizes the dynamics of a constitution and shows with clarity the special orientation of the German Basic Law to the triad of fundamental values human dignity, freedom and equality. Fundamental rights are qualified not only as subjective rights of defense against state intervention, but also as objective values that radiate throughout the legal order.Originally, based on the text of the Constitution, direct third-party effect, i.e. the direct influence of the Constitution and fundamental rights on civil-law relationships, was seen only in the exceptional case of Article 9 (3) sentence 2 of the Basic Law. At the same time, the so-called indirect third-party effect was found to be decisive for German law. This means that civil laws, in particular their so-called general clauses such as good faith or the prohibition of immoral damage, must be interpreted and applied in the light of fundamental rights. In addition, there is the further development step, namely that due to the value character of the fundamental rights, the so-called duty of the state to protect is recognized, which means that the state must actively protect the values of the fundamental rights through its own laws. In this context, this means that the state must structure civil laws in such a way that they meet the requirements of fundamental rights. In more recent times, there has been an additional development, namely that private individuals as such must also directly observe fundamental rights if they perform special services for society, in particular provide a communication space and ensure society's participation in social life. All in all, the intensification of the protection of fundamental rights by including private individuals directly or indirectly is a sign that the central concern of the dynamically developing constitution is the efficiency of the fundamental order of values of the Basic Law,which centers on human dignity

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