Wer ist das Gesetz und wie geht man damit um?

Das Gesetz ist der Souverän in unserem Staat! Es hat nach Jahrtausenden der Willkürherrschaft durch von „Gott“ eingesetzte Monarchen und selbst ernannte Diktatoren die demokratische Macht übernommen. Was es mit ihm auf sich hat, muss wissen, wer es, wie Sie, als Jurastudent mit ihm aufnehmen will.

Die drei wichtigsten Gegenstände zum Jurastudium sind nun einmal für den Jurastudenten: Gesetze, Gesetze, Gesetze. Während Moses noch mit 10 Gesetzen auskam, benötigt der Jurastudent das Zigfache, allein im BGB 2385 Paragraphen! Aber seien Sie beruhigt: Hinter der Vielheit der Gesetze steht eine Ordnung, die einfacher ist als ihre Vielheit. Alle Gesetze sind nämlich miteinander verwandt. Wir werden die Verwandtschaft gleich kennen lernen.

Der Student muss das Gesetz und den Umgang mit ihm schnell erlernen, denn die Gesetze sind die Zentralgestirne, um die seine Ausbildung, sein Examen und sein späterer Beruf trabantengleich kreisen. Nicht die Natur, nicht Gott, nicht die Vernunft schaffen Recht, Recht schafft das Gesetz! Das Gesetz ist Anfang und Ende jeder juristischen Arbeit. Gerade das erste Semester muss die handwerklichen Fertigkeiten im Umgang mit ihm vermitteln. Es liefert den Text, die folgenden erst den Kommentar. Leider wird in den Vorlesungen an den Hochschulen im 1. Semester nicht selten sofort der Kommentar geliefert.

Wurden im Anfang der Menschheit diese „Gesetze“ noch kraft Gewohnheitsrechts von Generation zu Generation mündlich „tradiert“, so änderte sich das mit der Schriftsprache und in der Neuzeit mit der Erfindung der Buchdruckkunst gewaltig. Das „Gesetzbuch“ war das Buch, das alle bisherigen Gewohnheitsrechte ersetzte. Jeder hatte das Recht, es aufzuschlagen, man musste es nur lesen können. Alles war darin enthalten. Die „Rechte“ schrumpften zusammen auf papierene Paragraphen zwischen zwei Buchdeckeln. Buch und Gesetz waren eins! – Aber in unserer modernen Zeit leider nur für einen Moment. Buch und Gesetz leben nämlich nur jeweils eine juristische Sekunde zusammen. Danach driften sie wieder auseinander. Das Gesetz bleibt im Buch, seine Bedeutung zieht weiter. Immer wenn ein Gesetz eine Diskussion beenden soll, schafft sie gerade durch diese Operation eine neue Diskussion. Das Gesetz lässt sich eben durch ein Gesetzbuch zwar konservieren, aber nicht stillstellen! Schon am Tag des Inkrafttretens treten nämlich Deuter, Urteiler, Ausleger, Erklärer in Gestalt von Richtern, Rechtspflegern, Anwälten und Professoren auf den Plan und fügen dem jeweiligen Gesetz-„Buch“ Aufsätze, Urteile, Beschlüsse, Kommentare hinzu, die sich zu neuen „Büchern“ auswachsen, die man denn die „Juristische Literatur“ nennt und aus denen irgendwann wieder neue Gesetze werden.

Alle Gesetze stammen aus dem Bereich der sog. normativen Gesetze. Bei den normativen (lat.: norma, Richtlinie; frei übersetzt: als Richtschnur dienend) Gesetzen unterscheidet man zwischen:

  • juristischen Gesetzen und

  • moralischen Gesetzen.

In beiden Arten wird eine „Richtschnur“ für menschliches Verhalten formuliert, zu deren Einhaltung die Menschen verpflichtet sind. Während bei „juristischen Gesetzen“ nur das äußere Verhalten vorgeschrieben wird, beziehen sich „moralische Gesetze“ auf die innere Haltung gegenüber den Handlungskategorien von „gut“ und „böse“. Verstöße gegen juristische Gesetze werden von staatlichen Instanzen geahndet. Die Einhaltung moralischer Gesetze ist staatlich nicht erzwingbar. Die juristischen Gesetze gehören zu dem großen Bereich des Rechts, moralische zu dem der Sitte und Ethik.

