The Latest Development of Taking Theory In Germany

2002 Fiscal Year Final Research Report Summary

• Project/Area Number: 13620006
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Fundamental law
• Research Institution: University of Tokyo
• Principal Investigator: EBIHARA Akio The University of Tokyo, Graduate Schools for Low and Politics, Professor, 大学院・法学政治学研究科, 教授 (00114405)
• Project Period (FY): 2001 – 2002
• Keywords: property right / taking / compensation / German Federal Constitutional Court / Junktion-Clause

Research Abstract

The German Federal Constitutional Court has been developping a new framework for the Constitutional protection of the property rights since its so-called "gravel-gathering" descision in 1981. In accordance with the provision of the Article 14 of the German Fundameatal Law, the Federal Constitutional Court distinguishes the provisions with regard to the contents and limits of the property rights (Article 14 Section 1 Sentense 2) from the taking rules (Article 14 Section 3). According to the Federal Constitutional Court, the content provisions do not change themselves into taking rules, even if restrictions on the property rights by the content provisions are so drastic that the property rights could almost be regarded as being taken. For this case a new category was introduced, which combines content provisions with the duty of compensation.