A public dispute is present, if the complaint desiring presents itself as consequence of circumstances, which are to be judged by public right. Desiring the plaintiff is thus public kind only if it can be deduced from legislation of the public right. First connecting factor for this allocation is the statement on a case of the plaintiff. That the true right nature of desiring is relevant, not the subjective evaluation of the plaintiff is to be considered. For being present a public dispute it is insignificant, if standards, which are assigned for example to the civil law, refer only to preliminary questions. A demarcation in such cases can place itself as particularly difficult out.

In addition a case of example: An foreigner is married with a German citizen and gets during the marriage a child. The marriage becomes soon thereafter divorced. Later the father successfully contests the paternity according to civil regulations of the BGB. Thereupon the foreigner is to be expelled. The foreigner authority argues, which nut/mother has its lodging right lost, since the contestation of the father led to the fact that the child lost retroactively the German nationality. The foreigner complains before the Administrative Court and makes valid that it possesses further a lodging right, since its child has the German nationality and this can be void not retroactively. In this case the Klagebehren is the contestation of the classification order. The classification is regulated in the foreigner right and this is the public right to be assigned. Therefore a public dispute is present. Into as far the civil contestation of the paternity effective and which consequences result from it, is against it only a preliminary question was and does not prove the dispute straight not as a under private law.

If doubts about the fact exist whether upon the contention is based the right sets the public right or is to be assigned to private law, is to be made a demarcation by means of the three demarcation theories (interest theory, Subordinationstheorie, special right theory). It is marked that these theories are not suitable for the demarcation of public and civil dispute, but they are only consulted if must be clarified whether a concrete right set, to which the Streitgegensatnd refers, to which public or area under private law is to be assigned. The Administrative Court is responsible for the decision of public disputes of not-constitutional kind ("§ 40 VwGO), as far as this due to law are not assigned to other courts. The social court decides on public disputes, which are specified enumerativ in "§ 51 I SGG.

Articles in category "Public dispute"

We found here 2 articles.