Jedes Gesetz hat einen doppelten Körper: einen sichtbaren und einen unsichtbaren. Den sichtbaren repräsentiert der Wortlaut und erschließt sich durch die Auslegung, der unsichtbare weist auf seinen Zweck, das télos, hin. Sie müssen sich zunächst immer für die Seiten der Gesetze interessieren, die sie Ihnen Wort für Wort zuwenden, aber sehr bald auch für die, die sie Ihnen hinter den Wörtern verbergen. In der Klausur haben Sie nur dieses „Chamäleon Gesetz“ zur Hand, das nimmt Ihnen niemand weg! Es ist der Anker für Ihr Gedächtnis. „Ich habe die Lösung der Klausur nicht im Gesetz gefunden! Sie muss doch irgendwo stehen!“ Sie haben das Gesetz nicht richtig gelesen! Und nur, wer schon beim Lernen mit dem Gesetz arbeitet, findet sich auch in der Klausur darin gut zurecht. Bevor Sie ein neues Gesetz oder ein neues Rechtsinstitut angehen, abstrahieren Sie es zunächst von allen momentan unwichtigen Details und Nebensächlichkeiten. Lesen Sie dann mit dem Zeigefinger mehrmals nur das Gesetz – Wort für Wort! Ziehen Sie alles Unwichtige ab! Steigen Sie ein ins Gesetz! Öffnen Sie das Gesetz mit dem „Konditionalprogramm“! Wenn-Dann! Präparieren Sie die einzelnen Bausteine der Tatbestandsmerkmale heraus! Was will das Gesetz regeln? – Was ist sein télos (Zweck)? – Was seine Tatbestandsmerkmale? – Was seine Rechtsfolge?

Man sieht sich im Bannkreis dieses Themas „Gesetze“ oft gezwungen, auf Offenkundiges hinzuweisen: Der Umgang mit der Hauptliteratur im Jurastudium, das sind nämlich die Gesetze, wird am Anfang zu wenig geübt! Die Hilfsliteratur, die Lehrbücher und Kommentare, haben leider oft schon zu Beginn der juristischen Ausbildung viel zu schnell die Flughoheit über den juristischen Lehr- und Lernstühlen erobert. Der Student lernt sein Ur-Handwerkszeug, das Gesetz, nicht richtig kennen! Die Arbeit am Gesetz und mit dem Gesetz wird in der Ausbildung vernachlässigt! Nicht von der Literatur zum Gesetz, sondern vom Gesetz zur Literatur muss der Ausbildungsweg fortschreiten. Zunächst müssen

  • die „ipsissima verba“, die „ureigenen Worte“, des Gesetzes, seine Tatbestandsmerkmale, geklärt werden,

  • sein programmatischer Aufbau studiert,

  • seine Auslegung trainiert

  • und der Umgang mit ihnen im Gutachten am Fall geübt werden,

ehe man sich in juristischen Theorien und Meinungsstreitereien verliert.

Lassen Sie deshalb das Gesetz immer einsatzbereit und einsprungbereit neben sich aufgeschlagen liegen, und lesen Sie jedes Gesetz nach! Lesen Sie es stets im Stile absoluter Gewissenhaftigkeit, besser noch: pedantischer Kleingeistkrämerei! Es lohnt sich wirklich!

Diese Gesetze fallen nun alle nicht vom Himmel! Sie sind von Menschen gemacht in einem komplizierten, verfassungsmäßig vorgeschriebenen Verfahren. Ihr Geburtsakt ist im Grundgesetz genauestens festgelegt und das „Kind Gesetz“ hat viele Väter und Mütter, die jedes Wort wohlüberlegt „gesetzt“ haben.

