Subsequent reasons
In administrative procedural law, the addition of reasons refers to the addition of a contested administrative act by the defendant authority to include additional factual or legal aspects in administrative court proceedings.
A distinction is to be made between adding reasons and the mere making up of the reasons under Section 45 (1) No. 2 VwVfG if the administrative act, contrary to Section 39 VwVfG, was issued without giving reasons. Here the justification can be made up to the last factual instance and the formal illegality can be cured in this way (Section 45 Paragraph 1 No. 2, Paragraph 2 VwVfG).
The postponement of reasons is not expressly regulated by law, but is considered by the case law in every factual instance to be permissible if the reasons already existed when the administrative act was issued and the content of the administrative act is not changed, for example by changing the administrative act to a completely different one Legal basis is supported. The person complained of may not be impaired in his legal defense, for example by not being granted a legal hearing on the subsequent point of view.
The administrative court regulations in § 114 sentence 2 VwGO explicitly allow reasons to be added in the case of a discretionary decision if the authority's discretionary considerations are to be supplemented in the administrative court proceedings. This makes the administrative decision substantively lawful and the action unfounded. However, this must be distinguished from the case that there is a complete loss of judgment. Here, the exercise of discretion can be made up for if the need for a discretionary decision only arises in court proceedings. Administrative acts with permanent effect may be based on new discretionary considerations for the future if a legislative change that is significant for the exercise of the discretion has been passed in Parliament.
literature
- Martin Axmann: Posting reasons in administrative litigation. Peter Lang Verlag , also Univ.-Diss. Würzburg (no year). Table of contents online
Individual evidence
- ^ Kothe in Redeker / v. Oertzen, Administrative Court Regulations, 15th edition 2010, § 108 Rn 28ff
- ↑ BVerwG, judgment of December 13, 2011 - 1 C 14.10
- ↑ First-time exercise of discretion in the process against expulsion, press release of the Federal Administrative Court No. 109/2011 of December 13, 2011
- ↑ BVerwG, judgment of June 20, 2013 - 8 C 46.12
