Jurisdiction

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In public law , jurisdiction or competence determines which authority or which court is legally authorized to act in an individual case and, if necessary, obliged. The factual and local jurisdiction is a formal requirement for the legality of public-law administrative action and for the activity of the courts. It is fundamentally determined by the constitution.

Germany

Constitutional foundations

From a constitutional point of view, the responsibility of a public body follows on the one hand from the separation of powers , an element of the rule of law , and on the other from the federal principle .

Separation of powers

The jurisdiction of the state authority is initially functionally defined: the legislation sets the law, the public administration executes the laws, and in the event of a dispute , the judiciary decides on the legal situation (the meaning of the legal rules) and at the same time creates a basis for enforcement of the law in individual cases. In this sense, an organ may only act within the scope of the competences that the constitution assigns it functionally.

A special case is the law-making by the administration in the form of ordinances and statutes (so-called substantive or sub- statutory law ). It requires a formal legal authorization, which in turn must meet certain requirements ( Art. 80  GG; materiality theory ). Furthermore, the jurisprudence also creates so-called judges ' law, which is able to develop a life of its own alongside the positively set law. In constitutional jurisdiction in particular , there may be overlaps with the competence of the legislature, which are discussed under the topos of judicial self-restraint .

State principle

Another structure follows from federalism : The competences of the three public powers are distributed among the federal government, the states and the municipalities. The legislative competence follows from Art. 70  ff. GG. It is therefore fundamentally up to the federal states; only in the subject areas expressly listed does it lie exclusively or in competition with the federal government. In the area of ​​public administration, too, the principle applies that the laws are implemented by the federal states ( Art. 83  ff. GG). The federal administration is only active here in exceptional cases. And also in the case law, the courts of the respective country are initially called upon ( Art. 92  ff. GG).

Regulations of jurisdiction in detail

Public administration

The public administration body responsible in each individual case is to be determined in accordance with simple law. It is based on the administrative structure , in which a specific agency is responsible for a subject area in terms of subject matter and location. So it is part of the right to organize. In this respect, a distinction is made - “instantaneously” - usually with a three-tier administrative structure lower, upper and supreme administrative authorities. Also Entrusted may be responsible for completing a specific task and act insofar sovereign.

For example, the police laws of the federal states stipulate that the local general regulatory authority is fundamentally responsible for police and regulatory law . It is set up in the districts and urban districts. For certain local matters, however, the municipal regulatory authority is factually and locally responsible, for example the local road traffic authority for regulating traffic on local roads.

Another example is the responsibility of the employers 'liability insurance association as the carrier of the statutory accident insurance for work accidents ( § 8  SGB ​​VII) in a certain branch of industry (factually; in accordance with the statutes of the employers' liability insurance association) and in a certain district (locally, if there are accident insurance institutions in the branch of industry who are only responsible for a certain local area) for certain insured persons ( § 2  ff. SGB VII).

More recently, the Federal Constitutional Court has dealt in particular with the jurisdiction rules in the law of the basic security for job seekers ("Hartz IV"), which was newly introduced in January 2005 . The local responsibility of the provider of basic security for jobseekers is based on the habitual residence of the person in need of assistance ( Section 36  SGB ​​II). The administrative agency is basically the Federal Employment Agency, exceptionally an approved municipal agency in its place (so-called option municipality , § 6  SGB ​​II). In order to fulfill their tasks, the employment agencies and those municipalities that have not been approved as sponsors themselves establish working groups (so-called ARGEn, Section 44b  SGB ​​II). In its judgment of December 20, 2007, the Federal Constitutional Court declared this form of organization to be incompatible with the Basic Law and instructed the legislature to create a new regulation by the end of 2010. The court interpreted the provisions of Art. 83  ff. GG in such a way that a so-called mixed administration was not compatible with the federal system and the rule of law.

Jurisprudence

The jurisdiction of the courts is based on judicial constitutional law . Here, on the one hand, a distinction must be made between the legal process ( ordinary jurisdiction (civil and criminal matters), administrative jurisdiction with the special branches of financial and social jurisdiction and voluntary jurisdiction ) and, on the other hand, the appeal within a legal process (in ordinary jurisdiction, for example: district court , Regional Court , Higher Regional Court , Federal Court of Justice ).

