Affected
Affected is a person who is affected by a measure , thing or a third party right . In administrative law , the person concerned is a legal entity whose legal interests are affected by an administrative act .
General
The not legally defined legal concept of the person concerned occurs in many areas of law ; In addition to the laws mentioned here, also, for example, in the Federal Data Protection Act (BDSG), Federal Disciplinary Act (BDG), Act on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction (FamFG), Third Book of the Social Code (SGB III) or in the Securities Acquisition and Takeover Act ( WpÜG).
Administrative law
Administrative acts are official orders that may be in favor or to the detriment of legal entities ( citizens or companies ). An administrative act becomes effective against the person for whom it is intended or who is affected by it, in accordance with Section 43 (1) VwGO, at the point in time at which it is made known to him. If he fails to the detriment of someone, that person is affected. From then on, through an onerous administrative Affected meanwhile, has arrangements noted in particular any overall or prohibitions to follow. The burden can consist in the fact that his rights are impaired by the administrative act, his assets decrease, his debts increase or he obtains other disadvantages. If a person concerned files a legal remedy against an onerous administrative act directed at him which favors a third party , the authority can order immediate execution pursuant to Section 80 (2) No. 4 VwGO at the request of the third party in accordance with Section 80a (2) VwGO . However, according to Section 80 (5) VwGO, the court can order the suspensive effect in whole or in part or restore it in whole or in part at the request of the person concerned in the main matter. If the person concerned fails to contest an illegal administrative act within the deadline for legal remedies, it becomes legally binding.
Affected in regulatory law
The person concerned in regulatory offense proceedings is the person ( natural or legal ) who is accused of an administrative offense ( Section 65 in conjunction with Section 66 OWiG ). This term must be strictly differentiated from the accused in criminal proceedings , since the administrative offense does not contain the moral wrongful allegation of the criminal offense ( Section 1 OWiG). Rather, the person concerned is the person against whom the administrative offense proceedings and, as a rule, the administrative fine are directed. Examples would be the vehicle driver in the event of a speed violation or the business owner in the event of a breach of duty of supervision .
The person concerned is fundamentally the original perpetrator of the regulatory offense, but his position differs greatly from that of the accused. In the preliminary proceedings of the administrative authority , the party involved can be heard on the matter ( Art. 103 GG), but does not have to comment on the matter before the fine is issued . Persistent silence on the part of those involved is not an obstacle to issuing a fine. It would not be reasonable to spend a lot of time listening to the parties involved before every notice of the fine. Instead, he is given an opportunity to speak that he may or may not use. In the preliminary proceedings, the party involved can neither submit applications nor actively participate in the procedure. He has a completely passive role with practically nonexistent rights. He is not involved in the taking of evidence and the responsible official is not obliged to speak to the person concerned. At first glance, this may appear to be a violation of the rule of law (the right to be heard ), but in the main court proceedings, the party involved later has the opportunity to actively intervene in the proceedings. Until the fine has been issued, he or she can request inspection of the files himself or through a lawyer and, as stated above, may comment on the matter .
The first really active act of the party involved is the objection to the administrative fine ( § 67 OWiG). Only from this point on does the role of the person concerned approach that of the accused. The judge can hear the accused in interim judicial proceedings ( Section 69 OWiG) or decide on the basis of the files . From the main court proceedings (§ § 71 ff. OWiG), the position of the participant finally becomes stronger; he can apply analogously to the provisions of the Code of Criminal Procedure and really actively intervene in the proceedings. This possibility does not become available to the parties involved until late in the course of the procedure, but their constitutional rights are thus preserved.
In fine proceedings, the administrative authority can also involve so-called secondary participants ( Section 66 OWiG), such as those involved in the expiry ( Section 29a OWiG) or those involved in proceedings (e.g. in the most common case of the legal person whose representative is the person concerned, Section 88 in conjunction with Section 29 OWiG). Their rights and obligations are equal to those involved.
Affected in social work
The social work has borrowed in the 1970s, the concept of the person concerned from the regulatory law and its to designate parts client or target audience uses. This had the advantage that discriminatory terms such as alcoholics , disabled people , homeless or indebted people could be avoided in public discourse or publications. The disadvantage was that it remained unclear exactly what the affected person was and thus it was avoided to precisely describe the problem in terms of language.
The term established itself in the use of language in social work in the 1980s and 1990s. The customers of social work themselves also adopted this term and referred to themselves as affected. Involvement of those affected in social institutions, more rights, transparency and a say for the users of social services was called for.
In the course of the modernization of social work in the wake of increased cost pressure, it had to be formulated more precisely again and the term came out of fashion again at the beginning of the 21st century and is only used sporadically.
Affected in social urban redevelopment
With the designation of numerous city quarters as redevelopment areas, residents' participation had to be established institutionally in accordance with Sections 136-171 of the Building Code . In this context, the word affected experienced a renewed boom as “restructuring affected”. The participation of residents was institutionalized and formalized in the so-called representatives of affected persons.
Data subject in data protection law
A person concerned in accordance with Article 4 Z 1 General Data Protection Regulation is a natural person who is identified or identifiable. According to this provision, a natural person is regarded as identifiable who directly or indirectly, in particular by means of assignment to an identifier such as a name, to an identification number, to location data, to an online identifier or to one or more special features, the expression of the physical , physiological, genetic, psychological, economic, cultural or social identity of this natural person can be identified.
literature
- Erich Göhler: Law on Administrative Offenses , Verlag CH Beck, ISBN 3-406-48591-X
- Joachim Bohnert: Administrative offenses law - plan for practice and training , Verlag De Gruyter law, ISBN 3-89949-109-2
- Cora Stephan: The cult of dismay. A political moral story. Rowohlt 1994
Individual evidence
- ↑ Raimund Brühl, Administrative Law for Case Processing , 2006, p. 103
- ↑ Inspection of files by the person concerned and the administrative authority . ( dejure.org [accessed December 19, 2018]).