Ja, und was ist eigentlich das sich unserem Blick gleichermaßen darbietende wie leider auch immer wieder entziehende Wesen dieser Gesetze? – Sie sind die Führer im gesellschaftlichen, wirtschaftlichen und politischen Leben. Sie sind der Mittelpunkt unseres rechtsstaatlich-gesellschaftlichen Koordinatensystems.

Das wichtigste Wesensmerkmal für die Führung der Gesellschaft durch die Gesetze ist das ihnen eingeborene Konditionalprogramm, einfacher ausgedrückt: ihr „Wenn-Dann-Grundsatz“. Wer ihn verstanden hat, hat schon viel verstanden! Er ist das schlagende Herz jedes Gesetzes!

Wenn der Voraussetzungsteil vorliegt, dann tritt der Rechtsfolgenteil in Kraft.

Das Wort Konditionalprogramm setzt sich zusammen aus den Wörtern „konditional“ (lat.: bedingend) und „Programm“ (griech.: vorgesehener Ablauf, Konzeption). Aus der Funktion des Gesetzes, Regeln zu „setzen“, um Konflikte zu vermeiden oder zu beheben, die im Zusammenleben der Menschen eintreten können, folgt zwingend diese „bedingende Konzeption“ des Gesetzes. Deshalb müssen sie so sein, wie sie sind, denn Gesetze zielen als die Instrumente zur Steuerung von Recht immer auf die Begründung von Rechtsfolgen ab.

Diese fundamentale Erkenntnis des Konditionalprogramms lässt sich gut an dem einprägsamen Gebiet des Strafrechts verdeutlichen. Sie wissen schon, dass sich die rechtlichen Voraussetzungen für eine Bestrafung aus den Tatbeständen des besonderen Teils des Strafgesetzbuches ergeben. Die Grundstruktur sämtlicher dieser Paragraphen lautet immer gleich: „Wenn du das und das tust oder unterlässt, dann wirst du mit dem und dem bestraft.“ Um dieses „Das und Das“ geht es in der Lehre vom Tatbestand, in der Lehre der Rechtswidrigkeit und in der Lehre der Schuld, um das „Dem und Dem“ bei den Rechtsfolgen der Freiheitsstrafe oder Geldstrafe. Aber genauso spielt sich dieses Programm im BGB ab: „Wenn Du das und das tust, dann kannst Du das und das verlangen“ oder „dann bist Du zu dem und dem verpflichtet“.

Einige Beispiele:

  • Moni beklaut ihre Freundin Steffi.
  • Max missachtet mit seinem Auto die Vorfahrt und verletzt Moritz schwer.
  • Susanne kauft bei Bäcker Kraus Brötchen und bezahlt nicht.

Ein solcher Konflikt wird nun in der Weise behoben, dass in einem anzuwendenden Rechtssatz, hier:

  • § 242 StGB gegen Moni,
  • § 823 Abs. 1 BGB für Moritz gegen Max,
  • § 433 Abs. 2 BGB für Bäcker Kraus gegen Susanne,

ein Konditionalprogramm enthalten ist, das für den Fall des Eintritts eines bestimmten Tatbestandes (1. Teil: Voraussetzungsteil oder Wenn-Teil) eine ausgleichende Rechtsfolge als Konsequenz „setzt“ (2. Teil: Rechtsfolgeteil oder Dann-Teil). „Rechtsfolge“ ist das, was aus dem „Recht“, konkret aus dem Einzelgesetz, „folgt“, was also die Rechtsordnung ihren rechtsunterworfenen Bürgern zu be-„folgen“ aufgibt.

Jeder „Fall“ – bald jede Ihrer Klausuren eben – wird am Ende immer eine Fragestellung bereit halten, die auf Bestehen oder Nichtbestehen einer solchen Rechtsfolge gerichtet ist (sonst wäre es eben kein „Fall“ geworden).

