Public law reimbursement claim
The public-law reimbursement claim is a claim to repatriation of asset shifts. The claim comes both between sovereigns and between a sovereign and a citizen, as well as a citizen's claim against the state (legal relationship under public law between the parties).
The legal basis is controversial. Earlier in particular, the claim was derived from the analogous application of the civil law enrichment regulations (§ § 812 ff. BGB ). In part, it is also taken from the principle of the legality of the administration and thus from the general rule of law from Article 20 of the Basic Law . However, this can be ignored, since the claim is now recognized under customary law and finds its sufficient basis therein. The claim is subsidiary to legally standardized reimbursement claims such as Section 49a VwVfG for reimbursement in the event of withdrawal or revocation of an administrative act with effect for the past or Section 37 (2) AO for the tax reimbursement claim .
In principle, the claim arises if there is a public-law shift of assets without legal reason within the meaning of § 812 BGB. The shift in assets can take place through performance or in any other way. The legal reason may have been missing from the outset or it may have ceased to exist later. Thus, the claim comes into consideration especially in the case of payments for void performance notices, as well as unlawful public performance requests, as long as the corresponding notification has not become final due to a lack of objection or legal action.
The state enforces the reimbursement claim by issuing an administrative act , provided that a performance is reclaimed that was granted by an administrative act. The citizen asserts his interests by means of an action suit before the competent administrative court .
Reimbursement claims in other areas of law
There are also reimbursement claims in other areas of law. An example is the works council's claim for reimbursement against the employer in accordance with Section 40 (1) BetrVG : If the works council uses a lawyer to advise and represent it and the works council incurs legal fees as a result, the works council has to pay on the basis of Section 40 (1) BetrVG a right to reimbursement of legal fees against the employer.
literature
- Hartmut Maurer : General administrative law. 16th, revised and expanded edition. Beck, Munich 2006, ISBN 3-406-54297-2 , § 29 Rn. 20 ff. ( Floor plans of the right ).