The fact that all action , tolerance or omission has to be based on legal bases is due to the rule of law . If legal acts are based on applicable law, one speaks of their legality . On the other hand, there is illegality if the applicable law is disregarded. Illegality is always confronted with sanction norms, in criminal law by punishment , in civil law by liability for damages . If legal subjects want to avoid these sanctions, they must align their legal acts with the applicable law.
Legal basis means that legal entities ( natural persons , companies , associations of persons or the public administration ) can invoke a justifying reason from laws or contracts in their legal acts .
The legal basis of a legal area is understood to be the entirety of the legal provisions that regulate the legal relationships between the parties involved or with the state. Legal bases provide information on bids and prohibitions . A distinction is made between the following legal bases:
- Written law ( laws , ordinances , statutes );
- unwritten customary law and judicial law (especially the case law of the highest federal courts ) and
- agreed law (e.g. employment contracts or sales contracts ).
Overall, these legal sources result in the legal basis for legal acts by legal entities.
The legal term is of particular importance in administrative law . Since, according to para. 3 GG the public administration is bound to uphold the law, it must administrative acts and other measures in freedom and ownership intervene (the citizen interventional administration ), with only one authorization posh by legal norms. On the one hand, the administration derives its administrative actions from the legal sources of administrative law ; on the other hand, they also show the administration the limits of its actions.
An administrative directive only works within the authorities, so that there is no external effect for the citizen for their classification as a legal basis . According to this judgment, a budget law can be viewed from a constitutional point of view as a sufficient legal basis for a proposed subsidy .
All legal relationships must be based on applicable law; their legal basis is a specific area of law. For example, the employment contract is mainly based on labor law , the sales contract on the sales law of the German Civil Code (BGB) or the patent on patent law . Often, however, a certain area of law does not form the sole legal basis, but several legal bases can influence a legal relationship. To set the legal basis for issuing the work certificate § 630 BGB, § 109 GewO and § 8 BBiG. According to BGB can employees who are not as workers are employed in the termination require a written testimony of a permanent employment relationship. According to (1) GewO , it must contain at least information on the type and duration of the activity ( simple certificate ) for employees . The employee can request that the information also extend to work performance and behavior in the employment relationship ( qualified certificate ). Upon termination of the vocational training relationship, a written certificate must be issued in accordance with (1) BBiG . In the case of a mixed contract, there are naturally at least two legal bases.
The legal basis for the punishment of a committed crime is the criminal offense contained in the Criminal Code (StGB) . For example, the unlawful removal of someone else's movable property is punished as theft in accordance with Criminal Code ; Section 242 of the Criminal Code forms the legal basis for the punishment. The legal basis for the sending of silent SMS by the investigating authorities is Paragraph 1 No. 2 StPO .
Especially in business life it happens that complex contracts are based on a multitude of - possibly conflicting - legal bases, the legal risks of which should be eliminated by legal opinions . For example, the property purchase contract is so complex that it requires certification by a notary in accordance with (1) BGB .
- Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1070
- Willi Groß, Handelsrecht , 1994, p. 10
- Alexander Geller-Sturm, Law for Industrial Foremen IHK - Part 1: Knowledge relevant to the examination , 2016, p. 9
- Günter Krause / Bärbel Krause, The examination of the industrial master - basic qualifications , 2012, p. 13
- Carl Creifelds, Creifelds Legal Dictionary , 2000, p. 1070
- Andreas scenting / Maximilian Basslsperger, administrative and administrative procedural law , 2007, p 21
- BVerwGE 58, 45 , 49
- BGH NJW 2018, 2809