Special legal relationship
In German jurisprudence, a special legal relationship (or special status relationship , special relationship of violence ) is a state of increased ties between the citizen and the state , the intensity of which goes beyond the normal bond between the citizen and the state (general relationship of violence). The designation as a special relationship of violence is usually avoided today because it is associated with further content-related statements that are overwhelmingly no longer shared.
- Employment relationship of civil servants and soldiers
- Penal system
- School and university relationship
- Military service
Civil servants, for example, are “exposed to an increased bond with the state, the intensity of which goes beyond the normal bond of the citizen to the state”.
The use of an institution under public law (example: museum) does not create a special relationship of violence , as this creates no or only a very brief increased bond between the citizen and the state.
Basic rights can be restricted in special legal relationships . In principle, this must result from a parliamentary law that restricts fundamental rights ( authorization to intervene ). Nowadays, following Carl Hermann Ule, a distinction is made between the basic relationship and the company relationship: In the basic relationship, every person is a citizen and therefore has basic rights. Only in the operating relationship should z. B. a civil servant or a student confronts the state as part of their own organization, with the result that they would not be a holder of fundamental rights in the company relationship.
Incidentally, measures within a special legal relationship should not be an administrative act, as they only have an internal organizational effect and therefore have no external effect.
The following are examples that illustrate which measures are administrative acts:
- In the civil service relationship, an administrative act is, for example: the transfer of a civil servant (as opposed to a mere internal-official, status-neutral implementation), the approval of a secondary activity, the granting or refusal of vacation. However, the transfer of an official is not an administrative act (in contrast to a transfer).
- In the school and university relationship, for example, an administrative act is: the decision to move a child to the next higher class, expulsion from school, admission to studies, the evaluation of the university final examination, the issuing of a teaching assignment. No administrative act is: the grading of a class test, the grading in individual subjects.
History of the special legal relationship
In a democracy, external determination is impossible; But even in a democracy there are areas of external determination to which a democratic determination is assigned; Examples are prisons , apparatus of violence (police, military) and psychiatric institutions.
At the beginning of the 20th century, the prevailing view in German administrative law was that those subject to these areas voluntarily renounce the exercise of their basic rights. He is not part of society, but part of the state and therefore not entitled to fundamental rights , but obliged to do so . This was what was meant by the doctrine of the special relationship of violence.
In school , for example, due to the special legal relationship, it was possible for a long time to restrict the basic rights of students without a legal authorization. Measures by the school administration did not have to be based on any legal basis.
That changed with Horst Schüler-Springorum's habilitation thesis from 1967, which was described as pioneering . On the basis of the penal system, he consistently and conclusively described that prisoners are also bearers of basic rights that can only be interfered with on the basis of a law and in a proportionate manner. He postulated rehabilitation as a goal . Since the Federal Constitutional Court followed suit in the prison sentence in 1972 , people in special legal relationships have in principle been entitled to basic rights. The fundamental rights can be restricted, but only to the extent that the purpose of the special legal relationship in question requires it. There are no longer any special relationships of violence in the true sense of the word.
- The restriction of the confidentiality of correspondence of prisoners may be required to safeguard the security and order of the prison. But that does not change the fact that he is initially the bearer of this fundamental right.
The main decisions to restrict basic rights in the particular relationship of violence are to be made by the legislature itself ( materiality theory ) in a parliamentary law ( parliamentary reservation ). The basic right to human dignity cannot be restricted in special legal relationships either.
- The question of whether a civil servant teacher may wear religious clothing while on duty in exercising his or her religious freedom is so important that it has to be regulated by the (state) legislature in a parliamentary act. In contrast, the dissenting judges with echoes of the doctrine of the special relationship of violence: The teacher is not a citizen, but part of the state; her freedom to develop is at the expense of the citizens, which is why she is not entitled to religious freedom.
In addition, when it comes to legal protection against measures in a special legal relationship, a distinction is made between the basic relationship and the company relationship , whereby only acts that affect the basic relationship should be administrative acts . These can be challenged with an action for avoidance. In individual cases, however, legal protection against measures in the operational relationship may also be possible, for example via a declaratory action.
In addition, the special legal relationship only affects the period in which the person concerned is actually subject to it,
- A police officer is prohibited from doing missionary door-to-door advertising for a religious community during his service time ; but he may do this in his spare time.
- Horst Deinert (editor): Introduction to civil service law in North Rhine-Westphalia for staff representatives and shop stewards. Municipal Administrative Council, Duisburg, 2017, accessed on March 8, 2018 . P. 13.
- Tonio Gas: Common good and individual freedom in national law and international law , Maximilian Verlag, 2017, ISBN 978-3-7869-0976-7 . P. 270 ff.
- special legal relationship. In: anwalt24.de. Retrieved March 8, 2018 .
- Bernhard Gayer and Stefan Reip: School and civil service law for teacher training and school practice in Baden-Württemberg . Europa-Lehrmittel Nourney, Vollmer, Haan-Gruiten 2012, ISBN 978-3-8085-7954-1 , p. 23 .
- BVerfGE 33, 1
- BVerfGE 108, 282 - Headscarf judgment
- BVerwGE 30, 29-34