Legal supervision
In state organizational law, legal supervision is an authority to issue instructions and the authority of a hierarchically higher authority to exercise state supervision by reviewing legality .
General
In administrative organization law, a distinction is made between service , specialist and legal supervision. These three forms are exercised by higher-ranking authorities against lower-ranking ones. And subordination occurs when an authority to issue instructions and assembly powers is equipped ( higher authority ) and other authorities to act or omission can force ( secondary authority ). This subordination relationship forms the basis for exercising legal supervision. She has the task of fulfilling the statutory public duties and obligations of the authorities and the legislative and legality to monitor its management activity and to monitor compliance with the provisions of substantive law. The latter also includes discretionary control in the sense of the lawful handling of discretionary leeway ( § 40 VwVfG). Here, however, similar to the administrative court ( Section 114 sentence 1 VwGO), the supervisory authority only examines whether there has been an excess of discretion or a misuse of discretion, which can be the case if the subordinate authority itself has violated the principles of discretion ; however, the supervisory authority does not make its own (new) discretionary decision.
Not only authorities are checked for legally compliant action within the framework of legal supervision, but all regional authorities such as municipalities , municipal associations or legal entities under public law that are subject to federal or state supervision . For example, the Chamber of Commerce and Industry is subject to the legal supervision of the Ministry of Economic Affairs of the responsible country.
Functions
Legal supervision fulfills two functions, namely legal preservation and protection. While the legal protection function relates to the legally compliant fulfillment of public tasks and represents repressive supervision, the protective function is perceived as preventive supervision through advice and communication and is intended to prevent repressive intervention. Intervention becomes necessary when official measures do not comply with applicable law. Applicable law includes all public law standards including public law contracts and legal norms of the authorities. Technical supervision generally has priority; where it takes place, it has to examine not only the expediency but also the legality of official action.
State organization law
The supervisory authorities exercise legal supervision through observation , intervention and administrative assistance . The supervisory authorities observe the administrative actions of the authorities under their control through the systematic collection and evaluation of information (e.g. through existing notification and approval obligations) in order to be able to identify legal violations. Administrative action must be in accordance with the entire legal system , so that the Basic Law serves as the starting point and all relevant laws , ordinances , statutes , customary law and discretionary decisions must be observed. In the case of the latter, the legal supervisory authority checks whether there are errors of judgment (exceeding or falling short of the scope of discretion and misuse of discretion). If it detects violations of the law, it decides whether to intervene according to its due discretion. This happens through complaints about incorrect administrative files . The complaint is the determination of illegality , which, however, initially does not affect the external impact of administrative acts. However, if the supervisory authority instructs the issuing authority to change or withdraw an unlawful administrative act , even if it has become incontestable ( Section 48 (1) sentence 1 VwVfG), it will also have external effects. Unlawful beneficial administrative acts can be withdrawn in accordance with the principles of general administrative law. Exceptions are administrative acts with cash benefits or divisible benefits in kind, which cannot be withdrawn under certain conditions. If the supervised authority does not comply with the supervisory cancellation request, the legal supervision can carry out a substitute performance.
Individual cases
The public broadcasting According to a judgment of the Federal Constitutional Court (FCC) in February, 1961 ( first broadcast judgment ) "removed from the state influence or at most subject to limited state legal supervision". It is expressly provided for some broadcasters (e.g. Section 54 of the WDR Act ) and is reserved for the responsible Minister-President . All state media authorities are also subject to limited legal supervision under the state media laws; technical supervision is excluded for both of them due to the requirement of being outside the state . Legal supervision is limited to compliance with the respective state broadcasting laws and state broadcasting agreements . The program principles contained therein are, however, withdrawn from legal supervision, because this would mean a state influence on selection, content and design and would thus contradict the right of freedom of the press according to Article 5, Paragraph 1, Sentence 2 of the Basic Law.
The Federal Financial Supervisory Authority is subject to the legal and technical supervision of the Federal Ministry of Finance ( Section 2 FinDAG). Although it exercises a supervisory function vis-à-vis credit institutions , insurance companies and other financial services institutions , this public-law banking supervision is more similar to specialist supervision and is not a state supervision . The authorization to supervise banks results from Section 6 (1) KWG , whereby the Federal Agency can also issue orders under Section 6 (3) KWG. Only public-sector banks there - because of their public status' - State legal supervision which in savings by the municipalities and state banks of the countries is perceived.
According to § 119 GemO BW, the legal supervisory authority of municipalities is the district office as the lower administrative authority, for urban districts and large district towns the regional council , the upper legal supervisory authority is the regional council for all municipalities, the highest legal supervisory authority is the interior ministry . This municipal supervision is limited to legal supervision, so that purely inexpedient municipal action is irrelevant as long as the legality is observed. If, for example, a building permit that has been granted violates the communal right of participation as stipulated in Section 36 (1) sentence 1 of the Building Code, this disregard of the commune's legally guaranteed right to consent leads to the local supervisory authority revoking the building permit.
Religious societies under public law and ideological communities are not subject to any legal supervision , contrary to the correlate theory advocated earlier . Because of the separation of church and state , they are not self-governing state bodies.
International
In Austria , state supervision is carried out through legal supervision and property supervision (in Germany: specialist supervision). The supervision of municipalities is divided into legal supervision and management control . The latter is understood to mean the right to review the entire management of the municipality, including its institutions, businesses and enterprises, for economy , economy and expediency . In Switzerland there is no legal supervision of the cantons over the municipalities , they are rather under the legal supervision of the State Council. The federal supervision of broadcasters is legal supervision in Switzerland and ensures that the public service is carried out in accordance with the law and the license.
Individual evidence
- ↑ Thomas Mann / Günter Püttner (eds.), Handbook of Municipal Science and Practice: Volume 1 , 2007, p. 228
- ^ Gerhard Waibel, Municipal Constitutional Law Baden-Württemberg , 2007, p. 227
- ^ Gerhard Waibel, Municipal Constitutional Law Baden-Württemberg , 2007, p. 227
- ^ Gerhard Waibel, Municipal Constitutional Law Baden-Württemberg , 2007, p. 232
- ↑ BVerwG, judgment of January 23, 1992, - BVerwG 3 C 83.90
- ↑ BVerfGE 12, 205, 261
- ↑ Jutta Stender-Vorwachs (Ed.), Aspects of Media Regulation , 2010, p. 66
- ↑ BVerfGE 59, 231, 258
- ↑ Hans J. Wolff , Administrative Law , Volume II, 1970, p. 207
- ↑ BVerwG, judgment of November 19, 1965, Az .: BVerwG 4 C 133.65
- ↑ Konrad Reuter, Legal Supervision of the Communities and Opportunity Principle , 1967, p. 32
