Ann-Christin UhlDas Notvertretungsrecht im Zivilrecht unter besonderer Berücksichtigung medizinischer Notlagen

About this book deutschenglish

German civil law recognises various forms of representation. Their purpose is to ensure that the will of each individual is implemented in legal transactions in a manner that is as favourable to their interests as possible. Compared to cases of voluntary representation, in cases of legal representation by law, conflicts with the right of self-determination of the person being represented often arise. This aspect is particularly sensitive in medical emergencies.

In civil law, the advance health care directive is accorded precedence over legal guardianship. Personal precaution takes precedence over state care.

An important intersection, which is standardised in section 1358 BGB, concerns the right of emergency representation between spouses. This section applies in selected areas of healthcare for a period of up to six months. Despite numerous discussions, the section was introduced into German civil code in the fourth legislative procedure at the beginning of 2023.

This dissertation elaborates on the advantages and disadvantages of the previous rules on representation between spouses effective until the end of 2022 and those that are in effect from 2023 onwards. The text considers the basic structures of these rules in civil law and examines general standards of representation rights in emergency situations. Furthermore, it analyses the extend to which the right of emergency representation between spouses aligns with the concepts of personal precaution and state care. Additionally, a comparative legal analysis of foreign standards is provided, as well as references to the changing values within society.

The work thus presents a critical examination of the necessity of the regulation of section 1358 BGB and assesses assumed benefits to society. Furthermore, it considers alternative concepts and encourages readers to form their own opinion on the concept of emergency representation.