The factual jurisdiction of the courts within the same legal process is based on the respective procedural rules ( civil procedure code , criminal procedure code , administrative court code , financial court code , social court law ). In civil proceedings, the amount in dispute is particularly important because, according to Section 23 No. 1 GVG, civil disputes with a value of more than 5000 euros are no longer to be decided by the local court, but by the regional court (apart from this, matters regardless of the value in dispute are cataloged by the local courts assigned according to § 23 No. 2 GVG). In criminal proceedings, the jurisdiction of the court is determined by the expected sentence ( § 24  ff. GVG).

The local jurisdiction follows from the respective national implementing laws, in which court districts have been determined, as well as from the place of jurisdiction . In disputed cases, all jurisdictions provide for a judicial clarification of local jurisdiction through a higher court.

If the factual jurisdiction in individual cases is unclear because several courts have legally declared that they have no jurisdiction, the respective supreme court of the federal government can be invoked to resolve this conflict. Although this is not regulated by law, it was developed from judicial law and corresponds to established case law.

Within a court the jurisdiction of a single judge or of a panel according to the determined by the way the schedule of . Its purpose is to ensure that no one is deprived of his legal judge ( Art. 101  GG). The division of responsibilities is decided by the judges of the respective court (self-administration of the judiciary).

If the action before the factual or not locally competent court levied a done referral to the competent court.

The Federal Constitutional Court is not part of the instance , because it is not a so-called super - revision instance . The Federal Constitutional Court only acts in the cases that are  conclusively listed in Art. 93 . In the constitutional complaint procedure , it only checks the violation of “specific constitutional law”.

Special regulations

Urgent competence of the police

Special regulations apply to emergencies in which the competent authority or the competent court cannot be reached or in which they cannot act quickly enough to protect the rights of the person concerned. In these cases, for example, the law enforcement police have urgent authority vis- à- vis the general regulatory authority.

On-call duty of the district court

In the event that no other court can guarantee legal protection in good time, the local court's standby service is available for requests from all jurisdictions in the respective regional court district, including on Sundays and public holidays as a limited emergency service. The state governments can determine by ordinance "that a common on-call duty roster is drawn up for several local courts in the district of a regional court or that a local court takes over on-call duty in whole or in part, if this is indicated to ensure a more even burden on the judges with on-call duty" ( Section 22c  GVG ).

International jurisdiction

In cases where a border is crossed, international jurisdiction is based on the relevant international and European treaties and other provisions ( Regulation (EC) No. 44/2001 (EuGVVO) , European jurisdiction and enforcement agreement ).

See also

literature

  • Konrad Hesse: Basic features of the constitutional law of the Federal Republic of Germany . 19th edition. CF Müller, Jur. Verlag, Heidelberg 1993, ISBN 3-8114-8293-9 .
  • Hans-Peter Bull: General administrative law: a textbook . 6th edition. CF Müller, Jur. Verlag, Heidelberg 2000, ISBN 3-8114-2049-6 , § 3 3 e) = Rn. 146ff. .
  • Hartmut Maurer: General administrative law . 11th edition. CH Beck, Munich 1997, ISBN 3-406-42619-0 , § 21 III = Rn. 44ff. .
  • Thomas von Danwitz: European administrative law . Springer-Verlag, Berlin / Heidelberg 2008, ISBN 978-3-540-79878-1 , doi : 10.1007 / 978-3-540-79878-1 (partial full text online).
  • Christoph G. Paulus: Law of Civil Procedure . Trial proceedings, foreclosure and European civil procedure law. Springer-Verlag, Berlin / Heidelberg 2010, ISBN 978-3-540-88061-5 , p. 13–24 , doi : 10.1007 / 978-3-540-88061-5 (partial full text online).
  • Heinrich Nagel and Peter Gottwald : International Civil Procedure Law . 6th edition. Otto Schmidt, Cologne 2006, ISBN 978-3-504-47096-8 , § 3 - International jurisdiction .
  • Haimo Schack : International Civil Procedure Law . 4th edition. CH Beck, Munich 2006, ISBN 3-406-54833-4 , § 8. International jurisdiction (marginal numbers 185-409) .

