Archiv für Februar 2014

Feb 2014 27

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Feb 2014 27

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Feb 2014 27

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Feb 2014 25

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Feb 2014 25

Der „entgeltliche unentgeltliche Begehungsschein“ und der „Hegebeitrag“


GeldDas neue Jagdjahr rückt heran, und deshalb weist das Jagdblog darauf hin, dass damit nicht nur zahlreiche Jagdpachten auf den Markt kommen, sondern auch die Zahl der „unseriösen“ Angebote steige, mit denen „unentgeltliche Begehungsscheine“, also Jagderlaubnisse, gegen einen „Hegebeitrag“ im Internet und der Jagdpresse angeboten werden. Häufig wird auch nicht von einem Hegebeitrag gesprochen, sondern es werden andere Bedingungen für die Erteilung der angeblich „unentgeltlichen“ Jagderlaubnis genannt – etwa die Verpflichtung zum Bau jagdlicher Einrichtungen, die Verpflichtung zur Übernahme von Wildschaden, die Beteiligung an Revierkosten, die Übernahme von Kosten der Fütterung und Kirrung, und was dergleichen erfindungsreiche Gestaltungen mehr sind.

Das Jagdblog meint, diese Anbieter hätten keine Ahnung vom Jagdrecht – was häufig stimmen dürfte – und seien unseriös; man solle also nicht darauf hereinfallen. Das ist im Ergebnis richtig, aber ganz so einfach ist es allerdings nicht. Was also ist wirklich ein „unentgeltlicher Begehungsschein“?

Die Jagdgesetze

regeln fast ausschließlich nur den entgeltlichen Begehungsschein, der uns hier nicht beschäftigen soll – alle Jagdgesetze aber (bis auf Berlin und Niedersachsen) unterscheiden ausdrücklich zwischen entgeltlichen und unentgeltlichen Jagderlaubnissen. Zum unentgeltlichen Begehungsschein fehlen gesetzliche Regelungen weitgehend.

Rechtlich geklärt ist, dass die Inhaber von Begehungsscheinen (entgeltlich und unentgeltlich) jedenfalls kein eigenes Jagdausübungsrecht haben, sondern ihnen ist vom Jagdausübungsberechtigten nur gestattet, an der Jagdausübung des Berechtigten teilzunehmen; einige Landesjagdgesetze sagen das ausdrücklich (z. B. Mecklenburg-Vorpommern in § 13 (1) Satz 2, ferner Nordrhein-Westfalen, Rheinland-Pfalz, Schleswig-Holstein und Thüringen). Ebenso klar ist, dass ein Jagdgast, also ein Inhaber einer Jagderlaubnis, Wilderei begeht, wenn er seine ihm erteilte Erlaubnis überschreitet. Andererseits kann ihm gestattet werden, sich das von ihm erlegte Wild anzueignen, ohne dass er dadurch etwa zum Unterpächter würde.

Jede Jagderlaubnis bedarf nach den auch im Jagdpachtrecht geltenden §§ 540, 581 (2) BGB der Zustimmung des Verpächters, die häufig schon im Jagdpachtvertrag geregelt ist. Fehlt sie, ist allerdings der Begehungsschein nicht ohne weiteres nichtig, denn die fehlende Zustimmung regelt nur das Rechtsverhältnis zwischen Verpächter und Pächter und kann z.B. zur fristlosen Kündigung oder anderen Rechtsfolgen für den Pächter führen; davon kann dann natürlich wieder die Fortdauer der Jagderlaubnis betroffen sein.

Ungültig können Jagderlaubnisse dann sein, wenn das jeweilige Landesgesetz bestimmt, dass Pächterhöchstgrenzen einzuhalten sind und mit Begehungsscheinen überschritten werden können, und ebenso bestimmen einige Landesjagdgesetze, dass die Erteilung von Erlaubnisscheinen aus Gründen der Hege behördlich beschränkt oder untersagt werden kann – z. B. Baden-Württemberg § 10 (3), Brandenburg §16 (5), Mecklenburg-Vorpommern § 13 (4) und Schleswig-Holstein § 12 (4).

Und grundsätzlich müssen Jagderlaubnisse von allen Revierpächtern des betreffenden Reviers erteilt werden, oder der Erteilende muss dazu von allen anderen bevollmächtigt sein, sonst sind sie jedenfalls den anderen gegenüber unwirksam und führen gegebenenfalls zur Wilderei.