  • Die Fragestellung für Moni könnte lauten: „Habe ich mich strafbar gemacht?“
  • Die Fragestellung für Moritz lautete: „Kann ich von Max Schadenersatz i.H.v. 1.000 € verlangen?“
  • Die Fragestellung für Bäcker Kraus könnte lauten: „Kann ich von Susanne 1 € verlangen?“

Für den rechtsanwendenden Studenten ist „Recht“ ja immer dann gegeben, wenn die Rechtsfolgen für die Fragen:

  • Hat sich T strafbar gemacht?“,

  • Kann A von B eine Leistung verlangen?

  • Kann sich X mit einer Verfassungsbeschwerde gegen das staatliche Handeln wehren?“

aus den Voraussetzungen eines Gesetzes des StGB, des BGB oder der Verfassung ausgelöst werden können. Das ist dann der Fall, wenn die Voraussetzungen eines Straftatbestands des StGB, einer Anspruchsgrundlage des BGB oder einer Rechtsverletzung des Grundgesetzes erfüllt sind.

Es ist Aufgabe und Zweck der Rechtsordnung, das menschliche Zusammenleben zu regeln. Das konkrete Mittel zu diesem Zweck der Regelung ist die einzelne Rechtsnorm, das Gesetz. Es stellt die Voraussetzungen auf und enthält eine Rechtsfolge, die sich auf das Verhalten von Personen bezieht, wobei insbesondere Gebote und Verbote normiert werden. Ein Teil dieser Rechtsordnung ist das StGB, ein anderer das BGB.

Band II Seite 42

  • Wenn Moni den Tatbestand des Diebstahls rechtswidrig und schuldhaft erfüllt hat (Deliktsaufbau: Tatbestand, Rechtswidrigkeit, Schuld) – dann wird sie bestraft. Antwortnorm ist § 242 StGB.
  • Wenn Max den Moritz rechtswidrig und schuldhaft am Körper verletzt hat (Tatbestandsvoraussetzungen) – dann muss er die entstandenen Kosten bezahlen. Antwortnorm ist § 823 Abs. 1 BGB.
  • Wenn Susanne mit Bäcker Kraus einen wirksamen Kaufvertrag abgeschlossen hat – dann muss sie den vereinbarten Kaufpreis zahlen. Antwortnorm ist § 433 Abs. 2 BGB.

Wenn als erste Voraussetzung für das Vorliegen eines Straftatbestandes die haargenaue Erfüllung sämtlicher Tatbestandsmerkmale des besonderen Teils des Strafgesetzbuches und für das Vorliegen einer Anspruchsgrundlage im BGB die hundertprozentige Erfüllung sämtlicher Anspruchsvoraussetzungen erforderlich ist, so kann das selbstverständlich nicht heißen, dass der Tatbestand im Einzelnen die konkrete Straftat der konkreten Täterin „Moni“ beschreiben muss oder die Anspruchsgrundlage genau den zu entscheidenden zivilrechtlichen Fall für „Moritz“ oder „Bäcker Kraus“ festlegt.

  • § 242 StGB (Diebstahl) lautet nicht:

Wenn Moni der Steffi die Brieftasche aus der Handtasche zieht, um das Geld zu verjubeln, dann wird sie mit Gefängnis bestraft.“

Statt „Moni“ steht im Gesetz: „wer“; statt „Steffi“: „einem anderen“; statt „Steffis Brieftasche“ heißt es: „eine fremde bewegliche Sache“; statt „aus der Handtasche zieht“: „wegnimmt“; statt „um es zu verjubeln“ lautet es: „in der Absicht, sie sich rechtswidrig zuzueignen“.

§ 823 Abs. 1 BGB lautet nicht: „Wenn Max den Moritz durch Missachtung der Vorfahrt schwer verletzt, dann muss er Krankenhauskosten und Verdienstausfall in Höhe von 1.000 € bezahlen“.

Statt „Max“ heißt es abstrakt: „wer“; statt „Moritz“ „einen anderen“; statt „schwer verletzt“ heißt es: „den Körper und die Gesundheit … verletzt“; statt „durch Missachtung der Vorfahrt“ steht geschrieben: „vorsätzlich oder fahrlässig“ und „widerrecht-lich“; statt „Krankenhauskosten und Verdienstausfall“ heißt es: „Ersatz des daraus entstehenden Schadens“.

