论文the publicprivate law divide in germany

1、Legal aspects of papersThe Public/Private Law divide in Germany Jens-Peter SchneiderEuropean Legal Studies Institute, Osnabrueck University- preliminary version! - A.Introduction2B.Historical development3I.Public law thinking within a German “common law” and the development of the territorial state3

2、II.The public/private law divide and the economic and political seperation of state and society in the 19th century4III.Publification of private law and individualisation of public law in the welfare state5C.Current Issues6I.Private and Public law: a shared mission but different structures of legiti

3、macy and accountability6II.Separation of judicial jurisdictions as the most obvious aspect of the public/private law divide81.The principal rules82.Jurisdiction of ordinary courts for state liability as a traditional exception93.Attempts of forum shopping in disputes on economic activities of public

4、 bodies and public enterprises10III.Integration of public and private law obligations of public bodies: Verwaltungsprivatrecht11IV.Coordination of multi-polar private interests by private and public law: differences and instrumental mix141.Case study I: environmental law152.Case study II: competitio

5、n and regulatory law15D.Conclusions and outlook17A. IntroductionGerman law clearly reflects a dogmatic divide into public and private law See Ehlers, Verwaltung und Verwaltungsrecht, in: Ehlers (ed), Allgemeines Verwaltungsrecht, 13. ed. 2006, p. 120. In constitutional law Art. 74 (1) no. 1 Basic La

6、w provides for a comprehensive legislative competence of the Federation in private law (“bürgerliches Recht”) whereas the competences for different branches of administrative law lay either with the Federation or the States (“Länder”). Art. 33 (4) Basic Law provides that the exercise of so

7、vereign authority on a regular basis shall be entrusted to members of the the public service who stand in a relationship of service and loyality defined by public law. According to Art. 34 liability shall rest with the state or relevant public body if a person, in the exercise of a public office ent

8、rusted to him, violates his official public law duties to a third party. Most important, basic rights apply differently to public bodies than to private persons or more precisely to private law disputes, a complex issue I will discuss more deeply at another part of my paper.Even more evidence for a

9、public/private law divide can be found in German parliamentary statutes: public law conflicts will regularly be decided by administrative courts (§ 40 VwGO) whereas private law disputes (bürgerlichrechtliche Streitigkeiten) fall into the jurisdiction of the ordinary courts (§ 13 GVG).

10、 The Administrative Procedure Acts apply only to administrative activities under public law (§ 1 (1) VwVfG). Therefore administrative acts which are the traditional and widely used instrument of German authorities can be adopted only in the area of public law although they may modify private la

11、w relations. Such administrative acts are regulated by special rules with regard to judicial control and they can be the basis for administrative execution measures against citizens not complying with commands contained in them. Special rules also exist for the execution of public law debts. Moreove

12、r, building permissions or authorizations under the German Clean Air Act (“Bundesimmissionsschutzgesetz”) must be issued to the applicant if they do not conflict with public law provisions. How did this seperation emerge historically? What have been the functional and substantive reasons for this de

13、velopment? Do they still exist or does the seperation no longer make real sense and is only a meaningless historically heritage. So what are the prospects for the future?B. Historical development Bullinger, Öffentliches Recht und Privatrecht, 1968; ders. FS-Rittner, 1991, 69 ff.; Grimm, Entsteh

14、ungs- und Wirkungsbedingungen des modernen Konstitutionalismus, in: Simon (ed), Akten des 26. Deutschen Rechtshistorikertages, 1987, 45-76; ders., Die verfassungsrechtlichen Grundlagen der Privatrechtsgesetzgebung, in: Coing (ed), Handbuch der Quellen und Literatur der neueren europäischen Priv

15、atrechtsgeschichte, 3. Bd., Das 19. Jh., Erster Teilband, München 1982, S. 17 ff.; ders., Öffentliches Recht, in: Görres-Gesellschaft (ed), Staatslexikon, 7. ed. Bd. 4, 1988, Sp. 120; Wyduckel, JuS 1984, 111 ff.In 20 minutes one has to simplify. Therefore I will present a very complex

16、 historical development in only three stages. Moreover I have to characterize these stages quite roughly omitting many details and even worse relativisations which would show that the development has been less straightforward than my presentation suggests. Legal historians could show that the curren

17、t seperation of public and private law is context related reflecting specific substantial concerns changing over time Bullinger, Öffentliches Recht und Privatrecht, 1968, 75#; Stolleis, 45 mwN. I. Public law thinking within a German “common law” and the development of the territorial state In m

18、edieval times as well as in the 14th and 15th century adoption# (Rezeption) of Roman law took place in Germany like in other continental jurisdictions. German lawyers cited eventually the famous phrase of Ulpian “publicum ius est quod ad statum rei Romanum spectat, privatum quod ad singulorum utilit

