The state liability law is in Germany the range of the adhesion for national injustice. State adhesion should be above all the responsibility for sovereign acting, because also legal acting of the administration can release remunerations. Beyond that falls under the state adhesion in addition, the adhesion of the state with (fiscal) acting under private law.

Systematics of the state liability law are to verworren today. The West German legislator presented a state adhesion law, which stepped on 1 January 1982 into force at the beginning of the 1980er years; this was already explained however by the Federal Constitutional Court on 19 October 1982 for lack of legislative competence of the federation for unconstitutional (BVerfGE 61, 149). In the meantime the Basic Law was going by amended that an authority allocation raises no more condition conflict. It did not give concrete efforts toward a re-organization of the state liability law in the last years however. Until 1990 applied in the GDR the state adhesion law of 12. May 1969, which was transferred in parts of some northeastGerman Lands of the Federal Republic such as Mecklenburg-Western Pomerania or Brandenburg as federal state law.

Systematics are not hardly to be represented therefore, still exist clear structures. Therefore can the organization state liability law earliest by views on the legal consequence side succeed. Also the allocation to a certain jurisdiction is not possible. The majority of the state liability claims only few become before the civil courts, as decided the requirement for consequence removal, before the Administrative Courts.

Requirements with payment of damages

Here requirements are possible from public absolute liability, thus be to blame for-independent liability claims; Obligation injuries in the context of administrative obligations (public contract), which justify a positive demand injury or one c.i.c out "§ 280 exp. 1 BGB similarly and/or "§ 311 exp. 2, 3 BGB similar; Requirements for official liability, those the deliktische behavior of an office-holder on the state after "§ 839 exp. 1 BGB in connection with kind 34 GG lead up and finally for the northeast Lands of the Federal Republic the requirements from the state adhesion laws issued there.

Requirements with remuneration

The requirement on remuneration is to be differentiated from the claim for damages to that extent, also a financial compensation of occurred damage, a reconciliation is made is however only made, which stays behind the payment of damages regularly. Here the expropriation, the requirement on remuneration from the balancerequiring contents regulation of the property to kind 14 exp. 1 P. 2 GG, the expropriation-same interference when illegal impairments the property, parallel to it the expropriating interference as remuneration for legal sovereign acting and the general sacrifice claim are possible. Since the so-called wet from gravel decision of the BVerfG latter requirements no more on kind 14 GG, but concerning customary law by "§"§ 74, are supported 75 of the introduction to the Prussian general Landrecht (so-called sacrifice customary law).

Requirements on consequence removal, omission and refunding

If it does not depend the damage on the compensation of its damage, then there are the following possibilities: The public requirement for consequence removal is supported by restitution in kind, which is to re-establish the status quo. The public requirement for defense is to repel threatening illegal, sovereign measures. If the state acquired argumentless pecuniary benefits, then these are to be returned with the public claim to reimbursement. The public management without order, which is particularly problematic in the range of the police right, offers likewise an expenditure claim to reimbursement.

Requirements with (fiscal) acting under private law

By the administration with acting under private law if a damage is caused third party, it is to be differentiated first whether it concerns around a damage in connection with contractual relations or a bad action of a coworker of the administration. On the other hand it is to be differentiated whether an organ of the administration or only one assistant acted. With the injury of contractual obligations by the state are applicable as requirement bases: "§"§ 280 exp. 1, 241 exp. 2, 31, 89 BGB (organ adhesion) and/or "§"§ 280 exp. 1, 241 exp. 2, 278 BGB (assistant adhesion). In the case of a bad action are possible as requirement bases: "§"§ 823, 31, 89 BGB (organ adhesion) and/or "§ 831 exp. 1 BGB (adhesion for the performing assistant - assistant adhesion). The demarcation between organ and assistant are sometimes doubtful. The organ term is to be laid out anyhow far, so that legal representatives do not only fall under it, but also all, which certain tasks are transferred for solely responsible completion and which represent thereby the legal entity of the public right in this way (so-called representative adhesion). As examples can be called: Chefarzt, home for the elderly leader, director of savings bank, department manager, section chief. In principle applies: who organ is, not at the same time assistant can be and in reverse.

Recourse against the coworker

As far as the carrier body is responsible for the damage opposite third (article 34 Basic Law), can you against the official, who caused the damage, internally recourse to take. This is attached however after the respective official law to the fact that the official caused the damage deliberately or roughly negligently.

Literature to the state liability law

• Fritz: State liability law. Beck publishing house, 5. Edition, Munich 1998. ISBN 3-406-41809-0

• Detterbeck, Steffen; Wind refuge, Kay; Sproll, Hans Dieter: State liability law. Beck publishing house, Munich 2000. ISBN 3-406-45837-8

• Baldus, Manfred; Grzeszick, Bernd; Wienhues, Sigrid: State liability law - the right of the public indemnifications. Mueller publishing house, Heidelberg, 2005. ISBN 3-8114-1836-X

Articles in category "State liability law"

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