  • § 433 Abs. 2 BGB lautet nicht: „Wenn Susanne bei Bäcker Kraus zwei Brötchen kauft, dann muss sie 1  € zahlen.“

Statt „Susanne“ steht im Gesetz: „der Käufer“; statt „Bäcker Kraus“: der „Verkäufer“; statt „zwei Brötchen“: „eine Sache“; statt „1 €“: „den Kaufpreis“; statt „dann muss sie zahlen“: „ist verpflichtet, den Kaufpreis zu zahlen“.

Kein Gesetzgeber könnte sämtliche Fälle, die das Leben so schreibt, vorausdenken – immer wieder müsste er sich durch die Wirklichkeit korrigieren lassen. Also wählte man für die Rechtsnormen sowohl auf der Voraussetzungs- als auch auf der Rechtsfolgenseite abstrakte und generalisierende Begriffe, da Gesetze als allgemeine Regeln notwendig von den konkreten Umständen des Einzelfalles (deshalb abstrakt) und den handelnden Personen (deshalb generalisierend) absehen müssen. Es gibt kein Gesetz, das gerade und genau für den konkreten Fall „Moni“, „Moritz“ oder „Bäcker Kraus“ geschaffen ist. Allerdings gibt es verschiedene Grade von Abstraktheit. Unsere modernen Gesetze zeichnen sich durch eine starke Abstraktion aus. Aus dieser notwendigen abstrakt-generalisie-renden Begrifflichkeit der Normen folgt, dass die Voraussetzungen des Gesetzes zur Anwendung auf den konkreten „Fall“ ausgelegt, entfaltet und definiert werden müssen. Diese Arbeit ist eine Hauptaufgabe des Juristen und wir werden sie gleich kennen lernen. Der Preis für die Abstraktheit ist eben, dass kein Gesetz so genau formuliert werden kann, dass sich damit jeder Fall, der irgendwann auftaucht, ohne weiteres lösen lässt. Das konkrete Leben bricht immer wieder mit „Monis“, „Susannes“ und „Mäxen“ in die abstrakten Gesetze ein. Das Recht hat ständig und ausschließlich mit einbrechendem Leben zu tun – mit Fällen. Sie, ausschließlich sie, füttern den täglichen Entscheidungsapparat für die Rechtsprechung in den Gerichten. Dabei sind Recht und Gesetz Gefangene der jeweiligen Zeit. Der Schwerpunkt der Rechtsentwicklung liegt weder in der Gesetzgebung, noch in der Rechtswissenschaft, noch in der Rechtsprechung, sondern in der pulsierenden Gesellschaft selbst. Und unsere Gesetze reagieren und regieren immer mit dem gleichen Programm: Wenn – dann! Wenn – dann! Wenn – dann; ihrem Konditionalprogramm.

Paragraphen

Rechtsfolgen

§ 433 Abs. 2

§ 433 Abs. 1

§ 1

§ 488 Abs. 1 S. 2

§§ 985, 986

§ 604

§ 1601

§ 823 Abs. 1

§ 929 S. 1

Wenn …, dann musst du den Kaufpreis bezahlen

Wenn …, dann musst du die Ware übereignen

Wenn …, dann bist du rechtsfähig

Wenn …, dann musst du das Darlehen zurückzahlen

Wenn …, dann musst du die bewegliche Sache herausgeben

Wenn …, dann musst du die entliehene Sache zurückgeben

Wenn …, dann musst du den Unterhalt bezahlen

Wenn …, dann musst du Schadenersatz leisten

Wenn …, dann wirst du Eigentümer einer beweglichen Sache

Die Grundlagen für den Umgang mit der Gesetzesarbeit müssen Sie im ersten Semester legen, da Sie von der Schule her mit einem solchen Umgang nicht vertraut sind. Nur Mut! Es ist kein Kampf gegen Windmühlenflügel, Sie müssen den Kampf mit dem Gesetz am Gesetz gewinnen. Malen Sie sich immer aus, welcher Fall hinter der gesetzlichen Regelung steht, welcher „Normalfall“ für Sie für den Gesetzgeber Pate gestanden hat, und wie sein Konditionalprogramm aussieht.

