legality
Legality is the conformity of a legal act with applicable law . The opposite is illegality .
General
In constitutional states , legal acts of the legal entities ( natural persons , companies , associations of persons and the state and its subdivisions) must be based on applicable law. Each of the three state powers ( executive , judiciary , legislative ) is responsible for the legality of its decisions and actions , regardless of the control by the state legal supervision , judicial protection and parliamentary control . The executive branch is doing its actions an independent responsibility for law and legality, the legislation to the constitutional order , the executive power and the case law are bound by law and justice ( Art. 20 , para. 3 GG ).
The examination of legality begins with the determination of the legal basis , as the form, competence and procedure of the examination depend on the latter. The legal term is used in all situations in which decisions are made with legal effect , e.g. B. in administrative law , in constitutional law and in jurisprudence .
Legal issues
A distinction must first be made between legality and constitutionality. A law is constitutional (or unconstitutional) as the legal basis, a contract , measure or administrative act is lawful or unlawful. Constitutionality occurs when a law is in conformity with the constitution .
According to Section 43 (1) VwVfG, an administrative act becomes legally effective at the time of its announcement and, according to Section 43 (2) VwVfG, remains so until it is canceled or resolved; however, it does not have to be lawful. In contrast to legal norms, illegal administrative acts can be legally effective. However, if the illegality is serious, it becomes null and void ( Section 44 VwVfG). A contract is lawful if its components comply with applicable law and they do not violate legal prohibitions or mandatory law . Violate contracts against a ban law, occurs after § 134 BGB as a legal consequence in principle the nullity of the contractual legal obligation business , while the performance of business usually remains effective. If, however, a shift in assets is prohibited ( Section 333 StGB : taking advantage ), the nullity also extends to the performance transaction.
The sale of a pledge, for example, is not lawful according to Section 1243 (1) BGB if the provisions of Section 1228 (2), Section 1230 Sentence 2, Section 1235 , Section 1237 Sentence 1 or Section 1240 BGB are violated.
Legality of administration
Since, according to Article 20.3 of the Basic Law, the public administration is bound by law and statute, it may only undertake administrative acts and other measures that interfere with the freedom and property of the citizen ( intervention administration ) with authorization by legal norms. The legality in general administrative law is the action by a public official or an authority as well as the application of the law free of legal errors and, if applicable, discretionary error . Actions of the public administration can be checked for their legality via the administrative court .
A distinction is made between the formal and material legality of the administrative act. While formal legality deals with the creation of an administrative act, substantive legality relates to its content. Formal legality includes that
- the administrative act from the existing types of administrative activity is the correct form (the administration will have an employment contract with an employee terminate and not by administrative finish );
- the issuing authority must have local and material competence ,
- the prescribed administrative procedure must be followed,
- the prescribed form ( e.g. written form ) must be observed and
- the administrative act must involve other competent bodies, be adequately justified and contain information on legal remedies .
Substantive legality includes the existence of a basis for authorization and the existence of its constituent elements, sufficient specificity of the administrative act (Section 37 (1) VwVfG), the administrative act must be actually and legally compliant, the legal consequences expressed by it must be covered by laws as the legal basis that The legal consequence must be proportionate and free from errors of judgment .
The unlawfulness of an administrative act is a special intermediate stage between its legality and its nullity.
According to § 38 BeamtStG wear officials to the legality of their official acts full personal responsibility, concerns about the legality OF ADMINISTRATIVE arrangements have officers immediately on the official channels to assert
Laws
Also, laws , regulations and other legal norms must legally come about and comply with the law because they can be declared by a court to be invalid otherwise. An example of this is the census judgment of the German Federal Constitutional Court of December 1983, which “overturned” the census law of March 1982. Also have judgments , and decisions. Ä. be lawful by courts ( judges are also bound by law, § 25 DRiG ).
See also
Web links
literature
- Alexander Classen: Representation of interests in the European Union. On the legality of political influence , Springer VS, Wiesbaden 2014, ISBN 978-3-658-05410-6
Individual evidence
- ^ Karl Albrecht Schachtschneider, Principles of the Rule of Law , 2006, p. 110
- ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1070
- ↑ Andreas Wittern, Maximilian Basslsperger, Administrative and Administrative Process Law , 2007, p. 112 ff.
- ↑ Guy Beaucamp / Rainer Lechelt, Examination Schemas Public Law , 2014, p. 104
- ↑ BVerfG, judgment of December 15, 1983, Az .: 1 BvR 209, 269, 362, 420, 440, 484/83
