Stručni rad
State control over the local units in Bavaria - selfgovernment, democracy and the rule of law - symbiosis or controversy?
Philipp C. Stiel
; Ministarstvo gospodarstva, transporta i tehnologije, Bavarska, Njemačka
Sažetak
The principles of state oversight over the communal administrative acts might be summarized the following way:
The state might allways control a legality of an administrative act of a commune as an offcial duty (ex offo) or on a demand of citizens within the procedure of appeal. Difference exists to the rationality of an administrative act of a commune: here is a gurantee of selfgovernment of communes expressed in aparticular way. Hereby the state must restrict its control to the pure legality of the communal administration. There is no control of a rationality of a communal act. The right to selfgovernment spreads also to the area of devolved tasks. Here the state might also only in a restricted way control a rationality of communal acts by an expert oversight. Complete control of an administrative act of a commune is carried trough only in the procedure of appeal, thus on a demand of a citizen who claims that his individual public rights have been violated.
This brief scheme of the system of control over the Bavarian communes explains the way the German and the Bavarian constitution maker s have tried to conciliate the properties of the rule of law, democracy and the local government into a symbiosis. By that we might conclude the following: The principle of democracy does not go only for selfgovernment of communes. It is true that the communal organs bear a direct democratie legitimacy while the state executive power might claim only an indirect democratie legitimacy from the minister president who is appointed by the Parliament. But that indirect democratie legitimacy is not “less worth” than the direct one of the communal organs, in particular not in a sense that such a direct legitimacy would prevail over the principles of the rule of law, and even more so since the norms of the democratie state have been created in a democratie way.
After a closer exemination a controversy between the properties of the rule of lasw and the direct democracy (or selfgovernment) is revealed, therefore there is a conflict between the state and the local regulations. As long as the core of the local regulations, namely the very selfgovernment of communes remains untouched, the primacy must belong to the state regulations. By this exclusively the concept of an institutional guarantee of the right on selfgovernment “under the law” is being expressed.
Ključne riječi
locai self-government; state administration
Hrčak ID:
197718
URI
Datum izdavanja:
8.6.1999.
Posjeta: 712 *