Passive legitimation

The capacity to be sued is a term from the litigation relates to the passive property, authority or material legitimacy. It is to be distinguished from the litigation authority .

Passive legitimation concerns the position as the correct defendant and holder of the disputed right. The question is judged according to substantive law.

Several people can also be passively legitimized, for example a joint partnership .

On the plaintiff's side, one speaks of active legitimation .

Civil litigation

Passive legitimation is often problematic in the case of a majority of persons involved, for example in the civil law company , also known as the BGB society or GbR . If a claim is made against a GbR, according to earlier opinion, due to the lack of party ability, it was not the company that was passively legitimized, but its shareholders . However, this opinion has been wavering in Germany for several years, which is mainly due to process-economic reasons: A GbR can consist of a large number of shareholders and in the event of a lawsuit, all shareholders would have to be sued instead of the GbR. By judgment of 29 January 2001 has BGH the civil law final for a party to and in civil proceedings declared passively legitimized. In addition, however, the individual partners of the GbR are also passively authorized, as they are liable for the company's debts.

Passive legitimation is also problematic for parties by virtue of office , for example for the insolvency administrator , executor and administrator of the estate . This raises the question of whether the party is to be sued by virtue of office or the legal entity (the debtor in bankruptcy proceedings , the heir in the execution of the will or the administration of the estate):

After insolvency proceedings have been opened, it is no longer the debtor himself who is passively legitimized, but the insolvency administrator . A lawsuit is therefore to be directed against him as an insolvency administrator.
If the execution of a will is ordered, in most cases, however, it is not always the executor to be sued ( § 2213 BGB ).

In the absence of the defendant's passive legitimation, the action is admissible but unfounded.

Administrative process

According to Section 78 Paragraph 1 No. 1 VwGO , the action in the administrative procedure must be directed against a very specific respondent. A lawsuit can only be successful if it is directed against the right defendant. This is to be named as the opponent in the application . However, it is sufficient to state the authority (Section 78 (1) No. 1 2nd half-sentence VwGO).

Whether a lawsuit against the wrong defendant is inadmissible due to a lack of passive litigation authority (then: litigation ) or due to a lack of passive legitimation is admissible but unfounded (then: factual judgment ) is disputed. The prevailing opinion and the Federal Administrative Court come to the conclusion that Section 78 regulates the passive legitimation and thus the question of justification and not of admissibility. This is countered by the fact that the federal legislature does not have the competence to regulate the passive legitimation - a question of the factual competence - of individual authorities in the VwGO.

This dispute, which at first glance turns out to be impractical, can be relevant to the decision when it comes to the suspensive effect of an action for avoidance directed against a false defendant. If the action for rescission were admissible but unfounded, this would still result in suspensive effect according to Section 80 (1) sentence 1 VwGO. If, on the other hand, the action is dismissed as inadmissible, then, since the prerequisites for a decision on a factual judgment are not met, the prevailing opinion is that it cannot have suspensive effect.

Section 78 VwGO differentiates between the legal entity principle (para. 1 no. 1) and the authority principle (para. 1 no. 2). In principle, the legal entity principle applies, according to which the action is to be directed against the federal government , the state or the corporation whose authority hasissued, rejected or omittedan administrative act. The lawsuit can also be directed against the authority itself (authority principle) ifthis is expressly permitted by state law. If the legal entity principle applies due to the lack of national legal provisions, it can be difficult for the citizen in individual cases to find the right defendant. However, since the indication of the authority is sufficient for the designation (§ 78 Paragraph 1 No. 1 2nd half-sentence VwGO) and this is usually easy to determine, the citizen does not have any serious disadvantages.

Austria and Switzerland

In Austrian civil procedural law, the decision on the question of factual legitimation (active or passive legitimation) is “nothing other than the merit decision on the claim for action with regard to its subjective requirements. It is therefore a decision on both a question of fact and a question of law . "

In Switzerland too, active and passive legitimation are material process requirements. They belong to the foundation of the action and must be asserted and proven in detail by the plaintiffs.

literature

Erich Theodor Garlichs: Passive processes of the executor . Konstanz, Hartung-Gorre Verlag 1996
Walter Stiebeler : The relationship between litigation and factual legitimation. Hamburg, 1949