Unentgeltliche Jagderlaubnisse

Der Begriff „unentgeltlich“ wird im Zivilrecht häufig verwendet. Entgelt bezeichnet dabei immer die in einem Vertrag vereinbarte Gegenleistung. Ein entgeltlicher Vertrag ist also insbesondere ein gegenseitiger Vertrag, bei dem Leistung und Gegenleistung in einem Gegenseitigkeitsverhältnis (Synallagma) stehen. Die Bindung kann aber auch auf andere Weise hergestellt werden, etwa durch Vereinbarung einer Bedingung. Der Begriff der Entgeltlichkeit ist damit weiter als der der Gegenseitigkeit. Der unentgeltliche Begehungsschein ist auch nicht immer ein Vertrag, sondern kann auch ein rein tatsächliches Gefälligkeitsverhältnis sein, wenn ihm der rechtliche Bindungswille fehlt.

Damit ist klar: die Jagderlaubnis ist nur dann „unentgeltlich“, wenn keine Gegenleistung für gerade die Einräumung der Möglichkeit zu jagen vereinbart oder auch nur verlangt wird; die Gegenleistung muss dabei nicht in Geld bestehen, sondern kann auch Sachleistungen beinhalten (Hochsitzbau) oder die Übernahme von Verpflichtungen (Beteiligung am Wildschaden). Entscheidend ist immer, ob die „Gegenleistung nach dem Willen auch nur einer Partei, meist des Jagdpächters, nur deshalb verlangt wird, weil sonst die Jagdmöglichkeit nicht gewährt wird.

Der „Hegebeitragist immer eine gewollte Gegenleistung; wird er verlangt, handelt es sich also automatisch um eine entgeltliche Jagderlaubnis, und für die gelten dann die strengen Regeln des BJagdG und der Landesjagdgesetze (Gleichstellung mit dem Pachtvertrag, also Schriftform, Anzeige bei der UJB usw.). Nur ganz untergeordnete Leistungen des Begehungsscheininhabers dürften, je nach Einzelfall, nicht als Gegenleistung angesehen werden, z.B. freiwillige Hilfe beim Hochsitzbau und dergleichen. Keine Gegenleistung liegt wahrscheinlich vor, – was aber noch ungeklärt und nicht in jedem Fall zweifelsfrei ist – wenn der Begehungsscheininhaber etwas für andere Leistungen als die Jagdmöglichkeit bezahlt, z. B. sich verpflichtet, Wildbret abzunehmen, und das auch bezahlt.

Die entgeltlich gewordene Jagderlaubnis kann dennoch zwischen dem Jagdpächter und dem Begehungsscheininhaber zivilrechtlich wirksam sein, auch wenn der Jagdpächter durch ihre Erteilung einerseits und die Missachtung der pachtvertraglichen Regeln andererseits rechtswidrig handelt und gegenüber dem Verpächter zur Unterlassung und ggfls. zum Schadensersatz verpflichtet wäre und vielleicht auch die Kündigung riskiert.

Probleme

entstehen dann aber auch für den Erlaubnisinhaber. Denn in einigen Jagdgesetzen bedarf der entgeltliche Erlaubnisschein zu seiner Wirksamkeit der Genehmigung durch die UJB (z.B. Hessen nach § 12 (3) für Jagderlaubnisse über 12 Monate). Ohne diese Genehmigung ist die Jagderlaubnis unwirksam. Alle entgeltlichen Jagderlaubnisse müssen ferner der UJB wenigstens angezeigt werden. Geschieht das, dürfen die Begehungsscheininhaber vor Ablauf von drei Wochen nach der Anzeige (§ 12 Abs. 4 BJagdG) nicht zur Jagd gehen; wird also gar nicht angezeigt, darf der Begehungsscheininhaber gar nicht jagen, sonst begeht er eine Ordnungswidrigkeit (z. B. § 39 (1) Nr. 3 i. V. m. § 12 (4) BJagdG und dazu die Landesjagdgesetze) und riskiert seinen Jagdschein! Ob der Pächter, der wissentlich einen entgeltlichen Begehungsschein als unentgeltlich verkauft, gegenüber seinem vielleicht unbedarften Interessenten Betrug begeht, ist dann immer eine Frage des Einzelfalles und der Beweislage und für den Interessenten nicht wirklich weiterführend, aber gefährlich ist das schon.dagobert

Fazit

Hände weg vom „entgeltlichen unentgeltlichen Begehungsschein“!

Dr. Wolfgang Lipps

 

7 Kommentare

Feb 2014 25

This includes supplements and herbal products


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Feb 2014 24

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