Official duty

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Official duty in Germany means firstly the violation of an obligation of a person in a public service relationship ( civil servant , soldier , judge ) towards a third party, which results from their office or legal status ( § 839 BGB ). The duties towards their employer , on the other hand, are official duties . Second, official duty is the term for the duties of persons in a public service relationship (e.g. members of the constitutional organs ). Thirdly, the duties of notaries , notary assessors and members of a legal court are also referred to as official duties.

scope

It is not only civil servants who have an official duty; A civil servant is anyone who is entrusted with the exercise of official authority. This also includes employees, aldermen, school pilots or chimney sweeps who exercise sovereign activities. The towing company commissioned by the police is also a civil servant in the sense of the civil liability concept of civil servants when performing the substitute performance, because the BGH believes that the towing process is still part of the police enforcement measure. Other public officials (such as notaries ) are also subject to official duties. Notaries are personally liable according to § 19 BNotO . The subsidiarity of their liability according to Section 19 (1) sentence 2 BNotO only applies to sovereign activity ( certification ), not to advice or storage. Actions that an official undertakes within the boundaries drawn by the official duty are not illegal even if they violate private rights and the rights of third parties.

From a criminal law perspective, it is important that - in particular in the case of bribery offenses - those involved in the public service are involved; In the case of economic activity, it depends on whether it serves the general interest . Real official offenses can only be committed by real officials, with non-officials they remain unpunished. Fake official offenses, on the other hand, are punishable for all public officials, but are threatened with higher penalties for officials.

content

The official duty is expressed in sovereign action when exercising public authority, be it through official approval , issuing (illegal) administrative acts , "official" information or advice or failure to perform public tasks required by law ( e.g. services of general interest such as garbage collection or public litter obligation ). It includes the careful administrative handling of entrusted foreign matters and the duty of official secrecy . The official duties also include acting in accordance with jurisdiction and procedures, proportionality and providing proper information. Applications are to be processed and decided conscientiously, conducive to, and relevant to within a reasonable period of time.

Breach of official duty

If an official exceeds the limits of his official duty, there is a breach of official duty. The incorrect behavior of public officials triggers official liability. An official liability claim presupposes that a public servant intentionally or negligently violates his official duty towards a third party. Another prerequisite for all cases of breach of official duty is that the injured party has lodged an appeal in order to avert damage ( Section 839 (3) BGB). However, this is only relevant in terms of liability law if it is an intentional breach of duty. In the event of a negligent breach of official duty, liability only arises in accordance with the subsidiarity clause of Section 839 (1) sentence 2 BGB if the injured party cannot otherwise obtain replacement from a third party. If an incorrect building permit is issued through negligence, the client must be referred to the liability of the incorrectly planning architect. If the substitute liability is not enforceable due to the financial loss of the third party, the civil servant is also liable for negligence.

An official misconduct is present even when the boundaries of an existing discretion be a backlash hurt, without a misuse of powers exists. According to this, the civil servant may only exercise his discretion in a dutiful manner, but not incorrectly, incorrectly or not at all. The case law also requires an internal connection between the act of infringement and the pursuit of sovereign purposes. According to this, a non-sovereign business trip has an internal connection between the act of infringement and the pursuit of sovereign purposes if it is used to take an sovereign measure at the destination. The Federal Court of Justice depends on whether the purpose of this business trip is to act sovereignly. The self-liquidating chief physician acts under private law, so that in the event of a malpractice he does not violate his official duties in the exercise of the public office assigned to him. In principle, the public sector cannot avoid official liability for incorrect behavior on the part of its employees by transferring the implementation of a measure to a private entrepreneur. The breach of official duty can lead to disciplinary consequences.

The judge 's breach of official duty also gives rise to liability for damages according to Section 839 (2) BGB in conjunction with Article 34 GG . In the case of the judge's privilege, however, this only applies to breaches of official duties resulting in a criminal offense (Section 839, Paragraph 2 of the German Civil Code). The term and understanding of the provision of Section 839, Paragraph 2, Sentence 1 of the German Civil Code (BGB) have changed over the course of time: Initially, judges' privilege was discussed in general terms , then this changed to judges' privilege and finally, according to the current status, to judges' privilege.

This means that claims for damages can be enforced, among other things, if the judge can be proven that the judge has not acted . A perversion of the law is conceivable in two groups of cases: in the case of judicial decisions that are evidently grossly incorrect in terms of content and in the case of evidently grossly incorrect procedural design.

