Comparative Study on the Law of Taking and Compensation

2005 Fiscal Year Final Research Report Summary

• Project/Area Number: 15530004
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Fundamental law
• Research Institution: The University of Tokyo
• Principal Investigator: EBIHARA Akio The University of Tokyo, Graduate Schools for Law and Politics, Professor of Law, 大学院法学政治学研究科, 教授 (00114405)
• Co-Investigator(Kenkyū-buntansha): TERAO Yoshiko The University of Tokyo, Graduate Schools for Law and Politics, Professor of Law, 大学院法学政治学研究科, 教授 (20114431)
• Project Period (FY): 2003 – 2005
• Keywords: property / taking / compensation / German Constitutional / special offer theory / Court

Research Abstract

The German Constitutional Court has been developping a new theory with regard to the constitutional protection of the property right since its decisions on the 15th July, 1981. As its decisions differ basically from the former civil court decisions, German lawyers often speak of a paradigm change in the property right theory. However, the German Constitutional Court had given several decisions to the same effect already in 1960's and 1970's. The first one was so-called "Feldmuehle"-decision in 1962, the second one was in 1971. Professor Lerke Osterloh, who later became judge in the Constitutional Court, argued according to these court decisions that the compensation can be required not only in taking cases, but also in statutory limitations of the property rights.