Arrangement (law)
An order is an instruction directed by law , judgment or administrative act to a natural or legal person to comply with a specific behavior ( act , toleration or omission ), as otherwise a threatened legal consequence occurs.
General
The concept of an order comes from public law , which is characterized by a superior and subordinate relationship, by virtue of which the state or state organs are granted a right of order . This right to issue orders is expressed through laws, judgments or administrative acts. In this sense, laws can be understood as abstract (i.e. not limited to an individual case, but nevertheless covering it) and general (addressed to an indefinite number of legal subjects ) regulations for human behavior. The order can be compulsory ( ius cogens ), but also permit other agreements of the parties involved ( dispositive right ). The arrangement affects many areas of law and is also used in legal literature for situations where the law requires a certain act or omission. In Section 433 (1) of the German Civil Code ( BGB) , for example, the seller must hand over the item to the buyer and provide ownership of the item in the purchase contract . While in private law the contract dominates as an amicable regulation of the contracting parties, the typical regulation pattern in public law is the unilateral arrangement in the form of a legal norm or an administrative act. While laws represent general orders, judgments and administrative acts with specific instructions are aimed at certain legal subjects. Regardless of the legality , the addressee is initially bound by the order. However, by filing an appeal , he can contest the order and obtain a legal review. In preliminary administrative proceedings , the filing of an objection or objection has a suspensive effect in the sense of a provisional impediment to execution.
species
Individually applicable orders are judgments, resolutions , decisions or notices . In Swiss law, an order in this sense is also the so-called official bid . In Austrian administrative law, official orders are divided into directives and notices .
Situation in Germany
In Germany, the Civil Code, the Criminal Code and the Code of Criminal Procedure contain generally applicable regulations:
Civil Code
Laws like the BGB contain numerous regulations. The BGB uses the term arrangement especially in inheritance law , but without defining it. According to Section 1639 of the German Civil Code, the testator can make orders for children as heirs that must be fulfilled by the parents . According to § 2048 BGB, the testator can make arrangements for the inheritance dispute through a testamentary disposition ( will ) . Section 2216 of the German Civil Code regulates the compliance with the testator's orders by the executor .
Criminal Code and Code of Criminal Procedure
The criminal code (CC) provides about the judicial placement of the housing in a rehabilitation center ( § 64 CC), secured custody ( § 66 CC), guide supervision ( § 68 CC) or prohibition ( § 70 CC) before. The Code of Criminal Procedure (StPO) knows a number of judicial orders, such as the physical examination of the accused ( § 81a StPO), seizures ( § 98 StPO), telecommunications surveillance ( § 100a StPO), searches of the accused ( § 102 StPO) with the principle of Section 105 StPO or pre- trial detention by means of an arrest warrant ( Section 112 StPO). The police may only carry out these measures if they have the prior authorization of a judge or public prosecutor ( judge reservation ); Exceptions exist within the framework of the so-called express responsibility .
Procedural and administrative procedural law
In the process right is interim measure , a provisional decision of the court and is intended to prevent that before legal force of a judgment, a final condition is brought about by the parties (eg. B. § § 707 , § 719 , § 732 , para. 2 or § 766 , paragraph 1 Sentence 2 ZPO; § 307 Abs. 2 StPO). In administrative procedural law , it corresponds to an injunction in accordance with Section 123 VwGO. With them, the administrative court can order the maintenance of an existing situation or regulate a provisional situation before an action is brought. These orders are issued in an abbreviated procedure that appears as an independent procedure in addition to the main proceedings . In administrative law, the notification is an individual, specific order from an administrative authority .
Others
Police orders that are issued on the basis of laws (mostly the StPO) and are to be followed by those affected are a broad area. These are police measures that serve to avert danger and represent administrative acts that can be challenged by the person concerned. The first section of the third part of the Law on Administrative Offenses ( OWiG ) lists fines for violations of state orders, such as incorrect naming ( Section 111 OWiG).
The so-called arrangement of overtime is based on an employment contract , works agreement or collective agreement , while the Working Hours Act (ArbZG) only stipulates a daily working time of no more than 10 hours ( Section 3 ArbZG).
In insolvency proceedings , the insolvency court can issue a large number of orders, such as security measures ( Section 21 InsO ), a ban on sale ( Section 22 InsO) or restrictions on disposal ( Section 23 InsO).
Individual evidence
- ↑ Günther Dopjans, Introduction to Business Law , 1978, p. 1
- ^ Johann Braun, Introduction to Law , 2007, p. 238
