Modified subject theory
The modified subject theory , formerly known as the special law theory , is a legal doctrine. It serves to determine whether a decisive norm is to be assigned to public law or private law .
The theory of special rights opposes the theory of subordination and replaces its formula of a superordinate / subordinate relationship between state and citizen with that of the "subjectivization" of the relationship. In its original form it goes back to Otto Bachof .
Content of the theory
The modified theory of the subject or modified special legal theory or assignment theory , according to a legal norm (of a regulatory nature, especially as a basis for administrative acts or in support of other legal relationships ) exactly be classified under public law, if the state or any of its subdivisions in their capacity as such party of the legal relationship (and as such are unilaterally legally entitled or obliged). If a state legal person is the subject of the legal norm not in its capacity as a sovereign but only in its capacity as a legal person, it is precisely not a special right of the state, because the fact that it is a legal person under public law acts, is not decisive for the assignment of the authorization or obligation.
Older demarcation theories are the so-called subordination theory and the strict subject theory . The former assumes that - unlike in a private law relationship in which the parties are equal to each other - the parties involved are in a subordinate relationship to each other in public law. The strict subject doctrine complains that this does not correspond to the principles of a free-democratic republic . In a republic, the state can never be in control. Therefore, the strict subject doctrine classifies all state action as public and sovereign and rejects the tax doctrine, i.e. the doctrine that the state can also act as a subject of private law.
criticism
A popular example to reduce this theory to absurdity is the classification of state support for talented students in public law by the Cologne Higher Regional Court . It is often stated that study grants are also granted by private endowment foundations . The privately and voluntarily granted study grants are subject to private law; The contracting parties are responsible for structuring a relationship similar to public law .
And it is precisely the voluntary nature of the services that distinguishes the private law from the public law character. The state has to provide the services. Incidentally, the assessment of voluntariness does not conflict with the fact that z. B. Foundation capital may be earmarked.
In order to classify the legal norm, it is therefore necessary to check who the legal norm is addressing as the bearer of rights and obligations, and a clear distinction must be made between whether contracting parties are addressed directly by a legal norm or whether a link to these provisions is artificially created by another contract becomes.
It should be noted that a superordinate relationship of the state generally corresponds to the liberal-democratic principles of the Basic Law . A closer look at all government actions immediately shows that the state, for example, always restricts one or more basic rights of its citizens. Every form of sovereign action requires, by definition, a superordinate relationship by the state.
Other examples of the failure of Subordinationstheorie example, public contracts , in which a ratio of domination and subordination is not given, as opposed to the right to issue the employer , the guardian of a minor child or the legally appointed supervisor . If the contracts can be clearly assigned to public law, the latter examples come from private law.
See also
Individual evidence
- ↑ Ernst, Christian / Kämmerer, Jörg Axel : Cases on General Administrative Law, 3rd edition, Munich 2016, p. 7.
- ↑ Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 348.
- ↑ OLG Cologne, judgment of July 28, 1966, Az. 10 U 29/66, Leitsatz = NJW 1967, 735.
- ↑ Hans Peter Bull / Veith Mehde: General Administrative Law with Administrative Doctrine , 9th edition, Munich 2016, ISBN 978-3-8114-9349-0 , Rn. 72.
- ↑ Hans Peter Bull / Veith Mehde: General Administrative Law with Administrative Doctrine, Rn. 68 ff.
- ↑ Harald Hofmann / Jürgen Gerke: General Administrative Law , 7th edition 1998 (11th available), ISBN 978-3-555-01872-0 .
