Religious society under public law

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A religious society under public law is a legal form of organization of a religious community in German state church law . It represents a special form or its own type of the - otherwise state, rarely non- state - German public corporation (Abbreviations: Kdö.R. , KdöR , Körperd.ö.R. , KöR or K.ö.R. ) . It is said that these religious communities have corporate status .

purpose

Religious societies under public law are intended to offer an effective form of joint practice of religion and thus serve to realize religious freedom . In addition, the legal form under public law makes it clear that the Basic Law regards the religious cultivation exercised by them as a public task without making them part of the state ( Art. 140 GG in conjunction with Art. 137 (1) WRV).

Legal person

Religious societies under public law ( Art. 140 GG in conjunction with Art. 137 (5) WRV) create a membership-organized legal person (corporation) that is independent of the change in its members , its statutes and therefore in particular the organ and membership relationships belong to public law . To a certain extent, individually controversial, they can act under public law. Religious societies under public law have comprehensive legal capacity . By merging with others, associations can arise that are also corporations under public law (e.g. Evangelical Church in Germany , EKD) and, by virtue of organizational authority, similar subdivisions ( church districts , parishes , etc.) as well as institutions and foundations under public law (e.g. Evangelical Foundation Care Schönau ), to which the further statements apply accordingly.

Religious societies under public law are not corporations under public law like state self-governing bodies ( municipalities , districts , chambers). The separation of church and state in Germany rules out religious communities from being part of public administration . Although, as a corporation under public law, they can use various forms of action that are usually only available to the state, they are not part of the state, but part of society as well as all other associations of citizens. Religious communities under public law are therefore also comprehensively entitled to fundamental rights . In contrast to the state, you can therefore invoke fundamental rights . On the other hand, they are just as little bound by basic rights, which are defensive rights against the state , as are all other citizens.

Religious societies under public law are not subject to any state legal supervision due to their church's right to self-determination . State church supervision was represented and practiced in the Weimar Republic as a correlate to public law status (" correlate theory "), but it was also viewed as a violation of the church's right to self-determination and the separation of state and church.

According to their self-image, religious societies under public law are not conclusively defined by their state church law status. The basic order of the Baden regional church states in Art. 57, Paragraph 1: "The regional church is a corporation under ecclesiastical law and has the rights of a corporation under public law according to state law."

right

Religious and ideological communities that are corporations have a public law status of their own. The special rights that are granted to the communities include, for example, the right to collect taxes ( church tax ) from their members ( Art. 140 GG in conjunction with Art. m. Art. 137 para. 6 WRV), the employer's ability (possibility to structure the legal status of their employees ( pastors , church officials ) in accordance with public law), the legislative authority (for own internal law, e.g. regulations on internal church organization and membership) as well as the right to create church public things through dedication.

Religious societies under public law as corporations under public law can act not only under private law, but also under public law . For example, the ringing of liturgical bells (in contrast to the ringing of bells to indicate the time) is subject to public law and cannot be attacked before the civil courts, but only before the administrative courts .

The authority to organize enables the establishment, amalgamation and abolition of subdivisions, foundations and institutions. The state collection of church tax is regulated by simple law.

In order to protect the negative religious freedom of the members, whose membership in this way has legal consequences in the state, the states have passed church exit laws, because not all religious communities allow exit. In this way, religious societies under public law are not required to no longer regard the resigned as a member. That is their own affair and protected by the church's right to self-determination; especially since freedom of religion only obliges the state, but not religious communities under public law. Only in the state area may no legal consequences be attached to membership , regardless of the membership regulation under canon law.

In addition, religious societies under public law have a number of individual privileges (“ bundles of privileges ”). such as reductions in taxes, duties and fees, the right to have a say in committees, protection under criminal law for titles and official titles , protection from enforcement or consideration of the interests of religious practice in urban land use planning and monument protection . This expresses the public importance that the Basic Law attaches to the cultivation of religion. These legal consequences of the constitution under public law are not guaranteed in detail in the Basic Law, but are granted by ordinary law. The constitution therefore does not prevent changes.

