Capacity to act (Germany)

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The capacity to act (or legal capacity ) is understood to mean the ability of a legal subject to bring about legal consequences through their own action , in particular to acquire rights and establish obligations . It is to be distinguished from the legal concept of legal capacity , which describes the capacity to bear rights and obligations.

civil right

In civil law , the ability to act means a generic term that is no longer used by the BGB - in contrast to the theory under general law - which has different meanings depending on the legal matter:

Administrative law

In general and special administrative law in Germany, the legal capacity to act in administrative proceedings is called the capacity to act . It is the legal ability to perform procedural acts in administrative proceedings, in particular to submit applications. It is the counterpart to legal competence in civil law and litigation in civil procedural law. The ability to act under administrative procedural law is regulated at federal level in Section 12 VwVfG . In the parallel provisions of the administrative procedure laws of the federal states as well as in SGB ​​X and in the tax code .

According to Section 12 (1) of the Administrative Procedure Act, the following are legally capable of acting in administrative proceedings

  1. "natural persons who are legally competent under civil law,
  2. natural persons whose legal capacity is restricted according to civil law, insofar as they are recognized as legally competent for the subject matter of the proceedings by provisions of civil law or as capable of acting by provisions of public law,
  3. legal persons and associations (§ 11 No. 2) by their legal representatives or by specially authorized persons,
  4. Authorities through their heads, their representatives or agents. "
Minors in social welfare law

Determined as capable of acting by provisions of public law (cf. § 12 Paragraph 1 No. 2, last half-sentence VwVfG), minors in particular , who z. B. May apply for social benefits from the age of 15 ( Section 36 SGB ​​I ).

If a legal guardian is conducting an administrative procedure, the person being supervised is considered incapable of acting for this procedure. If a reservation of consent has been ordered on the task of official affairs, the person being cared for is generally considered to be incapable of acting in all proceedings, unless a minor would be able to act in this process.

Please note: If the legal representative does not agree that the minor should appear at the office himself, then the office must be informed accordingly by the legal representative so that the responsible staff can contact him.

Procedural law

The legal capacity to act in procedural law ("the procedural capacity to act") is called process capacity. It is defined as "the ability to effectively undertake or receive process actions yourself or through self-appointed representatives ". A procedural act is an action that obliges a court to act to enforce a (alleged) right.

Individual evidence

  1. ^ Otto Palandt , Commentary on the Civil Code , CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , overview of the introduction before Section 104, marginal no. 1.
  2. Reinhold Zippelius : Introduction to Law. 7th edition. Mohr Siebeck, Tübingen 2017 (utb; 2175), ISBN 978-3-8252-4795-9 , p. 55
  3. BAG, judgment of 04.06.2003 - 10 AZR 448/02 = NZA 2003, 1049 (1051)