Can a thief legally use force to prevent you from take your property back, in Germany In this comment on another stack a user claims: Even in thoroughly socialist places such as e.g. Germany where criminals have more rights than lawful people (see e.g. BGB 858 and 859 which not only say that you (the owner) aren't allowed to take back your property from a "possessor" (thief) against the thief's will, but the thief is even entitled to use physical force against you) I found this hard to believe so I checked the mentioned paragraph § 859 BGB online. Section 2 states: Wird eine bewegliche Sache dem Besitzer mittels verbotener Eigenmacht weggenommen, so darf er sie dem auf frischer Tat betroffenen oder verfolgten Täter mit Gewalt wieder abnehmen. (I used google tranlate for this because I lack the vocabulary to translate a juristic text) If a movable thing is taken away from the possessor by means of a unlawful interference of one's own, then he may forcibly remove it from the perpetrator who has been affected or persecuted in the act. However § 858 BGB says in section 2: Der durch verbotene Eigenmacht erlangte Besitz ist fehlerhaft. Die Fehlerhaftigkeit muss der Nachfolger im Besitz gegen sich gelten lassen, wenn er Erbe des Besitzers ist oder die Fehlerhaftigkeit des Besitzes seines Vorgängers bei dem Erwerb kennt. The possession obtained by unlawful interference is faulty. The defective property must be held against the successor in possession, if he is the heir of the owner or knows the defectiveness of the possession of his predecessor in the acquisition. I say because an object came into a persons possession by unlawful interference, § 859 BGB does not apply to that person because it only applies when the possession is not faulty. So it grants me as the lawful owner to get my things back by force, if necessary but does not grant the same right to the thief although he is technically the new owner of the object. However the user claimed in another comment Besitzer is the one who is currently holding the item in his hands (so ,e.g. a thief coming out of your house), and this is orthogonal to being the legitimate owner. And yes, the law thus explicitly allows the thief (who then is the Besitzer) to exercise force against you, if you try to reclaim your stolen goods. Which is just what I said So the user is interpreting it as it doesn't matter how you got in possession of an object, the only thing that matters is that you have it right now and therefore § 859 BGB does apply to you too. To me his interpretation does not make much sense. Especially because it would allow people to steal from each other in an endless loop. However maybe I'm just missing something important here. I'm a laymen when it comes to law, so maybe I'm just not getting it.
The Law The relevant sections of the German Civil Code (BGB) for posession and protection of posession of movable things (not land) are (semi-official translation): Section 858 Unlawful interference with possession (1) A person who, against the will of the possessor, deprives the possessor of possession or interferes with the possessor’s possession acts, except where the deprivation or the interference is permitted by law, unlawfully (unlawful interference with possession). Section 859 Self-help by the possessor (1) The possessor may use force to defend himself against unlawful interference. (2) If a movable thing is taken away from the possessor by unlawful interference, the possessor may use force to remove it from the interferer who is caught in the act or pursued. The posessor (Besitzer) is the one who has the actual control of the thing (§ 854 I BGB), e.g. holds it in his/her hand. (There are also some more complex forms of posession, but they are not relevant here.) Ownership (Eigentum) is totally seperated of that. Often the owner posseses the thing, but also often the possessor is not the owner, but e.g. a tenant. If someone (e.g. a thief) takes away a thing from the posessor, the one acts in unlawful interference with possession (verbotene Eigenmacht, § 858 I BGB). While the thief tries to take the thing away, the posessor may use force to defend himself, § 859 I BGB. After the thief obtained actual control he/she is the new posessor. The old posessor ends to be the posessor. This only reflects on the factual situation, not on legitimacy. The old posessor now may use force to get the thing back from the new posessor (thief), if the thief is caught in the act or pursued, § 859 II BGB. It is controversial which time frame this implies. There is at least one judgement that accepts the discovery after 30 min. If the old posessor gets the (posession of the) thing back through force, he/she does not act in unlawful interference with possession, because it is explicitly allowed in § 859 II BGB. So the thief is not allowed to "steal back" although he/she was posessor (for a short time). If the old posessor acts too late, the new posessor has the full defense rights against force of the old posessor. The old posessor has to begin judical action. He/she has a right of restitution, § 861 BGB. Reasons One of the most important principles of (German) civil law is the Monopoly on violence of the state (Gewaltmonopol des Staates). Normaly only the state is allowed to use physical force (for the enforcement of the law). Only in special cases, e.g. a clear situation or the necessity of immediate action, the affected is allowed to use force for defense. In all other cases he/she has to go to court and in the end let the state use force for him/her. After a theft there are two people claiming to be the legitime posessor and one who has the thing. No one knows (without further investigation) who is right. So everything should stay as it is until a court decides. If a thief is caught in the act or pursued, the situation is much more clear. So the old posessor may use force and has not to wait for a court. If the thougth thief is the legitime posessor, this may be clarified by the courts afterwards. source: Hanns Prütting: Sachenrecht, 2017, § 13 Every German law student learns this in his second year. So there is plenty of teaching literature (and probably websites) on this topic.
