Abstract “Day-Care for every child?” Since 1 August 2013, section 24 (2) Code of Social Law VIII (Sozialgesetzbuch VIII) grants every child at the age of one and two years a legal entitlement to a place in day-care. This rather laconic piece of legislation leaves many questions unanswered, which have been approached by both jurisprudence and legal practice in the last years. This article highlights the constitutional background of institutional childcare and shows the arising conflict between the basic rights of the child and its parents on the one hand and the burden on municipal budgets on the other hand which is underlying the relevant statutes of the Code of Social Law VIII. Therefore, especially article 6 (1) of the Basic Law (Grundgesetz) is arguing for enabling childcare in the form respectively requested by the parents. On the other hand, potential risks to the constitutional principle of fiscal autonomy of municipalities (kommunale Finanzhoheit) need to be taken into account. Some of the German Laender refused to make compensational payments to the municipalities despite the extension of their tasks caused by section 24 (2) Code of Social Law VIII. This comes into conflict with the principle of related actions (Konnexitätsprinzip), as enshrined in the constitutions of the Laender. In the light of the above, the article then deals with the sub-constitutional entitlements in and surrounding section 24 (2) of the Code of Social Law VIII. Apart from the rights established by section 24 (2)Code of Social Law VIII, the entitlement to cost coverage (section 90 (3) Code of Social Law VIII), the right to repayment of expenses (section 36a (3) Code of Social Law VIII) as well as claims arising from the liability of public authorities (section 839 German Civil Code, article 34 Basic Law) are covered, discussed in the light of their constitutional background and integrated into a coherent interpretative framework.
{"title":"Ein Krippenplatz für jedes Kind?","authors":"Sonja Heitzer, D. Wolff","doi":"10.3790/VERW.51.4.523","DOIUrl":"https://doi.org/10.3790/VERW.51.4.523","url":null,"abstract":"Abstract “Day-Care for every child?” Since 1 August 2013, section 24 (2) Code of Social Law VIII (Sozialgesetzbuch VIII) grants every child at the age of one and two years a legal entitlement to a place in day-care. This rather laconic piece of legislation leaves many questions unanswered, which have been approached by both jurisprudence and legal practice in the last years. This article highlights the constitutional background of institutional childcare and shows the arising conflict between the basic rights of the child and its parents on the one hand and the burden on municipal budgets on the other hand which is underlying the relevant statutes of the Code of Social Law VIII. Therefore, especially article 6 (1) of the Basic Law (Grundgesetz) is arguing for enabling childcare in the form respectively requested by the parents. On the other hand, potential risks to the constitutional principle of fiscal autonomy of municipalities (kommunale Finanzhoheit) need to be taken into account. Some of the German Laender refused to make compensational payments to the municipalities despite the extension of their tasks caused by section 24 (2) Code of Social Law VIII. This comes into conflict with the principle of related actions (Konnexitätsprinzip), as enshrined in the constitutions of the Laender. In the light of the above, the article then deals with the sub-constitutional entitlements in and surrounding section 24 (2) of the Code of Social Law VIII. Apart from the rights established by section 24 (2)Code of Social Law VIII, the entitlement to cost coverage (section 90 (3) Code of Social Law VIII), the right to repayment of expenses (section 36a (3) Code of Social Law VIII) as well as claims arising from the liability of public authorities (section 839 German Civil Code, article 34 Basic Law) are covered, discussed in the light of their constitutional background and integrated into a coherent interpretative framework.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42392419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The regime concerning administrative contract law under sec. 54 et seq. of the Administrative Procedure Code (VwVfG) appears to be in need of reform. Amendment of the code remains on the political agenda, though other projects such as Europeanisation, democratisation and digitisation currently seem to enjoy precedence. In recent times, progressive development of administrative contract law has shifted to specific legal areas, in particular to construction and planning law, environmental law, elements of public commercial law, tax law and social legislation. How administrative law may be distinguished as a specific discipline is a question of principle, effectively representing a new chapter in the dispute concerning methods that occurred in the 19th century, a question, moreover, that extends far beyond the law concerning administrative contracts. In order to reform the current legal provisions covering administrative contracts in the Administrative Procedure Code, a three-part analysis is proposed: First of all, the specific interests of both the public authority and the citizen must be taken into consideration. Subsequently, the current legal regulation of administrative contracts must be analysed in terms of both its fundamental ideas, as well as its central provisions. Finally, it is necessary to determine whether the teleology of the public law contract can be applied to this area, or whether specific, factual connections or constellations of interests must be taken into account, entailing that the use of a model based on general standards seems inappropriate. The result of the foregoing is that a critical analysis of the evolution of administrative contract law is proposed.
