Public law dispute
A dispute under public law exists if the claim is the result of a situation that is to be assessed under public law . The plaintiff's request is therefore only of a public law nature if it can be derived from legal provisions of public law. The first point of reference for this assignment is the factual presentation of the plaintiff. It should be noted that the true legal nature of the request is decisive, not the subjective assessment of the plaintiff. It is irrelevant for the existence of a public-law dispute if norms that are assigned to civil law , for example , only refer to preliminary questions. A demarcation in such cases can turn out to be particularly difficult.
- An example case: A foreigner is married to a German citizen and has a child during the marriage. The marriage soon ends in divorce. Later, the father successfully challenges paternity according to the civil law provisions of the BGB . The foreigner should then be expelled. The immigration authorities argued that the mother lost her right to stay because the father's contestation resulted in the child retroactively losing German citizenship. The foreigner sues the administrative court and claims that she still has the right to stay, because her child has German citizenship and this cannot retroactively expire. In this case, the request for action is the contestation of the deportation order. The expulsion is regulated in the aliens law and this is to be assigned to public law. Consequently, there is a dispute under public law. To what extent the civil law contestation of paternity was effective and what consequences result from it is only a preliminary question and does not show the dispute as a private law one.
If there are doubts as to whether the legal propositions on which the subject of the dispute is based are to be assigned to public law or private law , a distinction must be made using the three differentiation theories ( interest theory , subordination theory , modified subject theory ). It should be noted that these theories are not suitable for the delimitation of disputes under public law and civil law, but are only used when it has to be clarified whether a specific legal sentence to which the subject of the dispute relates is public law or is assigned to private law territory. The administrative court is responsible for the decision of public disputes of a non-constitutional nature ( § 40 VwGO ), as far as these are not assigned to other courts by law. The social court decides on disputes under public law, which are enumeratively listed in Section 51 (1) SGG .
