The public law (including Public Law written) is the part of the legal system , the relationship between carriers of public authority (the state ) and individual private entities (the citizens ) controls. In contrast, private law regulates the legal relationships between private law subjects. Furthermore, public law encompasses the legal relationships between the administrative bodies as well as state organizational law relating to the organization and function of the state , such as jurisdictionthe individual authorities and courts or regulations on the employment relationship of civil servants .
Differentiation from private law
The delimitation of public law from private law is controversial, but is practically necessary with regard to the question of which legal process must be taken in the event of legal disputes . Nowadays, several approaches to delimiting public and private law are advocated. The prevailing teaching in Germany follows the modified subject theory , in Switzerland the modified functional theory . The Swiss Federal Supreme Court , however, refuses to give preference to one method.
Modified subject theory
According to the so-called modified subject theory - also known as special law theory or assignment theory - public law is always given when the legal norm in question only authorizes or obliges a holder of sovereign authority. Otherwise private law applies.
The theory is criticized because the formulation “exclusively” (in the sense of “only”) is wrong, because often the obligation / authorization of a sovereign requires an authorization / obligation of another legal entity . Instead, it should be formulated “if the legal norm concerned entitles or obliges a holder of sovereign power as such ”. Different results can be obtained, for example, from § 928 II BGB , which only authorizes a sovereign, but not as a sovereign , but as an asset holder and participant in civil legal transactions.
Modified Function Theory
Functional theory subdivides according to the criterion whether the norm in question directly serves to carry out state tasks, its addressee is the community. The modification here includes the reservation that the said norm does not expressly subject state action to private law.
The theory of subordination that is barely supported is the theory of subordination , according to which a legal relationship is always subject to public law if there is a superior and subordinate relationship, while private law is characterized by an equitable relationship.
According to the theory of interests , which is derived from Roman law, the delimitation was essentially based on whether the content of the legal relationship, at least in part, serves the public interest.
The modal theory focuses on whether sanctions for violations of norms are public law (administrative compulsion) or private law.
Change in the dogmatics of public law
The relationship between the state and the citizen was traditionally understood in public law as a superior / subordinate relationship. This view was fundamental to the entire dogmatics of public law. Since the 1970s, the basis for a change in this view has been the distinction between state function and law, which makes the relationship between law, state and citizen appear as a triangular relationship. According to this, the law decides in a conflict between the state and citizens, who face each other in principle in the sense of equality. This relationship between state and citizen is also interpreted as a legal relationship in which state and citizen assert rights against each other. Public law decides on conflicts between groups, while civil law decides the interests in two-person relationships.
At the domestic level, it encompasses the entire state law , also known as constitutional law . It is subdivided into state organization law, which regulates the organization, composition and competencies of the highest state organs , the basic rights , which offer protection against state interference in individual freedoms and to a certain extent rights of participation, as well as state church law , which regulates the legal position of the state-recognized religious communities .
In addition, public law includes general and special administrative law as well as procedural law under administrative law . Finally, special administrative law matters such as social law and tax law , which have been given a certain degree of autonomy due to their scope, are also covered.
On the one hand, criminal law can be counted under public law, since it affects the relationship between citizens and states. On the other hand, it is often viewed as an independent field of law, as it historically precedes public law and is taught independently in legal training in Germany .
Public law covers the following matters:
- General international law (law of international treaties, state responsibility, state immunity, etc.)
- Human rights
- Law of international organizations
- International economic law (world trade law, investment protection, etc.)
- International environmental law
- Maritime law
- Space law
- International humanitarian law
- International criminal law
- Supranational law
- National law
- State and Constitutional Law
Administrative law (subordination relationship between public administration and citizens)
- General administrative law
Special administrative law
- Public building law
- Local law
- Service law
- Police law
- Environmental law
- Commercial administrative law
- Special procedural law and procedural law
- Social law
- Tax law
- Internal law of religious societies under public law
- Criminal law (mostly dealt with independently)
- Kock / Stüwe / Wolffgang / Zimmermann: Public Law and European Law. 3rd edition, nwb, Herne 2004, ISBN 3-482-48343-4 .
- Michael Stolleis : History of Public Law in Germany. 4 volumes, Munich 1988–2012.
- Pierre Tschannen / Ulrich Zimmerli : General Administrative Law . Stämpfli AG , Bern 2005, ISBN 3-7272-0781-7 , p. 111 .
- Hartmut Maurer , General Administrative Law , 15th edition, Munich 2004, § 3 Rn 18.
- Pierre Tschannen / Ulrich Zimmerli: General Administrative Law . Stämpfli AG , Bern 2005, ISBN 3-7272-0781-7 , p. 112 .
- Jan Schapp : The subjective right in the process of obtaining rights. Duncker & Humblot, Berlin 1977, chap. 7, ISBN 978-3-428-03849-7 .
- Wilhelm Henke : The subjective right in the system of public law. DÖV 1980, 621ff
- Katharina Countess von Schlieffen (ed.): Republic, legal relationship, legal culture. Mohr Siebeck, 2018.
- Jan Schapp: On the relationship between law and state. In: About freedom and law - legal philosophical essays 1992-2007. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-155290-8 , pp. 35-59.
- Albert Janssen: The endangered statehood in the Federal Republic of Germany. Contributions to the preservation of their constitutional organizational structure. v & r unipress, 2014, pp. 96ff, 416f, 583, ISBN 978-3-8471-0280-9 .