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Jul 2013 25

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Jul 2013 22

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Jul 2013 16

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DF09_03_Gruenlandschaden_Nachsaat_Wildschaden_72dpiWir Jäger haben viele Feinde:  Jagdgegner, etliche Tierschützer, viele Naturschützer, nicht wenige Politiker – um nur einige zu nennen. Unsere natürlichen Verbündeten sind dage­gen die Jagdgenossenschaften und die Forstleute und Landwirte. Oder sollten das jeden­falls sein, wenn da nicht ein leidiges Problem wäre: der Wildschaden.

Unser heimisches Wild ist ein Kulturgut und seine Hege ist eine gesamtgesellschaftliche Aufgabe. Aber diese Hege eines gesunden und artenreichen, dem Biotop angepassten Wildbestandes soll eben auch die Beeinträchtigung der ordnungsgemäßen Land- und Forstwirtschaft, insbesondere Wildschäden, möglichst vermeiden – § 1 Abs. 2 BJagdG. Noch deutlicher sagt das § 21 Abs. 1: die berechtigten Ansprüche auf Schutz gegen Wild­schäden müssen mit Hilfe der Abschussplanung „voll gewahrt“ werden.

Wildschadensrecht

Wie die Beteiligten – meist Jäger und Landwirt – das bewerkstelligen sollen, sagt uns der Gesetzgeber in den §§ 26, 29, 31 und 32 BJagdG und den Bestimmungen der Landes­jagdgesetze, die fast alle ein besonderes Wildschadensverfahren vorsehen.

Und da liegt der Hase im Pfeffer!

Ich habe bislang in meiner jagdrechtlichen Praxis weit über 100 Wildschadensfälle bear­beitet, und mich zudem bei Kollegen umgehört.  Aus dieser Erfah­rung kann ich sagen: na­hezu jedes Wildschadensverfahren hat (mit Ausnahme der wenigen Gegenden, in denen es eine Wildschadenskasse gibt) letztlich allen Beteiligten nur Ärger, Zeitverlust und Pro­bleme bereitet, hohe Kosten verursacht, und häufig die Atmosphäre zwischen den Partei­en auf lange Zeit hinaus vergiftet.

Das Recht des Wildschadensersatzes birgt, wie jeder sicherlich schon erfahren hat, mehr Fallen und Unannehmlichkeiten als vernünftige Lösungsansätze. Das beginnt schon mit der Meldefrist von einer Woche seit Schadenseintritt bzw. – da entsteht der meiste Streit – seit dem Zeitpunkt, zu dem der Landwirt bei ordnungsgemäßer Wirtschaft den Schaden hätte sehen können; was dazu führen kann, dass er zu bestimmten Zeiten sein Feld jede Wo­che sorgfältig besichtigen muss (Bundesgerichtshof). Die Schadensmeldung muss prä­zise sein. Der Schaden muss von Schalenwild, Fasanen oder Wildkaninchen herrühren. Schä­den während des Verfahrens sind nachzumelden. Sachverständige müssen, können aber oft nicht, älteren von neuerem Schaden unterscheiden können. Schwierigkeiten be­reitet oft auch der Ermittlungszeitpunkt – sofort oder nochmal vor der Ernte – und das dann einzuhalten­de Verfahren, usw. usf., von Problemen wie Mitverschulden und Tragbar­keitsgrenze erst garnicht zu reden.

Landet man dann nach etlichen Wochen vor Gericht, nehmen die Probleme noch zu. Ge­schädigter, Verpflichteter und Sachverständiger haben fast immer völlig divergierende Mei­nungen über die Schadenshöhe, sodass letztlich immer einer, oft der Landwirt, kräftig Fe­dern las­sen muss; oft gewinnt er zwar in einer an sich zufriedenstellenden Höhe, aber die Kosten fressen einen guten Teil des Ergebnisses auf.

Überhaupt: die Kosten!