Wenn Ihr Professor sagen sollte, das Gesetz sei noch zu kompliziert für Sie und zu abstrakt, lückenhaft, Sie sollten es beiseite legen, er müsse es Ihnen erklären und nur er könne das, glauben Sie ihm nicht. Lesen Sie es nach! Der Gesetzgeber wird oft zu Unrecht als unpräzise, zu kurz, zu eng, zu lang, zu breit oder zu unsystematisch formulierend gescholten. Er kann oft nicht anders als Gestalter vielfältiger Sachverhalte und Interessen als abstrakt und generalisierend zu formulieren. Das sollten Ihnen Ihre Professoren öfter klar machen. Stellen Sie die Gesetze nicht immer in Frage und springen Sie nicht gleich in die Sekundärliteratur. Das Gesetz hat Schwächen, aber mehr anerkennungswürdige Stärken, die den Schwächen meist überlegen sind. Es muss immer Ihr erster Ansprechpartner sein bei der Beantwortung sämtlicher Rechtsfragen. Die Gesetzeskenntnis, ihr folgend das Gesetzesverständnis, und die ständige Neugier, neue Gesetze in ihren Details zu ergründen, sind mehr wert als alles juristische Wissen.

Man kann die Gesetze auch noch auf eine andere Art als mit dem Dietrich des Konditionalprogramms öffnen! Dazu bedient man sich einer List in Form einer Seziertechnik.

Diese „Gesetzesentschlüsselungstechnik“ ist raffiniert einfach und einfach raffiniert. Mit ihr schaffen Sie es, den stummen Sprachwerken die Zunge zu lösen. Wenn Sie die äußerst komprimierten, häufig mehrere Alternativen enthaltenden Gesetzesformulierungen in ihren jeweiligen Voraussetzungs-Rechtsfolgen-Segmenten nicht auf Anhieb verstehen, in denen manchmal auch noch neben der Regel die Ausnahme sprachlich eingewoben ist, „sezieren“ Sie die Paragraphenungeheuer! Alphabetisieren Sie die Normen auf ein Ihnen verständliches Sprachniveau herunter, und Sie werden sehen, die Gesetze verlieren schlagartig an Kompliziertheit. Sie haben einen Paragraphen erst dann richtig begriffen, wenn Sie ihn in seine kleinsten Einzelteile zerlegen und wieder zusammenbauen können.

Machen Sie bitte mit und schlagen Sie die genannten Paragraphen auf!

  • Als erstes Beispiel möge der § 181 BGB dienen, über den insoweit Einigkeit besteht, als dass ihn auf Anhieb niemand versteht. Er wird bald unausweichlich auf Sie zukommen. Lesen Sie bitte diesen Paragraphen! Machen Sie jetzt mit mir „mehr“ aus dem Paragraphen! Aus eins machen wir drei! Wir spielen jetzt Gesetzgeber und formulieren ihn um, indem wir seine Alternativen zu neuen Paragraphen bündeln, „§§ 181a, 181b, 181c BGB“, und ihn so neu gestalten:

  • § 181 a: Ein Vertreter kann im Namen des Vertretenen mit sich im eigenen Namen ein Rechtsgeschäft nicht vornehmen (Insichgeschäft).

  • § 181 b: Ein Vertreter kann im Namen des Vertretenen mit sich als Vertreter eines Dritten ein Rechtsgeschäft nicht vornehmen (Mehrfachvertretung).