{"title":"Der Verwaltungsvertrag: Bestandsaufnahme und Reformbedarf","authors":"A. Leisner-Egensperger","doi":"10.3790/verw.51.4.467","DOIUrl":"https://doi.org/10.3790/verw.51.4.467","url":null,"abstract":"Abstract The regime concerning administrative contract law under sec. 54 et seq. of the Administrative Procedure Code (VwVfG) appears to be in need of reform. Amendment of the code remains on the political agenda, though other projects such as Europeanisation, democratisation and digitisation currently seem to enjoy precedence. In recent times, progressive development of administrative contract law has shifted to specific legal areas, in particular to construction and planning law, environmental law, elements of public commercial law, tax law and social legislation. How administrative law may be distinguished as a specific discipline is a question of principle, effectively representing a new chapter in the dispute concerning methods that occurred in the 19th century, a question, moreover, that extends far beyond the law concerning administrative contracts. In order to reform the current legal provisions covering administrative contracts in the Administrative Procedure Code, a three-part analysis is proposed: First of all, the specific interests of both the public authority and the citizen must be taken into consideration. Subsequently, the current legal regulation of administrative contracts must be analysed in terms of both its fundamental ideas, as well as its central provisions. Finally, it is necessary to determine whether the teleology of the public law contract can be applied to this area, or whether specific, factual connections or constellations of interests must be taken into account, entailing that the use of a model based on general standards seems inappropriate. The result of the foregoing is that a critical analysis of the evolution of administrative contract law is proposed.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47469074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What are the opportunities and risks of using external expertise in the administrative procedures of the knowledge society? The constitution demands that the state acts according to rational standards. The administration may, therefore, not completely ‘outsource’ the process of gaining the necessary knowledge to private actors, but has to adopt this knowledge as its own – even where it relies on such external expertise. The considerable opportunities that external expertise offers have to be used in a structured and regulated way that contains their significant risks in a manner consistent with the constitutional responsibility for rational administrative action. This requires paying attention not only to the justifications of decisions but also to its production. It requires deepening our important knowledge about the boundaries of knowledge, about ignorance and uncertainty, as well. To face these challenges seems all the more indispensable in times when the idea of knowledge itself is under heavy attack by “post-truth” or “post-factual” political strategies.
{"title":"Chancen und Risiken externen Sachverstandes in den Verwaltungsverfahren der Wissensgesellschaft","authors":"Mathias Hong","doi":"10.3790/verw.51.3.367","DOIUrl":"https://doi.org/10.3790/verw.51.3.367","url":null,"abstract":"What are the opportunities and risks of using external expertise in the administrative procedures of the knowledge society? The constitution demands that the state acts according to rational standards. The administration may, therefore, not completely ‘outsource’ the process of gaining the necessary knowledge to private actors, but has to adopt this knowledge as its own – even where it relies on such external expertise. The considerable opportunities that external expertise offers have to be used in a structured and regulated way that contains their significant risks in a manner consistent with the constitutional responsibility for rational administrative action. This requires paying attention not only to the justifications of decisions but also to its production. It requires deepening our important knowledge about the boundaries of knowledge, about ignorance and uncertainty, as well. To face these challenges seems all the more indispensable in times when the idea of knowledge itself is under heavy attack by “post-truth” or “post-factual” political strategies.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42461703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Formen und Funktionen des exekutiven Geheimnisschutzes","authors":"Thomas Wischmeyer","doi":"10.3790/VERW.51.3.393","DOIUrl":"https://doi.org/10.3790/VERW.51.3.393","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47098001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Erkenntnisfunktionen und Richtigkeitsgewähr von Verwaltungsverfahren","authors":"P. Hilbert","doi":"10.3790/verw.51.3.313","DOIUrl":"https://doi.org/10.3790/verw.51.3.313","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42784306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Äußerung von Beamten im Konflikt mit Dienstpflichten","authors":"K. Herrmann","doi":"10.3790/verw.51.2.265","DOIUrl":"https://doi.org/10.3790/verw.51.2.265","url":null,"abstract":"","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":"51 1","pages":"265-300"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46075998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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