Legal entity principle

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The legal entity principle comes from German administrative law and, depending on the legal opinion of the administrative courts, is important as a precondition for the admissibility of an administrative court action (mainly in northern German federal states) or as a passive legitimation (mainly in southern German federal states). The counterpart is the so-called authority principle .

meaning

Administrative bodies of the indirect state administration are legally independent as legal persons and can therefore be sued in the administrative courts themselves ( Section 61 No. 1 Case 2 VwGO). For the direct state administration , however, the legal entity principle applies ( § 78 VwGO).

The entity principle states that an action against one administrative act does not violate the non-autonomous administrative unit authority must be sent to the administrative procedure in question, but that the legal entity that authority proper defendant to an administrative court action is. This is usually the body to which the authority belongs. This principle for actions for rescission and liability is directly regulated in Section 78 (1) No. 1 of the Administrative Court Code (VwGO). However, the provision can be used analogously for other administrative court actions . Different regulations may exist in the individual federal states. The authority principle ( Section 78 (1) No. 2 VwGO) is regulated, for example, in Section 8 (2) sentence 1 of the Brandenburg Administrative Court Act. In North Rhine-Westphalia it was valid until the law on the modernization and adjustment of judicial laws in the state of North Rhine-Westphalia of January 26, 2011 came into force.

Legal entities of an authority can therefore be the federal government , a federal state or another legally competent corporation or institution under public law . If the plaintiff objects to an administrative act that has been issued by a local authority ( municipality belonging to a district , independent municipality , district as a district authority), the action must in any case be directed against the local authority itself. If the administrative act is based on a decision by a state district office as a district administrative authority, the government or a state authority, the respective federal state must be sued.

exception

In the financial court proceedings, the action is to be directed directly against the authority ( Section 63 FGO).

Irrelevance of the wrong name

If the plaintiff, ignorant of the legal entity principle, directs the action not against the corporation but against the authority, even in the federal states that consider the correct counterparty to be an admissibility requirement, the inadmissibility of the action before the administrative court is not necessarily to be assumed. According to widespread opinion, according to Section 78 (1) No. 1, 2. Hs VwGO, when bringing an action against the legal entity, it is sufficient to state the authority as the name of the defendant.

literature

Web links

Individual evidence

  1. ↑ Law on the establishment of administrative jurisdiction and for the implementation of the administrative court order in the state of Brandenburg (Brandenburg Administrative Court Act - BbgVwGG) in the version of the announcement of November 22, 1996 (GVBl.I / 96, [No. 25], p. 317), last amended by Article 2 of the law of July 10, 2014 (GVBl.I / 14, No. 37)
  2. ↑ cf. OVG Berlin-Brandenburg, decision of September 6, 2013 - Az.OVG 9 S 8.13 , margin no. 10
  3. ↑ Justice Act NRW and contribution / fee notices StGB NRW communication 91/2011 of January 18, 2011
  4. ↑ See Kopp / Schenke, VwGO, 15th edition 2007, § 78 marginal no. 2, 9, 16; Redeker / v. Oertzen, VwGO, 14th edition 2004, § 78 Rn. 4th