Public affairs law
The law of public affairs is part of general administrative law . In order to ensure the public function of things that serve the common good , the law of public things aims to partially "remove" things from civil property law, which is geared towards private use . The expression is misleading because the law of public things does not have special things, but a special legal assignment of the things to the owner. In particular, it regulates the use of the things in the interest of the common good by the general public or specially authorized persons.
Concept of the public thing
The general public opinion includes not only physical objects (objects within the meaning of § 90 BGB ), but also non-physical "objects" such as air , electricity or the open sea . Things in the sense of public things are therefore not limited to the private law term of § 90 BGB, so they do not have to be physical. Because of the purpose of "lifting" certain things out of private property law, it is also argued that the concept of the public matter coincides with § 90 BGB. The provisions on accessories and components of things from civil law are not applicable to the concept of the public thing. In particular, essential components of a thing can be the subject of the special right of dedication . For example, a telecommunications system that is permanently connected to private property, which is only part of the property under property law, can be dedicated to a public purpose without the property itself being affected. Conversely, a dedication can refer to several things in the sense of the BGB, so that they form one thing in the sense of public law. A public path that stretches across several private properties forms a uniform public matter.
Types of public things
The public things can be divided into different groups:
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public matters in external civil use
- Public things in common use can in principle be used by the public without prior authorization. Public roads are an example of this. There is an exception for the special use of public objects in common use, i.e. a use that goes beyond the intended common use : Here, prior approval is required. This applies, for example, to the setting up of tables and seating in front of cafes in the pedestrian zone.
- Public objects in special use can only be used after approval and only to the approved extent. This applies to the water management use of public waters.
- Public things in institutional use are, for example, public institutions ; the term “establishment” is therefore not restricted to establishments under public law .
- Public things in internal administrative use are those that are only available to the public administration to fulfill their tasks, i.e. from the ballpoint pen in the office to the company car to the official building.
- Public affairs are also those state church corporations under public law that are dedicated to their purpose. These include, for example, church buildings and bells . Often it is so-called res sacrae .
On the other hand, things that are privately owned and made available to the general public by them (so-called actual "public things") and financial assets do not count as public things . Financial assets include things that benefit the general public only indirectly through their income through commercial use.
Legal nature of public matters
With regard to the legal nature of public matters, two different approaches are followed. On the one hand, the legal figure of “public property” is created in public things, which results in a dichotomy between the private and the public property system. The other approach is a dedication of private property for public purposes (dualistic construction).
Public property
The legal institution of public property has been introduced in Hamburg by the Road Act for all public roads, roads and laws (Section 4 (1) HamWG). In response to the 1962 storm surge with dike Planning Act has been extended from April 29, 1964 this legal institution on dike Land (§ 4a HamWaG). Public property is to be understood without reference to the rules of private property (§§ 4 Paragraph 1 Clause 5 HamWg, 4a Paragraph 2 Clause 3 HamWaG). Public property as a comprehensive real right has otherwise not prevailed because there is no legal matter that is comparable to civil property law and which public property law would first have to specify.
Dualistic construction
The dualistic construction changes the content of private property. Through dedication the limited only by the rights of others property (is § 903 BGB) so limited in favor of the common good that that which the matter has dedicated (public property owner) or third parties may use the thing in individual relationships or the owner certain actions to has failed (public earmarking). Therefore, in the case of a property right to a thing restricted by dedication, the owner can no longer deal with the thing at will and exclude anyone from affecting the thing. The dedication also creates a public maintenance obligation for the thing ( construction load ). The legal effect of the dedication is comparable to a kind of “public” easement that weighs on private property . As a limited real right, the dedication of a thing can only take place by law or on the basis of a law ( legal reservation , Art. 14 GG ; a. A. also by customary law ). The consequence of a dedication is that ownership of a thing can no longer be exercised for purely private purposes.
