Representative in administrative proceedings
The special representative in administrative proceedings is a special form of legal representation , limited to representation before an authority .
Legal bases
- In general administrative law : § 16 VwVfG or parallel provisions in the administrative procedural laws of the federal states
- In Schleswig-Holstein this is part of the State Administration Act, namely under Section 80.
- In the social law administrative procedure according to the Social Security Code : Section 15, Book 10 of the Social Code (SGB X)
- In the tax administrative procedure: § 81 Tax Code .
Appointment of a representative in administrative proceedings
A representative for the administrative procedure is ex officio (usually at the request of the authority concerned out) by the guardianship court to order :
- for a participant whose person is unknown (this case is comparable to the guardianship for unknown participants, § 1913 BGB);
- for an absent participant whose whereabouts are unknown or who is prevented from taking care of his affairs (this case is comparable to the absentee custodianship § 1911 BGB, which, however, is only limited to property management);
- for a participant who does not stay in Germany if he has not complied with the authority's request to appoint a representative within the deadline set;
- for a participant who, due to a mental illness or a physical, mental or emotional disability, is unable to take part in the administrative procedure (this case is comparable to the requirement for the appointment of a supervisor in § 1896 Paragraph 1 BGB), but is for no room for a special representative if there is a legal representation in another way, in addition, unlike the appointment of a supervisor, this regulation does not require consent with free will (see Section 1896, Paragraph 1a BGB for supervision);
- in the case of abandoned items to which the procedure relates, to safeguard the rights and obligations arising in relation to the item (not in the social administration procedure)
Procedure
The relevant authority has to contact the supervision court (in the case of underage persons concerned, the family court ), which appoints a corresponding representative. This has the advantage over the applicant authority, the position of a legal representative is therefore entitled to submit applications or withdraw access to the file to be asserted and appeal appeal.
The appointment is to be canceled by the court if the requirements for the order no longer apply.
Supplementary regulations for the representative in administrative proceedings can be found on point four in the custody law , on the other points in the custody law of the BGB. The difference is: the representative in administrative proceedings is entitled to reimbursement of expenses and remuneration from the authority on whose request he was appointed.
In practice, such a representative is rarely appointed. Most courts accept requests by authorities as an opportunity, a caregiver or nurse to order according to the Civil Code, then one of whose task circle and representation before the authorities. Because usually there is a need for representation for the person concerned not only vis-à-vis the authority, but also vis-à-vis other persons and agencies.
Parallel regulations in procedural law
In the field of rendering judgment similar treatment is the order of a process caregiver ( § 57 ZPO ), in the area of voluntary jurisdiction ordering a method caregiver ( § 158 act on the method family matters and in matters of voluntary jurisdiction (FamFG) in Kindschaftsrecht , Section 276 FamFG in the care procedure , Section 317 FamFG in the placement procedure and Section 419 FamFG in cases of deprivation of liberty ).
Jurisprudence
LSG North Rhine-Westphalia, judgment of October 16, 2017, L 20 SO 384/15 :
The need to request a suitable representative i. S. v. Section 15 (1) No. 4 SGB X in the event of a lack of capacity to act and process , if the supervisory court has rejected the appointment of a legal supervisor in accordance with Section 1896 of the German Civil Code.