In Germany, there is no statutory offense of “breaking in”. Instead, break-ins are (depending on the nature of the crime) prosecuted as trespassing (Hausfriedensbruch, § 123 StGB), criminal damage (Sachbeschädigung, § 303 StGB) and/or theft (Diebstahl, § 242 StGB). (Some cases may fit additonal statutory offenses, e. g. tampering with an electronic lock can be computer fraud (Computerbetrug, § 263a StGB) and hurting someone can be robbery (Raub, § 249 StGB) and/or personal injury (Körperverletzung, § 223 StGB).) This means: If your brother breaks the lock, then that's vandalism. If your brother walks in (without authorization), it's trespassing and if your brother steals your stuff, it's stealing. On top of that, since your brother is living in the same household as you, breaking into your room may also be considered domestic violence. The violence protection act (Gewaltschutzgesetz) is very harsh when it comes to domestic violence: The offender can be ordered by court to hand over their home to the victim and to stay away from the home. This means that if your brother breaks into your room, your brother may be removed from the house by court order. Non-compliance with a court order issued under the Gewaltschutzgesetz (e. g. your brother tries to show up at your house after he was ordered to stay away), can be prosecuted under civil and(!) penal law. You can read the English translation of the German penal code (STrafgesetzbuch, StGB) here (although I prefer to use German because all translations at gesetze-im-internet.de tend to be low quality): https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html And the Violence protection act is here (unfortunately untranslated): https://www.gesetze-im-internet.de/gewschg/BJNR351310001.html
The most minimal elements of theft are: An unauthorised taking or use of another's property; and An intent to permanently deprive that person of that property or its use You've authorised the fee as per the terms of service that you agreed to. If you didn't read the terms of service, you are deemed to have read it. As the first element is not satisifed, no, it's not theft. As to what that fee is for, it's not really a question of law, but because they're a business and they are entitled to recover the costs of providing products or services and make a profit when you use their products or services, I fairly confidently would say that they're charging you to recover the costs of providing you their products and services as well as to make a profit from your use of their products and services. But again, not a question of law.
We are talking about larceny and larceny &amp; destruction of property in the two cases. So at the minimum, there are more laws that apply. But what are the laws? Florida names its Larceny statute... Theft: 812.014 Theft.— (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. Destroying someone's else property in Florida is in the statute on Criminal Mischief: 806.13 Criminal mischief; penalties; penalty for minor.— (1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto. So, yes, you would additionally get the criminal mischief charge, but... that only grants monetary damages of 250 USD plus the damages done to the items for first timers, but it can become upgraded to a felony in the third degree - which has a maximum limit of 5 years. Note that damaging items in the course of theft is specifically an aggravating factor for the theft charge, if grand theft is combined with property damage of 1000 USD and more. A bicycle costing between 750 and 5000 USD is grand theft, felony in the third degree according to 812.014.(2)(c)1. This is also the 5 years limit. One could get both sentences... but still only sit 5 years, because often sentences are served concurrently, only rarely consecutively. So, no, you do not necessarily commit a higher offense just for breaking the lock - you'd need to have a 1000 USD damage for that - but you most certainly commit additional offenses that can result in a higher verdict in the end.
