Real act
In jurisprudence, a real act is understood to be a purely factual legal act . In civil law the Realakt to be legal transaction and the obligations similar action in administrative law it becomes the administrative demarcated. The opposite is the legal act .
General
In contrast to legal transactions with at least one declaration of intent , the legal consequence in the real act occurs regardless of whether this legal consequence was intended and intended or not. As a legal act, the real act leads to a legal consequence prescribed by law. This applies to both civil law and public law .
civil right
General
Civil law does not deal with the concept of the real act. Real acts are acts of will directed towards an actual success - and not towards a legal success - which by virtue of the law - either alone or in connection with other constituent elements - trigger a certain legal consequence. Since the real act represents a mere act, the provisions on legal transactions cannot be applied - not even by analogy. Furthermore, the acts do not constitute explanations , so that the provisions applicable to declarations of intent do not apply to real acts. Even an incapacitated person can therefore take real acts, and an erroneously made real act cannot be removed by appeal . A real act can of course be part of a legal transaction, it then appears as a further element in addition to the declaration of intent. In that case, however, the declaration of intent is essential for legal transactions, but the real act is only accidental.
species
Actual acts include pure acts such as the acceptance of the object of sale by the buyer ( Section 433 (2) BGB), delivery in the event of a commercial purchase ( Section 377 (1) HGB ), bringing things into rented rooms and at inns ( Section 562 , Section 701 , § 704 BGB), acquisition of ownership ( § 854 BGB), combination (§ § 946 , § 947 , § 951 BGB), mixing ( § 948 BGB), processing ( § 950 BGB), abandonment of ownership ( § 959 BGB) or fund ( § 965 BGB). The creation of works protected by copyright and the debiting of accounts are also understood as real acts.
A real act that alone brings about a legal consequence is the processing of a thing . A real act that leads to a legal consequence in connection with other elements of the act is the handover of the thing in the context of the transfer of ownership according to § 929 Paragraph 1 BGB. In addition to the transfer, an agreement between the seller and the purchaser must come about so that the property is transferred.
Administrative law
Like any state action, the real act must also be in accordance with applicable law . Real files that are assigned to administrative law are called "administrative real files "; they must not violate administrative law or constitutional law. In administrative law, real acts as forms of administrative action are to be distinguished from administrative acts in that they lack the regulatory effect. Notes and instructions as such are only real acts, as are actions that only prepare for an administrative act. Likewise, one of the regulatory offenses committed when an official of a citizen a fill form hand over the police in patrol cars to use running or the garbage disposal the garbage pick up. The administrative act is - like its civil law variant - a pure act, since it changes reality. If, for example, a citizen is granted funds on the basis of an existing legal claim , this is an administrative act ; the actual payout is the administrative act. However, the administrative act does not always have to be preceded by an administrative act that triggers it.
Real acts as actions of the public administration must also comply with the legal system. The administration requires authorization to intervene for incriminating real files . This can be a law or a lawful or at least incontestable administrative act. The legal protection against Real acts by the general power suit or a declaratory judgment ( § 43 Code of Administrative Procedure ) before the administrative courts to obtain. If both a real act and an administrative act are available, the preliminary proceedings and deadlines must be observed. If the real act is unlawful , claims for removal or compensation may exist .
species
There is the lawful and the illegal administrative act. The former is in accordance with the legal system. Legitimate administrative acts include, among other things, the payment of a sum of money by an authority , driving the company vehicle , carrying out a vaccination , immediate execution , the use (not the threat) of coercive measures or official warnings . These have become more topical and, through their effect on an indefinite number of people, have a broad public impact, as not just a single citizen is affected. This includes a list of wines containing glycol and therefore probably harmful to health by the Federal Health Office or the warning against youth sects . An abstract danger is sufficient for the legality of these real acts.
Real act and administrative act
The demarcation becomes difficult if the factual action can also be assigned a regulatory effect , so that there is an action with a double character that is a real act and an administrative act at the same time. An example from the area of standard police measures is the factual search , which can also be understood as an implied order to tolerate this measure.
Since real acts are only carried out factually, it is difficult to classify them - which is important for legal protection - in the area of administrative law or civil law. It is controversial whether and when the statement of a public authority employee is to be assigned to public law and when it is to be assigned to general civil law, i.e. before which court a possible right to omit or revoke the statement must be enforced.
literature
- Martin Schulte: Simple administrative action , Tübingen 1995.
Individual evidence
- ↑ Reinhard Bork, General Part of the Civil Code , 2006, p. 158 f.
- ↑ Otto Palandt / Walter Weidenkaff, BGB Commentary , 73rd edition, 2014, § 433 Rn. 44
- ^ Franz-Joseph Peine, General Administrative Law , 2014, p. 216
- ↑ BVerfG, decision of June 26, 2002, Az .: 1 BvR 558/91
- ↑ BVerwG, judgment of 23 May 1989, Az .: BVerwG 7 C 2.87