According to the case law of the Federal Constitutional Court , religious societies under public law are in any case not capable of bankruptcy . It has not yet been finally clarified whether this also applies to religious communities under private law with regard to the church's right to self-determination.

Rights independent of the legal form

Many of the rights of religious communities are not linked to a legal form under public law. It is not a prerequisite for a community to appear as a religious community or to make use of the rights otherwise granted to religious communities. Rights regardless of the legal form are e.g. B. the operation of facilities such as kindergartens or old people's homes , the construction of buildings that serve religious purposes or access to the provision of religious instruction in accordance with Article 7, Paragraph 3 of the Basic Law . Representation in public and state bodies (e.g. broadcasting councils ) is often done by naming the respective religious community as a socially relevant group.

requirements

The legal form of a corporation under public law are those religious communities (and also non-religious ideological communities ) that were already recognized as such before the Weimar Constitution (WRV) came into force ( Art. 140 GG in conjunction with Art. 137 para. 5 p. 1 WRV ). The legal status of the two large Christian churches and other so-called born or well-established religious communities that was found when the Weimar Constitution was passed was thus retained. The pre-constitutional religious communities as a corporation under public law include, above all, the Protestant churches (regional churches, parishes, associations), the Roman Catholic Church (dioceses, parishes, associations, in some cases also religious orders), individual Jewish communities, the Old Catholics and Old Lutherans , the Baptists and the Mennonites.

Other religious societies are to be granted the same rights at their request if their constitution and the number of their members guarantee the duration of the term (so-called approved corporations or newly-incorporated corporations ; Art. 140 GG in conjunction with Art. 137 Para. 5 sentence 2 WRV). If several such religious societies under public law come together to form an association, then this association is also a corporation under public law ( Art. 140 GG in conjunction with Art. 137 (5) sentence 3 WRV).

Some religious communities prefer to organize themselves under private law or even see this as a special quality mark. Other religious communities, on the other hand, want to take advantage of the opportunities offered by public-law organization. Therefore, courts had to repeatedly deal with the requirements for recognition as a religious community under public law. According to the case law of the Federal Constitutional Court, there is no basic right to recognition, but Art. 140 GG i. V. m. Art. 137 (5) sentence 2 WRV is a subjective public right, i.e. a claim if the requirements for recognition are met. The respective religious community (= religious society) must submit an application for recognition to the responsible state body. The regulation of the recognition procedure is incumbent on the executive of the individual federal states ( association competence ; Art. 140 GG in conjunction with Art. 137 (8) WRV). The Federal Constitutional Court confirmed this in its decision of June 30, 2015. The federal states have taken different paths. For example, North Rhine-Westphalia passed the “Corporate Status Act” in September 2014, which regulates the procedure in more detail.

Written requirements: guarantee of duration

The constitution expressly requires that such religious societies under public law “offer a guarantee of duration through their constitution and the number of their members”. The constitution is not to be understood in the sense of a legal order (statute, etc.), but means the entire condition of the religious community, its “constitution”. The past is less important than a sound forecast. With this prerequisite, short-lived trend religions, the importance of which is rapidly disappearing, are to be eliminated.

Unwritten requirements: Compliance with the law

In addition to the text of the standard, the Federal Constitutional Court demands “legal compliance” of religious societies under public law as an unwritten requirement for recognition. This includes respect for the legal system, the basic principles of the Basic Law covered by the guarantee of eternity and the applicable free state church law. In view of the required number of members, individual legal violations are not sufficient to deny compliance with the law.

