Public property is a special form of property, which can be found in socialist legal systems with a dichotomous concept of property. The concept of public property is partially considered misleading because neither the people is the owner of the public property, nor to the people as a whole ( "everyone" ), but only single Beliehenen entitled the right to use state-owned assets.
As people's property (hereinafter nichtsozialistischem sense) sometimes things are named, where absolutely no private property ( air to breathe, sunlight, wind, etc. ) can be justified or are removed from the right-hand traffic. So should not be built in Brazil and Tunisia, for example, the beach or claimed from a hotel alone. In ancient times " was " the commons, the village people, so it could get there to pasture his cattle without the poorer farmers had to pay to the rich peasants or the church for that. A similar understanding prevailed among the Indians of North America, who knew no private ownership of land (see History of the First Nations # Basic cultural misunderstandings ).
- 2.4.1 Property Law cleanup
- 2.4.2 Settlement of Open Property Issues
The purpose of public property
Economically, the people's property from the traditional public property that can generate the public the means of production, forests, beaches, seas, roads, schools, hospitals, etc. is different, in that, when public property public authorities is not first and foremost wants to use self- ownership or wants to exclude this from private use at all, but by the awarding of rights to citizens and businesses with a foreign management in the by law, Verleihungsakt or prescribed by a planning authority seeks limits (so-called feeding a social use). In order to secure the uses made by the citizens and businesses that are often stipulated not only mandatory use ratios for foreign management, but given rights in rem, which embody the total economic value of the land and economically take the place of private ownership of land. Those rights of use of land in line because of their lack of marketability and the prescribed form and manner of the use of more state fief as rights in rem within the meaning of the Civil Code. To underscore the protection of investment often grows to the right of the set up pursuant to the right of use by the civil or structural works or plantations the operation not the public sector. The beneficial owner acquires rather then a special property ( building property ), although such plants or plantations are connected to the property. The public sector can usually sell the property neither in private nor in favor of this strain with private mortgages.
The burden of the public property in rem rights to use the building or planting with other people's property, the disposal and lending ban undermine the economic intrinsic value of people's assets completely. The economic value of the land is given rather by the in rem right to use the building and property that occurs economically to the point of land ownership. The motivation for the establishment of the people's property arose from the ideological conviction of communism, which sees the private ownership of the means of production as the basis of exploitation and rejects this.
From the legal structure (not from the economic function) the property of the people strongly resembles a feudal law, the law of the family estates and the Familienfideikommisse to.
In the GDR
In the 1980s, about 98 percent of the total productive assets of the GDR was nationally owned, including about 8000 people -owned enterprises (VEB) and combines. Were completely converted into public ownership in this sense in the GDR mineral resources, mines, water, natural resources, power plants, banks, insurance, transport, roads, aviation, shipping, postal and telecommunications services and, ultimately, all industrial enterprises. 50 % of the properties were in public ownership. In addition there were other, often agricultural areas which were the subject other socialist property.
For the emergence of the public property in the GDR in particular, the following categories can be distinguished:
- Even in the Soviet zone of occupation by the SMAD confiscated assets of fascists, war criminals and landowners (over 100 ha) were in Saxony by referendum, in the other countries by analogous laws enacted to public property.
- Were assets of the public sector, the municipalities, counties and countries, the people of property have been assigned.
- Nationally-owned assets resulting from current economic activity.
- Natural resources have been defined as public property.
- The ability of so-called Republic of refugees was drafted, to the extent it has not been sold by government agencies to third parties.
- Later expropriation of medium-sized businesses and private interests were initially forced on State assistance which the state secured the majority, and conducted subsequent forced expulsion of the previous owner. Was the basis for the withdrawal of company assets, a decision of the Ministers of the GDR of 9 July 1972.
- Cold expropriations. Frequent cases were that owners of apartment buildings as a result of the state rent control have been unable to cost-covering rents more and therefore had to surrender to the state the property;
- Unfair machinations in which the previous owner gave up his ownership positions using will forced outwards only apparently voluntary.
- And immovable property were transferred by buying into public property.
