Law of Germany - Public Law

Public Law

Public law (Öffentliches Recht) rules the relations between a citizen or private person and an official entity or between two official entities. E.g., a law which determines taxes is always part of the public law, just like the relations between a public authority of the Federation (Bund) and a public authority of a state (Land).

Public law was formerly based on the so-called "Über-Unterordnungs-Verhältnis" ("superiority inferiority relationship"). That means that a public authority may define what is to be done, without the consent of the citizen. (E.g., if the authority orders a citizen to pay taxes, the citizen has to pay, even without an agreement.) In return, the authority has to abide by the law and may only order, if empowered by a law.

The newer and now most acknowledged theory to determine, whether a regulation is public or civil law, is the "modifizierte Subjektstheorie" (modified theory of subjects). A codified regulation is public law, if at least one of the subjects is part of the state ("Der Staat" as is meant legislative, executive and judiciary) or is legally empowered to act on behalf of any part of the state. This Theory was necessary, because the Theory of "Über-Unterordnungs-Verhältnis" failed in certain situations, e.g.: A parent is legally superior to a minor. The minor cannot sign any contract without a parents consent. Following the old theory, this would be a case of "Überordnung", which would qualify these regulations as public law. The newer theory qualifies these regulations as private law, because the parents are superior, but they are not part of the state nor acting on behalf of any.

A subject in the sense of the Modifizierte Subjektstheorie is the addressee, that might be entitled or obligated to do or to forbear something; e.g.: Tax Laws entitle the state to collect taxes, criminal law entitles the state to imprison criminals and also obligates the state to resolve crimes.