Zur Zustandsverantwortlichkeit des Eigentümers im Gefahrenabwehrrecht. Maßgeblichkeit des (formellen) zivilrechtlichen Eigentums im Polizeirecht?

Abstract

In order to determine the addressee of police measures to safeguard security by averting danger, all German police laws differentiate between i) the person responsible for acting dangerously (Handlungsverantwortlich) and ii) the person responsible for the dangerous object (Zustandsverantwortlich).

According to the common definition of Zustandsverantwortlich, the police are entitled to take measures against the legal owner or the person exercising physical control over the object at that time. The consensus in the case law and amongst legal scholars assumes that the question who is to be held responsible as the addressee of police measures has to be answered on the basis of civil law.

However, this approach is debatable if the acquisition of an object's ownership does not involve the actual physical possession of the object. This can be seen particularly in the case of title acquisition, or where the object is used as a security, a bank credit, for example, where the legal ownership is transferred to the secured owner (the bank), and the physical possession remains with the original owner – the person providing the security – of the object.

According to the rules of civil law, the secured owner must be regarded as the one legally responsible for the object. However, this interpretation of ownership is not compatible with the wording, meaning and purpose of the regulations regarding the one responsible for the object according to police law, as will be shown in the following article. Contrary to the dominant legal opinion, the definition of ‘the owner’ of an object as it is meant in police law should not to be interpreted in accordance with civil law but rather autonomously.

Therefore, it is not the formal status as an owner according to civil law, but rather the comprehensive assignment of the actual possession of the object that should determine the owner's responsibility in the field of police law. That is to say, it is the substantive owner, and not the formal owner according to civil law, who should fall within the police's definition of ownership.