I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise.
The technical difference is that theft is illegal, and adverse possession is not. I'm assuming you're talking about why there's a difference. Historically, there are two basic reasons for adverse possession. First, land lasts for a very long time, and a sale is generally invalid unless the seller has valid title. That means that no property title is secure, because someone could always come out of the woodwork with a claim that your great-great-great-grandfather threw their great-great-great-grandfather off the land 300 years ago. Not only is all land title insecure, but you might not even be able to defend such a claim (do you know the history of your land for the past 300 years?) Adverse possession, then, is a way to let people know no one else can claim title to their land based on something so long ago no one remembers properly. Even with modern public land registries (which did not always exist), this situation can still arise if someone mistakenly believes that they own some land and starts using it. The second reason is that if someone isn't doing anything with the land for a long time, and someone else is doing something useful with it, the government would rather give it to the person doing something useful. People who lose property through adverse possession are unwilling to take the extremely minor steps needed to keep their property. It tends to move land from totally nonproductive users to productive users, and then keeps those nonproductive users from kicking out people who improved the land and keeping the improvements. The notion that leaving something for too long removes your right to claim it is not restricted to real estate. Almost everything in law has a time limit of some sort.
Law Enforcement can return a firearm to its owner so long as the owner is not prohibited from possessing firearms, as defined in 18 U.S.C. § 922(g). A person can demand the return of property seized as evidence, if both: The property is not needed for evidence in a criminal trial. The property is not &quot;contraband&quot; (meaning illegal for the claimant to possess). If Law Enforcement does not agree to return the property then the owner can petition a Court of jurisdiction for an order that it be returned.
According to regulation 373/1974 § 4(4) (which I presume is still in force due being amended in 2020), confiscated items must be returned by the end of Unterricht (unsure of exact translation, either end of class or school day): Gegenstände, die die Sicherheit gefährden oder den Schulbetrieb stören, dürfen vom Schüler nicht mitgebracht werden. Derartige Gegenstände sind dem Lehrer auf Verlangen zu übergeben. Abgenommene Gegenstände sind nach Beendigung des Unterrichtes bzw. der Schulveranstaltung oder der schulbezogenen Veranstaltung dem Schüler zurückzugeben, sofern es sich nicht um sicherheitsgefährdende Gegenstände handelt. Sicherheitsgefährdende Gegenstände dürfen nur dem Erziehungsberechtigten – sofern der Schüler volljährig ist, diesem – ausgefolgt werden, wenn deren Besitz nicht sonstigen Rechtsvorschriften widerspricht. This translates to (translation by @MechMK1): Objects, which are a threat to safety or disturb the school proceedings, may not be brought along by the student. Such objects have to be handed over to the teacher upon request. Such taken objects have to be returned after the end of the end of the lesson or the course, or the school-related event, as long as the object is not a threat to safety. Objects which are a threat to safety must only be handed over to the parents or legal guardians - or, if the student is of age, the student - if the ownership of said object is not unlawful. Thanks to Vienna lawyer Dr. Johannes Öhlböck who wrote an article pointing me to the regulation. I'm not fluent in German and I can't find an explicit definition of Unterricht in the associated laws. Google currently translates it as lesson, but Duden has a broader definition close to &quot;scheduled, regular instruction by a teacher&quot; and the Vienna city website claims cell phones can kept until end of day. Interestingly during research I found a Deutsche Telekom (T-Mobile) article stating that in 2017, a Berlin administrative court allowed confiscation of a cell phone through a weekend.