Until the founding of the GDR in 1949 half of all means of production in economics and public property had already been transferred. The spokesman of the " Office for the Protection of public property " in the Saxon state parliament showed up in March 1949
" Not convinced that all human beings the people's property is already dear to my heart, that they begin to protect it. [ ... ] One of the biggest factors for damage occurring in the SOEs, is the neglect of the people [ ... ], in the great distance they still have today against the property of the people. "
In September 1952, the Politburo of the SED adopted the "Law on the protection of public property and other public property " VESchG. It went through the People's Chamber, by acclamation, and entered into force on 6 October 1952. In violation of the law (such as " theft, embezzlement or other work aside from state and cooperative property or property of social organizations " ) threatened prison sentences of up to 25 years. Practiced by the courts was a minimum sentence of one year imprisonment, even at Bagatellvergehen. The text was the workers even plugged into the pay packets. A year later put Attorney General Ernst Melsheimer his " success statistics " before - an increase in the process in just half a year from 218 to 2391 and the people involved from 283 to 3572 (see chart above). GDR Minister of Justice Max Fechner made for an immediate transfer of the convicted person in the prisons:
" This is especially true for the rapid implementation of the criminal proceedings for crimes after the VESchG, which contribute significantly to summary punishment by increasing the householder and deterrent effect of the law and to develop awareness of the sanctity of public property for our workers. "
Legal characteristics of public property
In the GDR, the people's property was a specially configured content form of state property. Official owner were there all people. It formed together with the cooperative ownership and the ownership society organizations socialist property. In the area of law of the GDR next to the socialist property, the personal property was still introduced. The dichotomous ownership of the GDR was in contrast to the unitary concept of property in the Civil Code of the German Reich and the Federal Republic of Germany. The epitome of the things that could be suitable objects of national property was broader than in accordance with the concept of ownership of the Civil Code. Public property could both matters ( real estate, movables ), rights and other items (eg plants ) consist.
To use the legal power, the object of which was the right to property, process, transform, destroy, dispose of, encumber, and the like was severely restricted by law. The people's property could only be used in accordance with state plans. Because the state alone the people's property was no sense that he had to grant third parties rights: the use of public property have been granted, especially state-owned enterprises, combines, economic governing bodies, socialist cooperatives and social organizations and citizens.
Use by citizens
The rulers of the GDR considered it useful to create by ratios of private initiative, more homes and the like, and to better satisfy the recreational needs of the working people. The GDR represented the citizens therefore rights to state-owned land for certain well- prescribed usages available: by state awarding a right of use for the building and personal use of private homes; through the use of contract to manage forestry and agriculturally used land too small horticultural purposes, for recreation and leisure activities. At times, could use rights are only granted to certain social strata: by regulation on the financing of housing construction workers from March 4, 1954 only to workers and employees was possible, for example the ceremony.
The difficulty was that the citizen would have no economic incentive to make on state-owned land investment from his personal assets (equity ) because of the added value created by the investment of the property would only succumbed to the State as the owner. Such investment protection is very easy to ensure, through private ownership of land, which the GDR tried to avoid ideological reasons but. The right technical solution was found in the building property. The on state-owned land, which was awarded for the construction of their home, erected buildings, plants and plantations ( not the land itself! ) Were the personal property of the beneficial owner ( § 288 Section 4 of the Civil Code DDR ). For the announcement of the building property a separate building land register folio has been created. Weekend houses and other buildings that were used for recreation, leisure or similar personal needs of citizens and have been built in the exercise of a contractual right of use were also independent of the ownership of the land owned by the beneficial owner, unless otherwise agreed ( § 296 para 1 CC - DDR). For weekend homes and other buildings, however, no public register was performed. The splitting of the economic entity " land and buildings " into several components which are the subject of specific legislation were each separately, led to a separation of property in "Upper ownership " and " use of property." This was all the more so that the license has been awarded to state-owned land for home purposes for an unlimited period and thus fell apart the property permanently.
The building property could be sold with government approval and inherited. Disposals were allowed only to persons who were not owners of their home. At times, the law of succession, the building ownership was concerning limited: so could under the law on the awarding of rights to state-owned land on 14 December 1970, use right may only be passed on to someone who was not the owner of another own home, wanted to use the home for personal residential purposes and GDR citizens was (§ 5 para 2 NRG ). The ownership of buildings, plants and plantations could be burdened with mortgages ( § 452 paragraph 1 sentence 2 of the Civil Code DDR ).
Event of improper use of the competent organ of the State could withdraw the right to use, with the result that the use of the property of the citizen to buildings, plants and planting merges back into public ownership.
Because the people's property, no scheduled use power more involved because of the award of the right to use the citizens, but also dispositions of the law were excluded because it was on such land to an "empty " right. As with the introduction of the market economy the people's property was returned to its available capacity and so was given a market value, had to choose between the land owner (former public property ) and the property owner, a compensation to be established and the uniform law of land including the essential parts are assembled like building again (see: thing right adjustment).
A similar arrangement existed in the allocation of rights to private ownership for home purposes.
Use by enterprises, public institutions and bodies
There was also the possibility that companies, government bodies and institutions state-owned land and not expropriated private property used by contract. The established under such a usage contract buildings and facilities were independent from the ownership of the land public property. Were carried out on a contractual use of real estate major expansion and conservation measures, was according to the value increase a state-owned joint ownership ( § 459 para 1 CC - DDR).
These regulations were accordingly for use by socialist cooperatives and social organizations.
The people's property was inalienable; in particular was a conversion of public property not possible in personal property. It was unbeleihbar and could not be loaded in any other way. It was criminally protected in a special way. The idea behind the people's property was that socially useful things, especially the means of production and infrastructure facilities are not the well-being of individuals, but to serve the public good should.
