Service supervision

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The supervision is either in the state organization law an authority and the authority of a higher-level authority in the matter by controlling the way pre exempt transactions to monitor or in the organization theory , the most important function of disciplinary superior (in the Bundeswehr each supervisor).

General

Service supervision can therefore be both institutional and personal. In administrative organization law , a distinction is made between legal , specialist and service supervision. These three forms are exercised by higher-ranking authorities against lower-ranking authorities. The disciplinary superior exercises supervision in particular with his disciplinary law , which affects the personal affairs of employees .

State organization law

In contrast to the legal and technical supervision, the official supervision is not a state supervision . The supervision of the subordinated state authorities is not a state supervision, but an official supervision in the form of an authority or organ supervision. And subordination occurs when an authority to issue instructions and assembly powers is equipped ( higher authority ) and other authorities to act or omission can force ( secondary authority ). This superordinate and subordinate relationship forms the basis for the exercise of service supervision. The superordinate and subordinate roles always affect the same business area , the same department or take place via a special regulation.

The nature of the supervision is unrestricted in terms of content. It includes the right to influence the entire activity of a subordinate authority, insofar as this influence does not concern the technical area of ​​the fulfillment of tasks. This includes in particular the internal organization of an authority ( structure and process organization through a business distribution plan , workflow ) and human resources . As a rule, supervision rests with the Interior Minister , while technical supervision is usually carried out by the relevant ministry.

Exceptionally, the legal and technical supervision of the Federal Financial Supervisory Authority ( higher federal authority ) is incumbent on the Federal Ministry of Finance ( § 2 FinDAG ), which also takes on the supervision. The municipal supervision extends exclusively to legal and technical supervision. Municipalities are therefore not subject to any supervision by the state administration. The state supervisory authorities do not control the administrative process and the fulfillment of the specific official duties of the employees in a city or district administration. In the case of municipalities, the mayor is responsible for this supervision, and in the case of districts / district offices, the district administrator . State supervision of broadcasters is limited to legal supervision. The relevant state or federal government is only authorized to reprimand violations of the respective state broadcasting law .

Organizational theory

Service supervision is the supervision of the employer over the personal behavior of the employees subordinate to him in an employment relationship and is essentially limited to the area of disciplinary law . In the narrower sense, the service supervision establishes a purely personal legal supervisory relationship, which is not about the correction of a factual decision, but about the personal behavior of a subordinate. Through the supervision, the supervisor ensures that the employees' work tasks are properly carried out with monitoring , instruction and instructions . This service supervision thus includes the observation and correction function and describes the possibilities of control and influence of a disciplinary superior on employees, ensures that the subordinate organizational units are properly equipped with personnel and material resources and includes the authority to decide on legal matters of the public service employees employed there.

In addition to the specialist superior , almost every civil servant has a supervisor (disciplinary superior) who is responsible for supervision. If a breach of duty is suspected, the supervisor is initially also the disciplinary supervisor (e.g. Section 27 DisciplinaryO Baden-Württemberg). There are only two exceptions to this principle of two superiors . Professors are subject to the freedom of research and teaching guaranteed under Art. 3 Para. 3 GG , judges to the judicial independence required in Art. 97 Para. 1 GG . Therefore, neither of them have a specialist supervisor, but only report to a disciplinary supervisor. Strictly speaking, judges do not have a superior in the sense of civil service law, but are subject to the supervision of the court president according to Section 26 DRiG , provided that his independence is not impaired by this. Supervision and judicial independence ensure that the right to justice is fulfilled . According to Section 26 (2) DRiG, the supervision of judges also includes the authority to record the unlawful manner in which an official business is being carried out and to warn that the official business is properly and without delay. Is the authority of the agent are as derivative and the warning is provided. Unlike judges, public prosecutors are bound by instructions under Section 146 of the GVG . They are subject to supervision by their superiors in accordance with Section 147 GVG.

The supervisory complaint is a special form of the petition provided for in Article 17 of the Basic Law . With the help of a disciplinary complaint personal behavior or the way the task of perception can public officials by the citizens in the case of service breaches be reported; however, it does not replace existing legal remedies . It must be sent informally to the official's disciplinary superior or directly to the responsible service supervisory authority .

armed forces

Supervision in the Bundeswehr is one of the duties of a soldier's superior ( Section 10, Paragraph 2, Alt. 2 SG ). Who is a superior is determined by the superiors ordinance . In particular, the duty is not limited to the disciplinary superiors according to §§ 27 ff. Military Disciplinary Code (WDO).

The functionality and internal condition of the armed forces depend on how superiors exercise their supervision. This not only has an observation and monitoring function, but also an educational and intervention function. It should encourage the subordinates to fulfill their official duties, prevent breaches of duty and protect them from negative disciplinary measures and other disadvantages, e.g. B. imminent dangers. The scope of the duty of supervision depends on the position of the superior. However, the supervisor's duty of supervision exists towards the employer , the Federal Republic of Germany , so that the subordinate has no subjective right to exercise it in his favor. A lack of supervision can violate the duty of care ( § 10 Paragraph 3 SG). It can have a mitigating effect when assessing a disciplinary measure. It is part of the supervision that superiors take the necessary decisions and measures based on their observations and reviews; the how and when is based on the best judgment in each individual case.

In the case of a military complaint in accordance with the Military Complaint Regulations , the responsible superiors examine the facts as part of their service supervision and rectify deficiencies even if the complaint is inadmissible (e.g. time limit) or has been withdrawn. They also determine whether the reason for the complaint is due to a lack of supervision.

The higher disciplinary superiors also exercise supervision over their subordinate disciplinary superiors insofar as they monitor the exercise of disciplinary authority and, if necessary, revoke any imposed disciplinary measures ( Section 46 WDO).

International

The Switzerland and Austria know the administrative supervision. In Switzerland, the supervisory authority allows the hierarchical control of administrative activities to intervene in specific individual transactions by means of service orders. Addressees can be entire organizational units as well as individual administrative actions. According to Art. 21 Para. 3 B-VG , official supervision in Austria is the kind of supervision that relates to compliance with legal obligations of subordinate bodies .

Individual evidence

  1. ^ Gerhard Waibel, Municipal Constitutional Law Baden-Württemberg , 2007, p. 226
  2. ↑ Hans Peters, Textbook of Administration , 1949, p. 48
  3. ^ Ernst Forsthoff : Textbook of Administrative Law , 1958, p. 419
  4. ^ Friedrich Hermann Fonk, The Authority of the Regional President , 1967, p. 123
  5. ↑ Erich Becker, Self-administration as the constitutional basis of the communal order in the federal and state levels , in: Handbuch der communal science and practice, Volume I, 1956, p. 166
  6. ^ Eggert Winter, Gabler Lexikon Recht in der Wirtschaft , 1998, p. 256
  7. ↑ Helmut Brede, Fundamentals of Public Business Administration , 2005, p. 88 f.
  8. ↑ Dieter C. Umbach / Thomas Clemens (eds.), Basic Law: Employee Commentary and Manual , Volume II, 2002, p. 1075
  9. ↑ Dieter Walz, Klaus Eichen, Stefan Sohm: Soldiers Law Comment . 2nd Edition. rehm, Heidelberg a. a. 2010, ISBN 978-3-8073-0228-7 , pp. 240-242 .
  10. ↑ Etienne Huber, Autonomy of Agencies at Federal Level in Switzerland , 2012, p. 36