  • § 181 c: In Abweichung der §§ 181 a, 181 b kann ein Vertreter selbstkontrahieren oder eine Mehrfachvertretung doch vornehmen, wenn

1. es ihm gestattet ist oder

2. das Rechtsgeschäft ausschließlich in der Erfüllung einer Verbindlichkeit besteht oder

3. es rechtlich lediglich vorteilhaft ist (ständige Rechtsprechung).

Die Rechtsfolge ist übrigens trotz seines Wortlautes „kann nicht“ nicht die Nichtigkeit des Rechtsgeschäfts, sondern entsprechend § 177 BGB schwebende Unwirksamkeit.

  • Ein zweites Beispiel aus dem Strafrecht: Wenn Sie im Strafrecht zu § 267 StGB (Urkundenfälschung) gelangen, ein gesetzgeberisches Meisterwerk an sprachlicher Dichte, nehmen Sie sich zunächst genügend Zeit, diese Norm zu studieren. Versuchen Sie einmal, aus den drei Alternativen dieses Straftatbestandes drei selbständige Paragraphen zu texten. Schnell und mit kreativer Entdeckerfreude haben Sie die fiktiven „§§ 267 a, 267 b, 267 c StGB“ erschlossen.

  • § 267 a: Wer zur Täuschung im Rechtsverkehr eine unechte Urkunde herstellt, wird bestraft.

  • § 267 b: Wer zur Täuschung im Rechtsverkehr eine echte Urkunde verfälscht, wird bestraft.

  • § 267 c: Wer zur Täuschung im Rechtsverkehr eine unechte oder verfälschte Urkunde gebraucht, wird bestraft.

Nunmehr stellen Sie die Tatbestandsmerkmalspakete zusammen und arbeiten die Gemeinsamkeiten und Unterschiede heraus:

§ 267 a: Urkunde – zur Täuschung im Rechtsverkehr – unechte herstellen.

§ 267 b: Urkunde – zur Täuschung im Rechtsverkehr – echte verfälschen.

§ 267 c: Urkunde – zur Täuschung im Rechtsverkehr – unechte oder verfälschte gebrauchen.

  • Ein letztes Beispiel aus dem Sachenrecht des BGB: Zur Überprüfung der gelernten „Seziertechnik“ wollen wir jetzt § 873 Abs. 1 BGB in die „§§ 873 a, 873 b, 873 c, 873 d und 873 e BGB“ sezieren. Wir erarbeiten ganz stur für jede „verkeilte“ Alternative das jeweilige sezierte Konditionalprogramm! Erst mal lesen den § 873 Abs. 1 BGB! Und jetzt geht es los:

  • § 873 a: „Zur Übertragung des Eigentums an einem Grundstück ist die Einigung des Berechtigten und des anderen Teils über den Eintritt der Rechtsänderung und die Eintragung der Rechtsänderung in das Grundbuch erforderlich.“

  • § 873 b:„Zur Belastung eines Grundstücks mit einem Rechte ist die Einigung … und die Eintragung … erforderlich.“

  • § 873 c:„Zur Übertragung eines belastenden Rechtes (vgl. § 873 b) ist die Einigung … und die Eintragung … erforderlich.“

  • § 873 d: „Zur Belastung eines belastenden Rechtes (vgl. § 873 b) ist die Einigung … und die Eintragung … erforderlich.“

  • § 873 e: „Die Paragraphen 873 a bis 873 e gelten nicht, wenn das Gesetz ein anderes vorschreibt.“

Sie stellen nach den drei Beispielen jetzt gleich viel besser als vorher fest, was die Alternativen der Gesetze sind, was sie verbindet und was sie trennt. Sie sehen, wie sich die sezierten Normen von selbst öffnen und ihren Inhalt preisgeben. In Zukunft können Sie mit der Seziertechnik und dem Konditionalprogramm selbst die Gesetze auseinandernehmen, aufschlüsseln oder umprogrammieren, kurz und klein stutzen oder anwachsen lassen. Der Charme dieser Gesetzesaufschlüsselungstechnik besteht darin, dass sie so einfach und immer funktioniert.

451 Gedanken zu „Wer ist das Gesetz und wie geht man damit um?“

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