Duke coat theory
The Duke-shell theory is one of the seal transmitted representation of the dependency relationship between a law and based thereon Implementing the purposes of stages construction of the legal system . If the law is repealed, the (lower-ranking) implementing ordinance based on it will generally no longer apply.
With the abolition of the law, the implementing ordinance does not become illegal, but in principle ( ipso iure ) also expires . However, this does not apply if a legal successor regulation is issued in which the previous implementing regulation is covered in terms of scope and content.
In the decision VwGH 85/17/0030 , the Austrian Administrative Court recognized that the retroactive design effect of the revoking decision of the VwGH (also) means that all legal acts and factual (enforcement acts) that are subsequently issued during the validity of the the decision revoked by the Administrative Court was issued on the basis of which the legal basis was subsequently withdrawn; a follow-up notification of this type is therefore to be revoked. Only if there is an inseparable procedural context can it be assumed that the follow-up files will be removed from the legal status at the same time as the repealed administrative act ("Herzog-Mantel-Theory") with reference to the decision E 13.11.1985 84/17/0283.
Origin of name
The name of the duke coat theory was borrowed from the work of Friedrich Schiller : The Fiesco Conspiracy at Genoa . In it, the Republican Verrina, the Count of Lavagna, Fiesco, and head of the conspiracy, throws over the cliffs into the sea, calling after him: Well, if the purple falls, the Duke must follow too!
This theory, such as B. also the petrification theory and the overshadowing theory , was developed by the Austrian Constitutional Court after the Second World War .
Individual evidence
- ↑ Herbert Haller (Ed.), Festschrift for Günter Winkler , Vienna 1997, Springer Verlag, p. 6.
- ↑ See: The Fiesco Conspiracy at Genoa , Sixteenth Appearance.
- ^ Armin von Bogdandy et al. a., Handbook Ius Publicum Europaeum: Constitutional Law in Europe , Heidelberg 2007, CF Müller Verlag, ISBN 978-3-8114-9574-6 , Volume 1, § 7, margin no.61.
