Jurisdiction

The jurisdiction or competence sets in public law which authority or which court is legally authorized and required in each individual case to hoheitlichem action. The factual and territorial jurisdiction is a formal condition of the lawfulness public administrative activity and for the activity of the courts. It is basically determined by the Constitution.

Germany

Constitutional Basis

From a constitutional point of view follows the jurisdiction of a public body for a division of powers, an element of the rule of law, on the other hand from the federal principle.

Separation of powers

The jurisdiction of state power is initially defined functionally: The legislation sets the law, public administration carries out the laws, and the case-law decides in case of dispute about the legal ( the importance of legal rules ) and creates at the same time provide a basis for the compulsory enforcement justice in individual cases. An institution is to act in this sense only in the context of the competences entrusted to it by the Constitution functional.

A special case is the extent that the regulation by the administration in the form of ordinances and statutes (so-called substantive or legal right ). It requires a formal legal authorization, which in turn must meet certain requirements (Article 80 of the Basic Law; Wesentlichkeitstheorie ). Furthermore, the case law also creates so-called judge-made law, which is able to develop a life of their own apart from the right positively asserted. In particular, in the constitutional jurisdiction, it may be an overlap with the competence of the legislature, which will be discussed under the topos of judicial self -restraint.

Federal principle

A further breakdown follows from the Federalism: The powers of the three public powers are distributed among the federal, state and local authorities. The legislative competence follows from Article 70 et seq GG. It is thus essentially in the countries; only the explicitly enumerated subject areas it is exclusively or concurrently to the Federal Government. In the field of public administration, the principle is that the laws are executed by the Länder (Art. 83 ff GG). Only in exceptional cases here, the federal acts. And in the case-law, first, the courts of each country appointed (Article 92 et seq GG).

Jurisdictional rules in detail

Public Administration

The competent authority in individual cases of public administration should be determined by the rest of the provisions of ordinary law. It depends on the administrative structure, in each of which a certain carrier for one field of matter and local jurisdiction. It is thus part of the right to organize. " Instantiell " - - usually in a three-tier administrative structure lower, upper and chief administrative authorities can be distinguished that regard. Also Entrusted may be responsible for completing a specific task and to the extent sovereign act.

For example, is determined in the police laws of the countries that the police and administrative law principle, the responsibility of the local planning authority is generally justified. It was built in the counties and cities. For certain local matters, however, the local planning authority matter and local jurisdiction, such as the regulation of traffic on local roads, the local road authority.

Another example is the responsibility of the professional association as the statutory accident insurance for accidents at work ( § 8 SGB VII ) in a particular branch of industry ( objectively; accordance with the Statute of the professional association ) and in a certain district (local, insofar as there is in the branch of industry accident insurance institutions responsible only for a specific local area) for certain insured (§ 2 et seq SGB VII).

More recently, the Federal Constitutional Court has in particular dealt with the jurisdictional rules in the law of January 2005 newly introduced basic security for job seekers ( " Hartz IV "). The territorial jurisdiction of the carrier of basic security for job seekers based on the habitual residence of the person in need ( § 36 SGB II). Administrative support is basically the Federal Employment Agency, exceptionally, an approved municipal entities in their place (so-called Optionskommune, § 6 SGB II). To fulfill their responsibilities, employment agencies and those municipalities that have not been approved itself as a carrier, working groups set up (so-called ARGE § 44b SGB II). The Federal Constitutional Court has this Orgsanisationsform declared incompatible in its judgment of 20 December 2007 with the Basic Law and given up to the legislature to provide by the end of 2010 a new regulation. The court has the provisions of Articles 83 et seq GG designed so that a so-called mixed management with the federal system and the rule of law were not compatible.

Court

The jurisdiction of the courts depends on the court constitutional law. Here, the second instance within a right of action on the one hand to the courts ( the Ordinary courts (civil and criminal ), the administrative jurisdiction of the special branches of the financial and social justice as well as the Voluntary Jurisdiction ), on the other hand, to distinguish ( in the ordinary courts about: Amtsgericht, District Court, Court of Appeal, Federal Court of Justice ).

The subject matter jurisdiction of the courts within the same legal remedies depends on the particular process orders ( Code of Civil Procedure, Code of Criminal Procedure, Administrative Procedure, Finanzgerichtsordnung, Social Court Act). In civil proceedings the Armed value of this is particularly significant because according to § 23 No. 1 GVG civil disputes with a value of more than 5000 euros are to be decided not by the district court, but the district court ( are apart from the affairs of any consideration of the amount in dispute catalog moderate the local courts assigned acc. § 23 No. 2 GVG ). In Criminal Procedure, the jurisdiction of the court determined by the expected penalty (§ 24 et seq GVG ).

The local jurisdiction follows from the respective national implementing legislation, in which judicial districts have been established, and from the venue.

Within a court determined the rest of the jurisdiction of a single judge or of a panel according to the schedule. It has the purpose of ensuring that no one is deprived of his lawful judge ( Article 101 of the Basic Law ). The allocation will be by the judges of the respective court decided (self administration of justice ).

If the action before the relevant court or not locally competent collected, a transfer is made to the competent court.

In the instances of the Federal Constitutional Court is not incorporated, because it is no so-called Super appeal instance. The Federal Constitutional Court shall serve only in the cases listed exhaustively in Article 93. In the process of the constitutional complaint, it only checks the violation of " specific constitutional law ."

Special rules

Eilkompetenz police

Special rules apply to emergencies, in which the principle competent authority or the competent court can not be reached or where they can not act fast enough to protect the rights of the person concerned. For example, the police enforcement in these cases Eilkompetenz compared with the general regulatory authority.

Standby duty of the District Court

In the event that no other court could provide the legal time more, the emergency service of the District Court for request of all jurisdictions in the country district court is also available on Sundays and public holidays as a limited emergency service ready ( § 22c GVG ).

International jurisdiction

In cases of transgression, the international jurisdiction under the relevant international and European treaties and regulations (Regulation (EC ) No 44 /2001 ( Brussels I Regulation ), European Convention on Jurisdiction and Enforcement Convention) done.