Administrative assistant
An administrative assistant is a private natural or legal person who performs auxiliary activities on behalf of and according to the instructions of the authority entrusting them.
The prerequisite is that the public sector has such extensive influence on the execution of the work that the private sector acts as a mere “tool” or “vicarious agent” of the sovereign. This distinguishes the administrative assistant from the borrowed , who is given the authority to independently perform public tasks .
If private natural persons act as administrative assistants in the execution of sovereign tasks , they are civil servants in the sense of liability law . They act in the exercise of a public office entrusted to them. The exclusion of legal persons is explained by the fact that only a natural person can hold an office.
The sovereign must accept the act of the administrative assistant as one of his own. His personal liability is therefore ruled out in accordance with Art. 34 sentence 1 GG.
If the administrative assistant acts on the basis of a voluntary contractual agreement, this can be of a public or private law nature and is sometimes uniformly referred to as an administrative contract .
Regardless of the qualification as an administrative assistant, according to current case law, the towing company commissioned by the police to remove a car from the stopping ban is at least regarded as an official in the sense of liability law. Another example is the student guide who helps students on the way to school across the street on behalf of the school administration or a structural engineering office that is commissioned by a building permit authority to check the stability of a planned building project, as well as a private person who is called by the police to regulate the short-term Traffic is used, for example in the event of an accident.
literature
- The democratic principle in the Basic Law. The fulfillment of administrative tasks by private individuals. Reports and discussions at the conference of the Association of German Constitutional Law Teachers in Speyer on October 8th and 9th, 1970. With contributions by Werner von Simson, Martin Kriele , Fritz Ossenbühl , Hans-Ullrich Gallwas , 1971. ISBN 3-11-003684-3
- Dirk Ehlers : The handling of community tasks by administrative assistants . Local science research and local practice, Vol. 6, Carl Heymanns Verlag, Cologne 1997, ISBN 978-3-452-23843-6 .
- Marie Ackermann: Administrative assistance between tool theory and functional privatization. Berlin 2016. ISBN 978-3-428-14875-2 . At the same time Hamburg, Univ.-Diss. 2015
Individual evidence
- ↑ BGH, judgment of February 18, 2014 - VI ZR 383/12; OLG Hamm, VersR 1992, 1227 mwN
- ^ Verwaltungshelfer Rechtslexikon.de, accessed on October 30, 2019
- ↑ Markus Heintzen: Involvement of private individuals in the performance of public tasks and state responsibility 2002, p. 254
- ↑ BGH, judgment of June 6, 2019 - III ZR 124/18
- ↑ Ottheinz Kääb: BGH: Employees of a private company who set up traffic signs act as administrative helpers Website of Beck-Verlag , July 29, 2019
- ↑ Michael Luber: Recourse against entrusted persons and administrative assistants August 2019
- ↑ cf. Martin Burgi : Functional privatization and administrative assistance. State task dogmatics - phenomenology - constitutional law. Tübingen 1999, p. 164 ff. Review by Gerrit Manssen , JZ 1999, p. 1048
- ↑ Burmeister / Krebs / Autexier / Hengstschläger / Schweizer: Contracts and agreements between administration and private individuals, VVDStRL 52 (1993), p. 250 ff.
- ↑ BGHZ 121, 161; OLG Hamm, NJW 2001, 376; Detterbeck, JuS 2000, 574 ff.
- ↑ OLG Cologne, NJW 1968, 655
- ↑ BVerwGE 57, pp. 55/58