Der Sachverständige ist meistens nicht allzu teuer, aber sowie es vor Gericht geht, explo­dieren die Kosten. Die Analyse zahlreicher Wildschadensprozesse zeigt:

Bei kleinen Streitwerten bis etwas über € 1.000,00 sind die Kosten des Unterliegens au­ßerordentlich hoch, insbesondere dann, wenn es in die 2. Instanz geht und dort verloren wird. Bei den mittleren Streitwerten zwischen € 1.500,00 und € 5.000,00 liegen sie im Mit­tel immer noch für die erste Instanz bei rund 50%, für die 2. Instanz dann schon bei noch­mals über 50% bis an die 70% des eigentlichen Streitwerts, und erst bei den höheren Streitwerten geht der prozentua­le Kostenanteil zurück, aber dafür sind die Kosten selbst spürbarer. Die Kosten beider In­stanzen übersteigen den Streitwert oder erreichen ihn oft – das Risiko des Prozessverlus­tes ist damit unglaublich hoch!

Wildschadenssachen werden im Prozess häufig nicht oder nur sehr unbefriedigend vergli­chen. Im Gegenteil: es kommen oft noch Komplikationen und damit weitere Kosten hinzu wie Beweisaufnahmen, Privatgutachten u.a.m. Außerdem gibt es bei gerichtlichen Verglei­chen häufig Kostenregelungen, die den „Gewinn“ der einen Seite erheblich mindern, wenn nicht fast „auffressen“, während die unterlegene Partei bereits mehr zahlen muss, als ei­gentlich vorgesehen. Das lässt sich nicht vermeiden, denn irgendwie müssen die in einem gerichtlichen Verfahren aufgelaufenen hohen Kosten verteilt werden. Rechtsschutzversi­cherungen sind selten, Wildschadensversicherungen gibt es nicht.

Die Lösung: Wildschadens-Mediation

Mediation ist ein Verfahren der konstruktiven Konfliktbearbeitung mit dem Ziel, dass die Konfliktparteien selbst mit Unterstützung eines Mediators eine verbindliche Regelung erar­beiten. Die Prinzipien dieses Verfahrens sind

• Freiwilligkeit der Teilnahme

• Offenheit und Informiertheit

• Vertraulichkeit

• Eigenverantwortung und Autonomie

• Kenntnis rechtlicher Grundlagen

Das JUN.i Institut für Jagd und Natur, Energie und Umwelt UG hat dafür ein Verfahren entwickelt, das ungefähr so abläuft (alle weiteren Informationen unter der Rubrik „Recht„, dort „Wildschadens-Mediation):

Die Parteien eines Wildschadensverfahrens beantragen nach dem ersten Schadenster­min, besser nach dem zweiten Termin mit der Behörde, einen Mediationstermin mit dem In­stitut. Hat bereits ein zwei­ter Termin mit Gutachten stattgefunden, wird die Behörde ge­beten, das Verfahren während der Mediation auszusetzen. Bei diesem Mediationstermin versucht der Mediator, die Parteien zu veranlassen, einen für beide Seiten befriedigen­den Vergleich abzuschließen. Dieser wird dann protokolliert und der Schadensbehörde über­sandt, die ihn in ihr Schlussprotokoll auf­nimmt und damit aus dem Vergleich einen Rechts­titel macht.

Die Kosten dieses Verfahrens sind im Vergleich zum normalen Wildschadensverfahren ge­ring: die Mediation kostet im Regelfall erfahrungsgemäß zwischen 500 und 750 EURO, und wird hälftig von beiden Parteien getragen.

Das Wildschadens-Mediationsverfahren ist damit

–                      schneller als ein Gerichtsverfahren

–                      erheblich kostengünstiger (weniger als ein Drittel),

–                      endet fast immer für beide Seiten befriedigend.

Fazit: „So einer auch kämpft, wird er doch nicht gekrönet, er kämpfe denn recht“ (1. Ko­rinther 9:25 und 2. Timotheus 4:8).

Dr. Wolfgang LippsDaumier-Mediation

– Rechtsanwalt –

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