permission
The permission , even concession (of Latin concedere concede 'allow'), is one of a Authority issued statement , with a particular behavior authorized or a request is approved.
General
As in Germany, many economic systems are subject to the basic right of general freedom of action ( Article 2, Paragraph 1 of the Basic Law ), so that economic agents are predominantly not hindered in their activities by the state intervention administration . This expresses the freedom of trade . From a certain level of the hazard prognosis, however , the legislature moves away from the principle of freedom from permission and subjects certain economic activities to preventive state control. The exercise of a large number of professions and the provision of various services by private individuals then require a permit from the competent authority. For example , anyone who wants to transport people by bus or taxi ( Section 2 (1) PBefG ), wants to run a café , inn or restaurant ( Section 2 (1) GastG ) or sells goods in the travel trade ( Section 55 (2 ) GewO ), requires official permission.
The permit corresponds to the consent under civil law . In administrative law , not only is the term permit mentioned, but also synonymous with permit, concession or permit (approval), as is clearly expressed in Section 15 (2) GewO. A grant is required if a state privilege or administrative monopoly exists for certain activities . In the medical professions , one speaks of the license to practice medicine (e.g. for doctors in accordance with § 12 Paragraph 1 BÄO), admission to the legal profession becomes effective when a certificate is issued by the Bar Association ( § 12 Paragraph 1 BRAO ). If one of these types of permit is missing, the establishment of a company or continuation of operations or activities can be prevented by the competent authority. In terms of administrative law, in addition to the permit (“may”), there are further administrative forms of action: the command (“should”) and the prohibition (“not allowed”).
Legal issues
In administrative law , permission is granted on request , for example in the case of businesses that require a permit in accordance with Section 30 ff. GewO. The administrative procedure begins with the application ( Section 22 VwVfG ). The applicant holds the position of the procedure involved ( § 13 , para. 1, no. 1 VwVfG). The procedure ends with the granting or refusal of the permit. Both are an administrative act , so the refusal of the permit can be challenged by legal means. If an applicant fulfills the legal requirements, he or she has a direct legal right to be granted permission. He is then given a permit ( Section 3 (1) GüKG , Section 55 (2) GewO), a permit (Section 2 (1) PBefG, Section 4 (1) BImSchG ), a license ( Section 30 (1) GewO) or approval of vehicles for use on the road ( Section 16 (1) StVZO , operating permit in accordance with Section 19 (1) StVZO). The bestowal is a subjective public right that is to be judged according to the same rules of private law as property . The Muter is granted mine ownership, which gives him the right to appropriate the minerals and natural resources in the lent mine field ( § 8 BBergG ). The requirements for permission to set up a credit institute ( banking license ) in accordance with Section 32 KWG are particularly extensive , with the content of the permit application even being prescribed by law. Insurance companies require the approval of the supervisory authority to operate their business ( Section 8 VAG ). The tenant is under § 540 para. 1 BGB without the permission of the owner is not entitled to use to leave a third of the leased property, in particular, they continue to rent. In sports is playing license authorizing a license player to play mode . Anyone who drives or operates an aircraft ( air driver ) requires a permit ( Section 4 (1) LuftVG ).
A permit may only be provided with requirements , conditions or time limits if this is provided for by law. For example, in the context of temporary employment, the permit according to Section 2 (2) AÜG can be granted under certain conditions and linked to conditions in order to ensure that no facts arise that justify the refusal of the permit under Section 3 AÜG. The revocation of a lawfully granted permit is to be regulated according to the principles governing the beneficiary administrative act ( Section 49 VwVfG ). A reservation of revocation would only be permissible if the applicable law expressly allows this. By revoking a permit with the reservation of revocation, what was initially permitted becomes something that is prohibited by law; the reservation of cancellation is a condition subsequent .
A permit must be refused if the legal requirements for granting the permit are not met. Often the permit is refused if the applicant does not have the required reliability (e.g. Section 4 (1) No. 1 GastG, Section 11 BBergG).
species
A distinction must be made as to whether the permit results from a "repressive prohibition norm", in which a general prohibition only allows certain exceptions ( dispensation , exemption, permission) or whether the permit is granted from a "prohibition norm with reservation of permission" (permit in the narrower sense) . The latter is intended to ensure that the activity dependent on a permit is subjected to preventive controls by the authorities. In the case of a building application , the authority wants to check whether a building project complies with the applicable building law and the recognized rules of technology before granting a building permit in accordance with Section 30 of the BauGB . The exemption, on the other hand , is intended to compensate for the hardship of legal regulations that were not intended for the specific case. For example, the road traffic authorities can issue an exemption from the general stopping and parking bans under Section 12 (4) of the StVO in accordance with Section 46 (1) no. 3 of the StVO .
International
In Switzerland , the word "permit" is preferred, so there is the restaurant industry operating license, the construction , the building permit or immigration law , the residence permit . Even Austria preferred the authorization. The permission in the Anglo-Saxon area ( English permission ) is also a state act .
See also
literature
- Hartmut Maurer, General Administrative Law , 11th edition, Munich 1997.
