Forms of action by the administration

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The forms of action of the administration are to be understood as the instruments that are available to the public administration to fulfill its tasks and according to which its actions can be legally classified. The legal process opened in the individual case to the ordinary or administrative courts as well as the permissible type of action depend on this classification .

Forms of action by the administration

General

The administration performs public tasks . This is done through (visible) administrative services , in which the administration makes payments , issues warnings , sanctions , commands (“should”), bans (“not allowed”) or permits or sets legal norms . It provides these administrative services to legal entities , i.e. natural persons ( citizens ), associations of persons or legal entities . These administrative services usually represent administrative acts against which legal remedies can be taken.

species

Administrative services can express themselves in two types of form of action, namely in the offense ( real act ) and the administrative decision . Action is any activity that brings about actual success and thereby actually changes reality . This is the case when an official of a citizen a fill form hand over the police in patrol cars to the police operation continues or the garbage disposal the garbage pick up. These real acts lack the regulatory effect on which an administrative decision is based. It is the result of an authority-internal decision-making process ( invisible administrative service ) that does not initially change reality. An official building permit does not change reality immediately, but only the later start of construction .

The best known and most common form of action, especially in the field of interventional administration is under the administrative decision in § 35 para. 1 VwVfG defined administrative act . The administrative support and his authority is doing one-sidedness sovereign act, d. H. an administrative act does not depend on the consent of the addressee of the norm ( right of intervention ). In contrast to this is the public law contract , which requires a consensus between the contracting parties.

While both of the above forms of action serve to regulate individual cases, the administration with the statutory ordinance and, in the area of self-administration, the statutes also have the option of creating general, abstract regulations by way of standard-setting .

On the other hand, no legal norms represent administrative regulations or internal individual instructions or service instructions to subordinate bodies due to a lack of external impact .

simple administrative action / real files Administrative act General decree Ordinance statute public law contract acting under private law
effect factual effects concrete-individual concrete-general abstract-general abstract-general legally between parties legally between parties
possible

Legal bases

diverse Section 35 I 1 VwVfG Section 35 I 2 VwVfG Art. 80 I GG

identical provisions of the state constitutions police laws

§ 10 BauGB Sections 54 ff. VwVfG v. a. BGB
Definitions, case groups Action without legal result


z. B. Information action by the administration

z. B. Immediate compulsion

Commanding



Shaping


Noting

Favorable

Incriminating


Var. 1: Addressee- related (administrative act aimed at a group of people who are determined or determinable according to general characteristics)


Var. 2:

Relevant

(Administrative act that regulates the public law property of a thing)


Var. 3:

Terms of use

(Administrative act that regulates the use of a thing)

legal norms issued by the executive body Legal norm issued by the executive body


which, however, does not require any special authorization

comes about by mutual agreement of the parties
requirements Jurisdiction


Legal basis


possible legal reservation

individual requirements of § 35 sentence 1 VwVfG individual requirements of § 35 S. 1 and 2 VwVfG statutory authorization basis fulfills the following:


Sufficient certainty requirement (principle of special authorization) in accordance with the rule of law in realizing the recognizability for the citizen


in force at the time of the decree


does not violate parliamentary scrutiny

formal requirements of Art. 80 I GG are met

there is material conformity with laws and the Basic Law
example public warnings by the administration Building permit Dedication of a street (Var. 2)


Traffic signs (Var. 3)

Corona control regulations Zoning plan
Legal protection Action for performance (for omission or removal of the consequences), declaratory action Action for annulment Action for annulment Regulatory review application, declaratory action Regulatory review application, declaratory action ordinary jurisdiction

Critique of the forms of action

In the context of the new management model , the form of action "issuing administrative acts" is increasingly being questioned for reasons of budget consolidation. The state uses elsewhere strengthened private law forms of action that transfers even by way of privatization classic sovereign tasks to a private company as the privatization of air traffic control for a constitutional amendment in 1992. The state is increasingly seeking cooperation with citizens and acts in public-private partnership , waived Regulation and / or own control in favor of private professionals who have received the authorization to certify , e.g. B. in environmental protection in the eco-audit and also seeks consensus with the social actors in planning tasks as in the project-related development plan . He leaves them responsible or involves them in his decision-making, for example within the framework of good governance and according to the model of the activating state .

Web links

Individual evidence

  1. ↑ Dirk Ehlers / Martin Burgi, General Administrative Law , 2010, p. 586
  2. ↑ Walter Krebs, Control in State Decision-Making Processes , 1984, p. 28
  3. ↑ Maurer, Hartmut: General administrative law . 18th edition. Beck, CH, Munich 2011, ISBN 978-3-406-61452-1 , p. 360 .
  4. ↑ Administrative act Online-Verwaltungslexikon olev.de, Version 2.11, accessed on May 24, 2018