19、atem”. But like Romans at that time they did not classify ius publicum as a separate law with less or more dignity but merely as one part beside others of a unified law Stolleis, 47. The development of public law thinking accelerated during the 16th and 17th century in complex and interrelated proce

20、sses of increasing territorial state power and growing religious conflicts. Both processes caused constitutional disputes within the Holy Roman Empire of the German Nation and therefore public law issues attracted an increasing interest of academic lawyers. Noteworthy, that protestant academics have

21、 been dominant in these discussions at least in the academic world advocating the supremacy of recent “German” constitutional statutes over Roman law principles formerly used by catholics and other supporters of the emporer. As a result first comprehensive publications on public law were written and

22、 specific lectures on public law became a standard subject in curricula for legal education at leading German universities Stolleis, 49-50. But still public and private law had not been regarded as separated areas of law. Instead the absolute souvereign powers of the early modern state included subj

23、ects of private law in the same way as public law issues Stolleis, 53-54. Therefore the classification as public law was more an analytical tool of academics than an attribution with substantial legal or political relevance.II. The public/private law divide and the economic and political seperation

24、of state and society in the 19th centuryUnderstanding of public and private law as seperated types of law coincided with the economic and political differentiation between state and society starting in Germany around 1750 Stolleis, 55. With no successful revolution German territories remained politi

25、cally more or less absolutist states. Non-aristocrats therefore advocated a discrete private law protecting a kind of statefree realm. Further, modern capitalists as well as governments saw and used private and public law as functionally differentiated instruments to liberate economic dynamics from

26、restrictions under the old feudal economic regime imposed by trade guilds and a mercantilist “Policeystaat” Bullinger, Ref-3, p. 241-244. Public law with its souvereign powers without only very limited judicial control was used to overcome old monopolies and to introduce freedom of trade and busines

27、s. Private law had the function to establish a legal infrastructure enabling autonomous and equal actors to negotiate transactions and protecting private investments by providing what institutional economists would call property rights with clear, although limited risk allocations. Of course this is

28、 a very rough characterisation and in reality many relativizations did exist. Nethertheless this ideal had important impacts on the legal development in the 19th century.III. Publification of private law and individualisation of public law in the welfare stateSince the late 19th century in Germany l

29、ike in other western states the so called welfare state emerged. This type of state changed the characteristics of public as well as of private law significantly. Market failures especially with regard to social security and environmental protection were recognized. State interventions into the mark

30、et did take place regularly with apexes in the war economies during World War I and the Nazi dictatorship Stolleis, 58-59. Private law has been socialized by introducing new safeguards for underprivileged persons against private market power. These safeguards were either integrated by specific provi

31、sions into the general private law or emerged as new fields of special private law like labour or consumer protection law. Public law developed from an autoritarian instrument of market liberalisation to a legal order protecting vested subjective rights of individuals against state interventions Bul

32、linger, 245-248. Private and public law became less destinct or even inter-twinned thereby also reflecting the growing integration of state and society in the process of democratisation of German politics during the Weimar republic and more successful since the foundation of the Federal Republic of

33、Germany Stolleis, 58-59. C. Current Issues Stelkens, Verwaltungsprivatrecht, 2005; Eichenhofer (ed), Soziale Sicherheit durch öffentliches und Privatrecht, 2004; Ruffert, Vorrang der Verfassung und Eigenständigkeit des Privatrechts, 2001; D. Schmidt, Die Unterscheidung von privatem und 

34、46;ffentlichem Recht, 1985As we will have the opportunity to hear two other German papers on Public/Private-Partnerships and other means of cooperative delivering of public services I will not touch on those important issues. Instead I will give an overview about some topics ussually regarded as typ

35、ical elements of the public/private law divide in Germany as well as about selected issues which show the sometimes opportunistic use of public or private law instruments by the modern legislator. I. Private and Public law: a shared mission but different structures of legitimacy and accountabilityTh

36、e historical overview has ended with the observation that the remarkable separation between private and public law in Germany during the 19th century has diminished with the evolution of democracy and the modern welfare state. Nethertheless, most German scholars still see both types of law as distin

37、ct although ideas of a reunified “common law” have been articulated from time to time See Bullinger 1968. However the distinction can no longer be analysed as an antinomy. Instead, both areas of law share the same mission to promote social order through law by providing legal solutions for social pr

38、oblems Schmidt-Aßmann, 13, Hoffmann-Riem, 265. But remarkable differentiations still remain with regard to certain legal aspects. Probably most important, the starting points for public law on the one hand side and private law on the other differ reflecting the still relevant differentiation be

39、tween state and society under German constitutional law . Whereas private persons have the freedom to do anything as long as an action is not prohibited (Privatautonomie) the state and his authorities need a legally defined competence for any substantial measure (Kompetenzgebundenheit). Therefore pr

40、ivate law regularly only marks boundaries constituing a framework for private activities and a mainly optional legal infrastructure which private parties can rely on or can modify if they like to do so. In contrast, public law generally is strictly binding and in line with the rule-based bureaucrati