Judges at registry courts are not arbitration judges because no judgments are made in voluntary jurisdiction . Therefore the judges do not benefit from the judge privilege. The judge's privilege according to § 839 Paragraph 2 Sentence 2 BGB also does not apply to cases of refused or delayed official activity, i.e. unlawful inaction.

Under constitutional law, the violation of official duties is any violation of the law against public and private law norms that bind the executive sovereign (authorities) ( Article 20 (3) of the Basic Law).

Personal liability and state liability

According to § 839 Paragraph 1 BGB, the official addressee of the liability claims is clearly the official. The same applies to experts in their judicial review work ( § 839a BGB). In the BGB it is mentioned that a civil servant is personally liable for breaches of official duties and not the employer (the authority ). The civil servant is liable for damage caused intentionally or grossly negligently to the employer in accordance with Section 75 of the Federal Civil Service Act or the corresponding state law provisions (for employees in the public service, a similar liability follows from the employment contract ). In order that public employees are not exposed to this high personal liability risk, Art. 34 GG provides for counter-liability of the employer or the state. The civil servant's personal liability is thereby transferred to the state. If someone in the exercise of a public office entrusted to him violates his official duty towards a third party, then - because constitutional law takes precedence over civil law - the responsibility lies with the state or the body in whose service he is responsible. In the event of willful intent or gross negligence, the state reserves the right to recourse to the official. Ordinary legal recourse may not be excluded for claims for damages and for recourse. Notaries are personally liable according to the Federal Notary Act and must therefore insure themselves accordingly ( § 19a BNotO); a state liability is excluded for them (exceptions apply to the notaries in Baden-Württemberg).

See also

literature

  • Manfred Baldus, Bernd Grzeszick, Sigrid Wienhues: State liability law: the right to public compensation . 4th edition. CF Müller, Heidelberg 2013, ISBN 978-3-8114-9151-9 .
  • Steffen Detterbeck, Kay Windthorst, Hans-Dieter Sproll (eds.): State liability law . CH Beck, Munich 2000, ISBN 3-406-45837-8 .
  • Bernd Hartmann: Public Liability Law: Economization - Europeanization - Dogmatization . Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-152525-4 .
  • Peter Itzel, Karin Schwall, Christoph Stein: Practical handbook of official and state liability law . 2nd Edition. Springer, Berlin 2012, ISBN 978-3-642-13001-4 .
  • Fritz Ossenbühl, Matthias Cornils: State liability law . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 .
  • Bernd Tremml, Michael Karger, Michael Luber: The official liability process: official liability, notary liability, European law . 4th edition. Vahlen, Munich 2013, ISBN 3-8006-3116-4 .

Web links

Individual evidence

  1. ↑ BGHZ 2, 350 (354).
  2. ↑ jurion.de: BGH Az .: III ZR 82/81 , accessed May 20, 2019
  3. ↑ BGH NJW 1993, 1258, 1259.
  4. ↑ Schönke / Schröder and Dreher / Tröndle, commentary on the StGB on Section 111 No. 2, 4 StGB.
  5. ↑ BGHZ 34, 184
  6. ↑ BGH WPM 1972, 743
  7. ↑ BGH, judgment of March 19, 1992, Az. III ZR 117/90.
  8. ↑ BGHZ 42, 176.
  9. ↑ BGH NJW 1986, 2338; Case "Lara".
  10. ↑ BGHZ 121, 161, 165 f.
  11. ↑ Right magnification: 18 years of litigation and the privilege of judges dated December 6, 2010
  12. ↑ Palandt, para. 63 ff on § 839 BGB.
  13. ^ Marten Breuer : State liability for judicial injustice . Mohr Siebeck, 2011, ISBN 978-3-16-150535-5 , p. 169 ff.
  14. ↑ Christian Kirchberg: Legal Liability, Judge Liability, What Makes the Difference? In: BRAK-Mitteilungen 2018, pp. 59–63.
  15. ↑ Thomas Fischer , Commentary on the Criminal Code, 64th edition 2017, Rn. 16 on Section 339 of the Criminal Code
  16. ↑ Thomas Fischer, Commentary on the Criminal Code, 64th edition 2017, Rn. 17 on Section 339 of the Criminal Code
  17. ↑ BGH NJW 1959, 1085.