Web links

  • Duden: jurisdiction. In: Law AZ. Technical lexicon for studies, training and work. Bibliographisches Institut & FA Brockhaus, 2007, accessed on September 16, 2010 (licensed edition Bonn: Federal Center for Political Education, 2007).

Individual evidence

  1. ^ Hans-Peter Bull: General administrative law: a textbook . 6th edition. CF Müller, Jur. Verlag, Heidelberg 2000, ISBN 3-8114-2049-6 , Rn. 146 ff., 146 .
  2. ^ Konrad Hesse: Basic features of the constitutional law of the Federal Republic of Germany . 19th edition. CF Müller, Jur. Verlag, Heidelberg 1993, ISBN 3-8114-8293-9 , Rn. 27 .
  3. ^ Konrad Hesse: Basic features of the constitutional law of the Federal Republic of Germany . 19th edition. CF Müller, Jur. Verlag, Heidelberg 1993, ISBN 3-8114-8293-9 , Rn. 475ff, 476 .
  4. ^ Konrad Hesse: Basic features of the constitutional law of the Federal Republic of Germany . 19th edition. CF Müller, Jur. Verlag, Heidelberg 1993, ISBN 3-8114-8293-9 , Rn. 235ff. .
  5. ^ Hans-Peter Bull: General administrative law: a textbook . 6th edition. CF Müller, Jur. Verlag, Heidelberg 2000, ISBN 3-8114-2049-6 , Rn. 146ff., 147 .
  6. ^ Volkmar Götz: General police and regulatory law . 12th edition. Vandenhoeck and Ruprecht, Göttingen 1995, ISBN 3-525-18239-2 , § 23. Organization of the regulatory administration .
  7. ↑ BVerfG: Judgment - 2 BvR 2433/04 - 2 BvR 2434/04. December 20, 2007, accessed September 16, 2010 .
  8. ↑ BVerfG: Judgment - 2 BvR 2433/04 - 2 BvR 2434/04. December 20, 2007, accessed on September 16, 2010 (Rn. 144ff., 207).
  9. ↑ The concept of mixed administration and its admissibility have long been the subject of literature and case law, cf. in summary Bodo Pieroth: Hans D. Jarass, Bodo Pieroth, GG . 7th edition. 2004, Art. 30 GG Rn. 10 .
  10. ↑ BVerfG: Judgment - 2 BvR 2433/04 - 2 BvR 2434/04. December 20, 2007, accessed on September 16, 2010 (Rn. 153ff., 157): "The Basic Law also excludes so-called mixed administration, apart from limited exceptions (cf. BVerfGE 63, 1 <38 ff.>; 108, 169 <182> with further references). The regulations of Art. 83 ff. GG are based on the distinction between federal and state administration. [...] The fundamental separation of the administrative areas of the Federation and the Länder guarantees the responsibility of the acting state organs through a clear allocation of competencies aimed at completeness. Against this background, when determining administrative responsibilities, the legislature has to comply with the rule of law principles of clarity of norms and freedom from contradictions (cf. BVerfGE 21, 73 <79>; 78, 214 <226>; 98, 106 <119>; 108, 169 <181 f .>) in order to protect the federal states from intrusion by the federal government into the area of ​​administration reserved for them and to prevent the principle of Article 30 of the Basic Law from being undermined (cf. BVerfGE 108, 169 <181 f.>). From the point of view of the citizen, administrative organization based on the rule of law also means, first and foremost, clarity in the order of competencies; because only in this way will the administration in its competencies and responsibilities become "tangible" for the individual (cf. Schmidt-Aßmann, Der Rechtsstaat, in: HStR, 3rd edition. § 26 marginal number 79 ” .
  11. ^ BGH, July 26, 2001, AZ X ARZ 69/01
  12. ^ Federal Constitutional Court, decision of the First Senate of June 10, 1964 - 1 BvR 37/63 -, BVerfGE 18, 85 (92) .