Subordination theory
The subordination theory or theory of subjection is a theory for the delimitation of public and private law .
A legal relationship under public law is therefore always present when there is a superior / subordinate relationship . A private law relationship, on the other hand, is given when the parties involved are on an equal footing.
In spite of extensive criticism in jurisprudence , the subordination theory is still used in legal practice. It can be traced back to Otto Mayer , who introduced the administrative act into German law based on French law . In doing so, he defined the administrative act as an "official statement [...]" and thus indirectly defined the administrative act as a fundamental superordinate / subordinate relationship.
The criticism of modern constitutional law has different starting points:
- In the opinion of its critics, it is based on an authoritarian state concept that cannot be reconciled with today's ideas of the state .
- It is neither able to declare the area of organizational law as public law, nor to separate private law relationships, in which there is a superior / subordinate relationship, from public law.
- Forms of action in public administration are too complex to be explained with the simple grid of superiority and subordination.
See also
literature
- Jörn Ipsen : General administrative law . Carl Heymanns Verlag, Cologne ea 2000, Rn. 21 ff.
- Friedhelm Hufen : Administrative procedural law . 4th edition, Verlag CH Beck, Munich 2000, p. 3 ff.
