NEMAČKI KONCEPT TEORIJE DEJSTVOVANJA USTAVNIH PRAVA NA CIVILNO PRAVO
GERMAN CONCEPT ON THEORY OF THIRD PARTY EFFECT OF CONSTITUTIONAL RIGHTS ON CIVIL LAW

Summary/Abstract: The author presents the main positions of German legal theory which founds the third party effect of constitutional rights in civil law. The civil law was during a long period of time treated as an autonomous part of law, independent from constitutional law (especially constitutional rights). Under the influence of enlarged comprehension of constitutional rights (s. c. objective function of constitutional rights) in German law system, i. e. objective legal principles, that should be valid in whole legal system originally appeared in German legal theories on direct third party effect (unmittelbare Drittwirkung) (the main representative is Nipperdey) and theories on indirect third party effect (mittelbare Drittwirkung) (the main representative is Dürig). By the theory of direct third party effect of constitutional rights in private law the constitutional rights should have direct effect on civil law. That means that no other laws or other additional (interpretative) steps are needed. By indirect third party effect the effects of constitutional rights are achieved by the use and by the proper interpretation of general clauses of private law and indefinite legal notions, whereby it is necessary constantly to take into consideration constitutional rights as value guidelines in a respective society. The indirect third party effect theory was also confirmed by the German Federal Constitutional Court (Bundesverfassungsgerichtshof) in the case of Lüth, in which the court explicitly recognized the effect of »radiation« of constitutional rights on private law.

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