Must, should and can rule

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When Must - Should - and can provisions (also: - determination ) is, by legal standards , refer to the different degrees of compliance claim, the legislature connect with their standards.

General

The legislature or the executive formulated legal norms (among other decrees , laws , public statutes , regulations , constitutions , decrees , regulations ) linguistically so that they are the addressees to a certain act , omission or acquiescence force (mandatory regulation), or pretend they rule from which they may deviate (target specification) or issue a completely non-binding standard (optional specification). When it comes to legislation , the criterion of effectiveness must be observed, among other things , as to whether legal provisions are being followed and applied at all. Depending on the type of standard or the content of the standard, the aim is to determine the degree of compliance with a regulation (including a prohibition or a requirement ). If the behavior of all addressees of the norm can be traced back to the legal norm, there is a degree of compliance of 100%, which in the ideal case is to be expected with mandatory regulations.

Must-rule

General

A mandatory requirement is a requirement that must be adhered to in any case, i.e. one that does not allow discretion . In this case there is always a bound decision .

example

Section 4 (1) GastG : "The permit is to be denied if [...]".

Target regulation

General

A target regulation is a more or less urgent recommendation from a standard giver. It prescribes an authority to do or not to do as a rule, but not compulsorily, so it only grants "limited discretion". For a legal request, a "should-rule" can express that the legal consequence of a violation is less serious.

Demarcation

To distinguish it from the mandatory regulations and the optional regulations, the following sentence is suitable: “The 'should' is closer to the 'must' than to the 'can'.” “It must also be distinguished from the intended discretion .

example

Section 36 (1) sentence 2 SGB ​​XII : "You should be taken over if this is justified and necessary and otherwise there is a risk of homelessness."

Can determination

General

An optional provision is not a provision in the strict sense, but a provision “which can be followed in individual cases, but does not have to be followed”, ie more of a kind of authorization than a provision. The term "discretionary provision " should therefore be avoided. According to some opinion, an optional formulation means that free discretion is granted in the application of the law, whereby the usual discretionary limits and special discretionary cases apply.

Demarcation

In any case, an optional provision grants a greater degree of discretion than a target provision.

example

Section 16, Paragraph 3, Clause 1 of the HwO : "If the independent operation of a trade subject to licensing is carried out as a standing trade contrary to the provisions of this Act , thecompetent authority under state law can prohibit the continuation of operations."

Legal language

The reader can tell from the legal language whether it is a must, should or can rule. In terms of language, mandatory provisions refer to “must”, “duty”, “legal obligation”, “has to fulfill”, “obligated” or “must not / cannot” ( negative mandatory requirement ). Mandatory regulations are a mandatory order that cannot be deviated from. A violation of mandatory provisions leads to the nullity of the desired legal result in civil law and to criminal liability in criminal law .

Target regulations contain the wording "shall". However, it should not always be assumed that these formulations are target regulations. For example, here § 6 GBO provides that a land only another piece of land as part be attributed to when hereof confusion is to be feared. In administrative regulations like this one, the word “shall” is often used, although in this case the land registry is obliged to attribute it. The ZPO also recognizes that mandatory provisions (such as Section 141 (1) ZPO) must be followed. A prescription requires no less obedience than a mandatory prescription; but the legal consequence of a violation is less serious. The violation of a target provision in the BGB has fewer disadvantages or requirements (see, for example, Section 2247 BGB on the handwritten will ).

Optional provisions contain the wording “may”, “may” or “does not need” ( negative optional requirement ). “May” contains a mere permission which otherwise does not exist. The typical formulations used by the legislator do not always allow a clear determination of the discretion in an optional provision . For example, the “can” in Section 16 (3) sentence 1 of the HwO is understood to mean that, if the prerequisites for the offense are met, there is usually a reduction in discretion to zero , which is justified with the purpose of the authorization. Unless there are special circumstances, the operating ban is then the only appropriate discretionary decision.

Web links

Individual evidence

  1. ↑ Thomas Widmer / Wolfgang Beywl / Carlo Fabian (eds.), Evaluation: Ein systematisches Handbuch , 2009, p. 54
  2. ↑ Keyword "Must-rule, must-rule". In: Duden. Retrieved July 15, 2018 .
  3. ↑ Keyword “Must-rule”. In: Legal Lexicon. Retrieved July 15, 2018 .
  4. ↑ "Since 2002, a so-called target regulation has been in force in Switzerland, i.e. a recommendation by the legislature." [Unknown]. (No longer available online.) Formerly in the original ; Retrieved December 10, 2010 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. @1@ 2Template: Dead Link / www.appenzell24.ch   quoted from the vocabulary portal of the University of Leipzig , “Soll-Vorschrift”. Retrieved July 15, 2018 .
  5. ↑ Keyword “target regulation”. In: Legal Lexicon. Retrieved July 15, 2018 .
  6. ↑ Legal terminology. In: Handbuch der Rechtsformlichkeit, 3rd edition. Retrieved June 16, 2020 .
  7. ↑ Keyword “can-determination, can-determination”. In: Duden. Retrieved July 15, 2018 .
  8. ↑ Loop: AW: must, should, can - legal degrees. In: JuraForum. Sebastian Einbock (editor in charge), accessed on July 15, 2018 .
  9. ^ Legal encyclopedia, keyword “Can-rule”. Retrieved July 15, 2018 .
  10. ↑ Bernhard Wieczorek / Rolf A. Schütze (ed.), Commentary on the ZPO: Introduction §§ 1-23 , 2015, marginal no. 138
  11. ^ Heinrich Lange, BGB: Allgemeine Teil , 1974, p. 57
  12. ^ Hans Schneider, Legislation: Ein Lehr- und Handbuch , 2002, p. 352
  13. ↑ BVerwG, judgment of July 17, 1986, Az .: 7 B 234/85 = NJW 1987, 143 , 144
  14. ↑ Hessischer VGH, judgment of February 20, 1990, Az .: 11 UE 2161/85 = NVwZ 1991, 280