Human Rights Protection in Multipolar Legal Relationships

Human rights protection in Germany is of a quite different nature in private law than in administrative and criminal law. l Criminal law and administrative law arc determined by the principle of direct vertical application of fundamental rights. In these areas of law the state on the one hand and the individual on the other hand face each other in a relationship of superand subordination. The funda·· mental rights situation here is dear: the individual is protected by the funciamen·· tal rights, while according to Article [(3) Basic Law ['he state is bOLLnd by them, whether it acts as legislature, executive or judiciary.2 More complex to answer, however, is the question how fundamental rights affect private law, for in private law a relationship of super~ and subordination does not cxist. Instead, private law is determined by individuals acting on a level of co-equality. Both of the individuals in this relationship can rely on their funda·· mental rights. So in this relationship il is a debatable point against whom the funcbmental rights have an effect or who is restricted by them. According to prevailing legal doctrine and established jurisprudencc) funda-· mental rights do not restrict the individual) as it is the individual who is protected