41、c model of Max Weber is been characterized by the so called provision of legality (Gesetzesvorbehalt) For a traditional perspective: Hartmut Maurer, Allgemeines Verwaltungsrecht, 15th ed. (2004), pp. 116-130; for a reformulation with regard to recent developments like economic regulation and risk re

42、gulation: Wolfgang Hoffmann-Riem, Gesetz und Gesetzesvorbehalt im Umbruch, Archiv des öffentlichen Rechts (AöR) 130 (2005), p. 5-70 and the guarantee of judicial remedy (Rechtsschutzgarantie) Article 19 IV of the German Constitution (Grundgesetz). See Helmuth Schulze-Fielitz, in: Dreier (e

43、d.) Grundgesetz, Art. 19 IV. For private law disputes only a less demanding principle of judicial protection applies: BVerfG (zit. in der Unterschwellentscheidung); critical Andreas Voßkuhle, #. The constitutional principle behind these doctrines is the need of democratic legitimation for relev

44、ant acts of state power (Staatsgewalt) See Art. 20 (2) 1 Basic Law: All state authority is derived from the people. Parliamentary statutes are an important although not exclusive substantial component determining the level of democratic legitimation. Both areas of law have taken part in the constitu

45、tionalisation of the German legal order especially after WW II but to a different degree. Therefore our basic rights apply to public as well as to private law disputes. But, whereas the state is directly bounded by those constitutional freedoms those freedoms have only indirect and restricted horizo

46、ntal effects among private parties. The constitutional reasoning behind this theory of indirect horizontal effects of basic rights is complex and not undisputed See Matthias Ruffert, Vorrang der Verfassung und Eigenständigkeit des Privatrechts, #. The starting point of the jurisprudence of the

47、Federal Constitutional Court is that basic rights constitute an objective normative order. This means firstly that parliament is bound by basic rights also in the area of enacting private law statutes. Secondly, state courts must consider basic rights when they apply private law blanket clauses like

48、 equity and good faith. The court often uses the phrase that private law statutes have to be interpreted in the light of basic rights. But, as restrictions of basic rights can be justified as long as they are proportionate the differing degree of obligation for public bodies compared to private part

49、ies can und must be taken into account by the competent courts also. The exact level of obligation depends on the individual circumstances thereby causing a highly disputed level of legal uncertainty For an especially interesting reformulation of the problem with the aim to increase legal certainty

50、see Matthias Ruffert, Vorrang der Verfassung und Eigenständigkeit des Privatrechts, #, with a systematic differentiation in line with different functional dimensions of basic rights like prohibitions against unjustified state interventions, as rights to state protection and as institutional gua

51、rantees. A lot more legal aspects are evidence of the different structures of private and public law, but can not be analysed in this paper Schmidt-Aßmann, #. As a result both parts of law are characterized by differing potentials and strengths as steering mechanisms to solve social problems. I

52、 will come back to this. But before I will shortly touch upon that legal aspect which most lawyers affiliate with the public/private law divide: the differentiation of our court system into ordinary courts having jurisdiction in private law disputes and administrative law courts.II. Separation of ju

53、dicial jurisdictions as the most obvious aspect of the public/private law divide1. The principal rulesGermany is characterized by a very differentiated court system with ordinary courts dealing with private law disputes and criminal matters, administrative courts, tax law courts, social courts and l

54、abor courts. As noted already this seperation of private law and public law courts is fundamental and the most prominent aspect of the German public/private law divide at least for our law students. This seperation necessitates to classify disputes as private or public. German scholars and courts in

55、vented since the 19th century tens of theories and tests for this classification but non of them is without flaws. Fortunately, most critical cases have been solved over time See Ehlers, #. And for the rest and new situations the courts use those theories rather opportunistic also to help plaintiffs

56、 when higher courts accept problematic jurisdictional classifications by lower courts Stolleis, S. 44. A recent legitimization of this relaxed approach is § 17 (2) GVG providing that a court being competent under one legal aspect shall decide a legal dispute with regard to all relevant legal as

57、pects within or outside his jurisdiction. 2. Jurisdiction of ordinary courts for state liability as a traditional exceptionMoreover the legislator can allocate certain types of public law disputes to the ordinary courts. Traditionally this has been the case in the important field of state liability.

58、 During the 19th century no state liability existed. According to the so called “Mandatstheorie” public officials had jurisdiction only for lawful actions. Therefore any unlawful act was interpreted as a private misconduct of the person entrusted with a public office. Consequently only a personal li

59、ability of the acting officer existed Maurer § 25 . Therefore, disputes concerning an officer´s liability had been classified as private law disputes falling into the jurisdiction of the ordinary courts. Not until the introducing of the German Civil Code in 1900 which followed this private law construction in § 839 BGB more and more German States established a transition of this personal liabilty of their ci