Public law disputes of a non-constitutional nature
In the case of public law disputes of a non-constitutional nature , administrative legal channels are usually open to German administrative procedural law .
Insofar as the jurisdiction of the administrative courts is not arranged in a special law independently of the existence of a public-law dispute , such as, for example, in Section 54 of the Civil Service Status Act for all actions of civil servants or, in spite of the existence of a public-law dispute, a different court is assigned for decision, it is assessed the jurisdiction of the administrative courts according to the general clause of Section 40 (1) sentence 1 VwGO .
There is a special administrative jurisdiction of the social courts and finance courts ( § 51 SGG, § 33 FGO). For judicial administration record ( § 23 , para. 1 EGGVG ), the expropriation compensation ( Art. 14 , para. 3 sentence 4 GG) and the other referred to in § 40. 2 VwGO disputes such as the public liability on the other hand, the ordinary courts responsible.
Public law
A dispute is under public law if the legal relationship from which the claim is derived is public law. There are a number of delimitation theories to determine this. The three most common are currently:
- Theory of interests : The decisive norm is public law if it serves the public interest.
- Subordination theory : There is a super-subordination relationship . This is always the case when it comes to an administrative act , a statute or an ordinance .
- Modified subject theory (special law theory): The rule that decides the dispute entitles or obliges on the one hand only one sovereign.
The two-stage theory can also be used for rights of use in public facilities and for subsidies . According to this, the “whether” of the grant is always public law. In the case of “how”, however, this depends on the individual case.
Non-constitutional art
A dispute is of a non-constitutional nature if it is not conducted between constitutional organs or other legal entities involved in constitutional life (formal element) that are decisively shaped by constitutional law, i.e. which are essentially not about the application and interpretation of constitutional law (material element) .
Web links
- Hubertus Gersdorf : Opening of the administrative legal path in: Administrative process law . CF Müller Verlag , no year, 1st section, pp. 1–8
Individual evidence
- ↑ Hartmut Maurer : General Administrative Law , 15th edition, 2004, ISBN 3-406-52631-4 . § 3 Rn. 12.
- ^ Friedhelm Hufen : Administrative Process Law , 9th edition, 2013