The rationale for these unwritten requirements is complicated. Religious societies under public law are not part of the state either, but of society, much like an association or a normal citizen. The legal binding, which Article 20.3 of the Basic Law orders for the administration, therefore just as little affects religious communities as the basic rights binding of Article 1.3 of the Basic Law, since basic rights are only rights of defense against the state. Religious communities under public law are, like every citizen, not obliged to comply with the law, but are only subject to the sanctions ordered in the event of non-compliance. In order to still be able to demand compliance with the law, the Federal Constitutional Court first of all looks at the area in which religious communities under public law do not exercise their own sovereignty, but rather sovereign powers granted by the state. Since the state can only exercise these within the limits of the law and the fundamental rights, it cannot transfer them to a wider extent, which means that they are limited from the outset. In the areas in which religious communities under public law exercise their own sovereign powers, this restriction does not exist. Except insofar but the State from its closed (not the religious community) Laws bond out to gain the powers of a public body of a non-law-abiding religious community.

No requirement: loyalty to the state

A special loyalty to the state is not a requirement. Rather, it is left to the religious community to decide whether to support the state, behave neutrally or critically towards it. The Basic Law explicitly provides for cooperation between the state and the religious communities in some cases and allows it in other areas. Whether they want to accept such offers or keep their distance from the state is left to their religious self-image. The fact that the Basic Law makes religious instruction and pastoral care available to all religious communities in principle shows that it does not assign benefits and opportunities to participate in a schematic manner according to the legal form in which a religious community is organized. There is therefore no automatism between the status as a religious community under public law and state privileges that are not already guaranteed with this status itself (“privileges”). Consequently, loyalty to the state cannot be a prerequisite for the award.

Examples

The Protestant regional churches and Roman Catholic dioceses are religious societies under public law. In addition, there are numerous smaller religious communities under public law such as the Old Catholic Church , the Independent Evangelical Lutheran Church (SELK), the Christian Community , numerous Protestant free churches , the New Apostolic Church , Jehovah's Witnesses , the Israelite religious communities and Christian Science . This includes their associations and, in accordance with canon law , their subdivisions (z. B. parishes and -bezirke ).

The Ahmadiyya Muslim Jamaat is so far the only public Muslim religious society in Germany.

Non-religious ideological communities such as the Federation for Freedom of the Mind in Bavaria and the Free Religious State Community of Palatinate can also be subject to public law .

Switzerland

In Switzerland, for comparison, there are regional churches which, according to the law of the respective cantons, are partially structured as public corporations with special legal positions. Their classification between church and state differs considerably from canton to canton.

Web links

Individual evidence

  1. ↑ judgment v. December 19, 2000, 2 BvR 1500/97, margin no. 70th Federal Constitutional Court, December 19, 2000, accessed on November 10, 2019 .
  2. ↑ a b c d Corporate status. In: bmi.bund.de. Retrieved November 10, 2019 .
  3. ↑ See BVerfG, decision of April 28, 1965, Az. 1 BvR 346/61, BVerfGE 19, 1 - New Apostolic Church.
  4. ↑ See BVerfG, decision of December 13, 1983, Az. 2 BvL 13/82, BVerfGE 66, 1 , 17 ff
  5. ↑ cf. Art. 137 para. 3 WRV - left open by BVerfGE 66, 1 , 25 - bankruptcy default money; see. but Heinig, Public Religious Societies, p. 298 f.
  6. ↑ BVerfG, judgment of December 19, 2000, Az. 2 BvR 1500/97, BVerfGE 102, 370 - corporate status of Jehovah's Witnesses.
  7. ↑ Order of June 30, 2015. Federal Constitutional Court, accessed on November 10, 2019 .
  8. ↑ Corporate Status Act. Ministry of the Interior and Local Affairs of the State of North Rhine-Westphalia, accessed on November 10, 2019 .
  9. ^ Christoph Winzeler: Landeskirchen. In: Historical Lexicon of Switzerland . November 11, 2008 , accessed November 10, 2019 .
  10. ^ Peter Gilg : Church and State. In: Historical Lexicon of Switzerland . October 16, 2008 , accessed November 10, 2019 .