Criticism of public property
The people's property had no outstanding ability for its unavailability. Because people's property could not be used as collateral, it adversely affects the borrowing capacity of the GDR economy sustainable.
The public property is often accused to have been only property of the people a sham. Rather, it was an ideologically disguised term for state property. In fact, many people in the GDR have not identified with its public property. Furthermore, the control went out on the people's property by the state, which was not identical with the entire nation because of the claim to leadership of the SED. However, an equation is state ownership, not absolutely true, especially since the latter can be negotiable.
The East German leadership, the legal concerns, the situation was quite aware, so that the people's property later return or compensation claims in the course of a held- in the 1960s for possible German unification could not be sold because of the possibility.
During and after the reunification
Public property as a legal form did not occur in the West German law and was not introduced to the German reunification. Even with DDR Act of 17 June 1990 ( Trust Law ) was the nationally-owned assets to be privatized or transferred to municipalities, counties or countries. To this end, by GDR Law of 28 June ( 1st Civil Law Amendment Act ) repealed the content restrictions ( attachment and load ban, prohibition of sale ). Thus the people's property has become a conventional state property. By conditioning IB ( Operations), Chapter III Subject B Section 2 No. 1 of the Unification Treaty was the draft Law, a sixth part added (Art. 230-237 BGB ), which contains inter temporary conflict of laws, whose purpose is to decide which legal positions in the new Lander be assessed under the Civil Code or under GDR law. With the date of accession found on the property, the provisions of the Civil Code. However, were building, buildings, equipment, planting or institutions where there was a use of property, further special legal capacity. It could even even after the reunification of property rights, regardless of land ownership be justified on such components of property, provided that the right of use has already passed on such a property or a contractual license before accession.
Property law cleanup
This legal situation proved to be an extraordinary obstacle to investment in the new federal states. Acquired an investor a plot, which was formerly nationally owned, he could not be sure that failed to buildings, buildings, equipment, or facilities plantings separate rights. The statement of rights to buildings under often stayed; Rights in rest homes, etc. was not registered. Because of the beneficial owner of citizens could not require the announcement in a public register in accordance with the GDR Land Registry Law, could not be attributed in the way of a good-faith acquisition by the investor to the owner use the loss on one side also. The aim should therefore was a detachment of the rights to essential components of land. This thing right collection was performed by the Property Law Amendment Act from 1 October 1994 in the so-called dual system, ie the use of the owner was the land on which he had no ownership under GDR law, buying up half the market value or the use of property in a can be converted thirty -year ground lease. The law of property cleanup was in a dispute case first place in an upstream mandatory notarial conciliation. The aim of the law of property cleanup was at the BGB introduce the ownership again to restore the eligibility as collateral and marketability of the land property and to distribute the damage caused by the market economy, land values evenly between land owner and Terms owners.
Settlement of Open Property Issues
The Settlement of Open Property Issues on the other hand concerns the problem of the extent to which former owners who were expropriated without compensation by the Soviet Union under its occupation regime or later of the GDR, should be restored to their previous ownership positions. This was a balance of interests to seek between the former owners and the current land owners and owners use. Article 21 et seq of the Unification Treaty regulates the issues concerning the former shift from public ownership to the GDR, the Law on the Settlement of Open Property Issues 31 August 1990 normalized the other cases of expropriation by the GDR (eg Republic of refugees). However, under Article 41 of the Unification Treaty, the return of property that was expropriated by the Soviet Union is excluded. The last scheme has been confirmed by the Federal Constitutional Court on the grounds despite heavy criticism that these expropriations were not based on German but Soviet sovereignty and are therefore not attributable to the German state. In the proceedings before the Federal Constitutional Court, the then Secretary of State Kastrup stated that the USSR did the irreversibility of the expropriation of their occupation to a condition for reunification. However, the arguments against the return of the Alteigentums later turned out to be false allegations.
There was agreement between the CDU and the SPD about the fact that the proceeds from the sale of land, which is still in the public sector were to rescind or compensation for previously uncompensated expropriations should serve. Since the Federal Republic of Germany was the legal successor of GDR, they had to reckon with rehabilitation actions in the context of their own legal system anyway. While the SPD while expected proceeds of at least 500 billion marks for the state budget, the then reigning CDU came the demands of the dispossessed former owners or their descendants after and provided with the action " wrong GDR " for the return of the objects or, in exceptional cases, for adequate compensation. In addition, machinery and entire businesses were sold relatively inexpensive. Overall, the state made with the privatization actions no profit, but 270 billion Deutsche Mark loss ( Inherited Debt Fund). The from the GDR to the Federal Republic emigrated or fled expropriated former owners had been compensated decades ago in the Federal Republic. In order to restitution sign, the former owners or their heirs had to pay those fees to the state.