Public things are things that are in the private property of a sovereign or a citizen that has been changed by dedication and that are actually put into service. The great advantage of the dualistic construction compared to a dichotomous property order is that for the right to property in a public thing, the provisions on civil property law can be used directly. Private property is overlaid by a public-law property rule . In this construction, a distinction is made between the following people who are entitled or obliged in view of the public cause:
- the private owner ( § 903 BGB) of the public property
- the public property lord who dedicated the matter
- the person who has to ensure the maintenance of the public matter ( building contractor )
- the person who is entitled to use the public object from the dedication ( authorized person )
These people often coincide or are mutually dependent. Thus, in § 2 Paragraph 2 Alt. 1 FStrG, provided that the carrier of the road construction load (according to Section 5 Paragraph 1 Sentence 1 FStrG usually the federal government) is also the owner of the property used for the road or, according to Section 2 Paragraph 2 Var. 2 FStrG the owner consents to the dedication or the public property owner is contractually permitted. The federal government can also procure property by way of expropriation . According to Section 2 (2) FStrG, another real legal position (such as a private easement) of the public property lord is sufficient.
The person directly entitled to the matter can also be the public property lord himself, as with matters in administrative use. In the case of items in institutional use, initially only the public property owner himself is entitled to the items. For their part, the users of the institution are only entitled to use it via a mandatory legal relationship, such as a statute or an administrative act.
Public things in institutional or administrative use
In the case of public things in institutional or administrative use, there are doubts as to whether a dedication is even necessary for the establishment of the property as a public thing. In the case of things in institutional use, it would be conceivable that the public property lord could, by virtue of a dedication, claim the owner with the tolerance of use by the citizens. This view is controversial because such a dedication needed a legal basis. But that is missing. In addition, the citizen does not use the thing in institutional use by virtue of a limited right in rem. The public law entitlement to admission to municipal institutions (e.g. Art. 21 Paragraph 1 BayGO) is of a contractual nature. It only gives the citizen a right to the establishment of a user contract or other public-law usage relationship (statute, administrative act).
In the case of things in administrative use, it is also conceivable that the owner has to tolerate use by the public property lord. Here, too, there is no legal basis.
Occasionally, the legal basis for the issuing of dedications of things in institutional or administrative use is seen in common law . This view is controversial with regard to Article 14 of the Basic Law. A dedication should be assumed for things that belong to the administration or the institution and serve their functionality.
Against a dedication of things in institutional or administrative use speaks also that the carrier of the administration of the thing upon termination z. B. has to surrender a rental agreement by the owner. The limited real right “dedication” would not expire if a mandatory contract was terminated. However, imposing an obligation to tolerate and omit the owner in favor of the common good even after the termination of the rental contract is not justifiable without a legal basis.
Public matters of religious and ideological communities
Religious and ideological communities in Germany can be organized under public law ( religious societies under public law ). Therefore it is possible for them to create public things through dedication , although they are not state organizations ( separation of state and church ). The authorization to dedicate and de- dedicate arises directly from the status as a public corporation according to Art. 140 GG i. V. m. Art. 137 para. 5 Weimar Constitution . A recognition of the church dedication by state authorities is not required; it is an act of church activity under public law, which follows directly from its corporate quality and is subject to its right to self-determination .
The dedication is carried out either explicitly by a church administrative as a decision of the respective lead member ( Parish Council , Parish line ) or implied by appropriate use. The public-law dedication is widely used to conclude that there is administrative law (e.g. against the ringing of liturgical bells).
The “ res sacrae ” are to be distinguished from the ecclesiastical public affairs created in this way, which are often, but not necessarily, dedicated (not for example in the case of communities organized under private law that cannot act under public law). Conversely, not every public cause of a religious community has to be considered a res sacra.
The dispute over the St. Salvator Church in Munich, in which ten court decisions including one decision of the Federal Constitutional Court were issued over 20 years , gives an insight into the numerous legal problems that can be connected with church dedication acts.
literature
- Franz-Joseph Peine : General Administrative Law , 7th edition. 2004, ISBN 3-8114-9017-6 .
