Tenacity

Consisted force is a legal concept of administrative law under which the, right effectiveness of administrative files is understood.

General

The legal force and legal force are comparable with the final force and affect the legal validity of legal norms and court decisions .

species

A distinction is made between formal endurance and material endurance. Formally definitive (ie incontestable) administrative acts bind the addressee, materially definitive administrative acts bind the authorities ( §§ 43 ff. Administrative Procedure Act ). The regulations on the validity of administrative acts are derived from the principle of legal certainty .

Formal resilience

An administrative act becomes formal when it can no longer be challenged with legal remedies . Formal endurance means incontestability . Until the incontestability occurs, if an objection procedure takes place, the exit authority can remedy the objection or - if the exit authority does not remedy the situation - the objection authority can issue a notice of objection and, if an action for annulment has been brought, an administrative court can revoke the administrative act by means of a judgment .

The non-appeal occurs if either all ordinary legal remedies have been unsuccessful, a waiver of legal remedies has been declared or the deadlines for lodging legal remedies have expired.

Material constancy

The scope of the material validity is to be assessed differently depending on the type of legal area in which the administrative act was issued. A distinction is made between the binding effect with limited cancellation, the factual effect and the declaratory effect.

The material validity occurs with the effectiveness of the administrative act. This does not preclude the fact that the administrative act can still be challenged at the beginning of its effectiveness, since material and formal validity exist independently of one another. This earlier point in time is justified with the protection of legitimate expectations. The citizen must be able to rely on an administrative act duly notified to him. The idea of the protection of legitimate expectations cannot be countered either by the fact that the person complained of can initiate an appeal procedure until it becomes incontestable. Such a procedure can only be initiated by the appellant and not by the authority. If the complainant has initiated an appeal, the validity is of course only consolidated when the incontestability has arisen. Until it becomes indisputable, the administrative act is still subject to being revoked or changed within the framework of an appeal by a remedial decision from the exit authority, an objection notice or a judgment by an administrative court. Since the appellant himself made the material validity available by filing an appeal, the reference to the material validity in the event of a change in the administrative act in the appeal proceedings, in particular if it were made worse by the notice of objection, would be contradictory and not worthy of protection.

Binding effect and limited cancellation

The material validity of an administrative act has the consequence that the legal entity of the authority and the addressee of the administrative act are bound by the regulation made. If an administrative act becomes final, it can in principle neither be replaced nor changed by issuing a new administrative act due to its binding effect.

After the binding effect occurs, the regulation of the administrative act continues to apply, subject to unilateral withdrawal or revocation by the authority or, at the request of the addressee, by reviving the procedure (breaking of the legal force through limited cancellation).

Factual effect

The factual effect declares the legal relationship created by the administrative act not only between those involved in the specific administrative procedure, but also between the addressee and other authorities and even legal entities to be decisive. A renewed review of the administrative act does not take place insofar as the regulation in the administrative act itself is affected.

Determination effect

Whether an administrative act is capable of material validity beyond the regulation made is decided according to the specific individual case. The determinative effect relates to the facts or legal determinations on which the regulation contained in the administrative act is based. If they are included in the material validity, the facts and legal relationships determined for the adoption of the administrative act also apply to other administrative acts towards the same citizen as true. A renewed investigation of the facts and a renewed examination of the compliance with legal provisions, which were already carried out in the administrative act with determinative effect, no longer takes place. Due to the poorly formalized process and the role of the authority as a participant (and not as a neutral third party), the administrative procedure has only a limited guarantee of correctness. In addition, the administrative procedure does not have a final legal pacification function and is geared more towards the future and less towards the conclusion of the past. For reasons of the rule of law, the legislature therefore does not generally order the administrative act to have a declaratory effect.

The determination effect results expressly (e.g. § 4 Asylum Act ) from the law or must be determined by interpretation. It can arise both from the purpose of the law and from reasons of proportionality for the citizen concerned. A well-known example of the need to determine the determination effect through design is the building permit . If the building owner has been granted a building permit, this also establishes bindingly for a future demolition order from the building authorities that the structure complies with the regulations checked by the building permit (legalization effect). If the building police authority wants to tear down the structure because of a contradiction to public law regulations that have already been checked in the building permit process, the building permit must first be withdrawn.

Other areas of law

Material validity in social law

In social law , the law does not use the term "resilience". Instead, the uncontested administrative act becomes "binding" (Section 77 SGG), which means, however, that it is final. In addition, due to Section 44 SGB X, there is in fact only a very limited material validity. According to this, the administration has to withdraw an unlawful non-beneficial administrative act with effect for the past, even if there is formal validity, whereby services are provided retrospectively for a maximum of 4 years according to Section 44 (4) SGB X.

Material validity in tax law

In tax law , final administrative acts can also be changed if a correction provision intervenes (e.g. § 129 , § 130 , § 131 , §§ 172 ff. Tax Code ). Furthermore, the entry into force of law can be prevented by issuing a tax assessment subject to review ( Section 164 AO) or treating certain points in the tax assessment as provisional ( Section 165 AO).

International

In the legal language of Austria and Switzerland , in addition to the incontestability of judicial judgments and resolutions, the incontestability of administrative decisions is referred to as final .

Individual evidence

↑ Michael Sachs in: P. Stelkens, HJ Bonk , M. Sachs (Hrsg.): Administrative Procedure Act Commentary, 8th edition, 2014, § 43 No. 9 and § 48 No. 28.
↑ Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . P. 202 f.

[1] Michael Sachs in: P. Stelkens, HJ Bonk , M. Sachs (Hrsg.): Administrative Procedure Act Commentary, 8th edition, 2014, § 43 No. 9 and § 48 No. 28.

[2] Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . P. 202 f.