Concept and General Definition of Administration
The term “administration” refers, in legal terms, to the entirety of measures, activities, and structures aimed at the management, organization, and governance of public or private entities as well as their assets or rights. Administration encompasses both actions within the framework of public administration and tasks within companies, associations, foundations, estates, and fiduciary relationships. Legal administration is closely linked to concepts such as management, asset administration, and corporate bodies, and is subject to nuanced regulation in numerous national and international legal provisions.
Administration in Public Law
Administrative Activity of Public Authorities
In public law, administration predominantly refers to the activities of public authorities and institutions, which are subject to the normative control, regulation, and order of the community. Administrative acts, executive measures, the implementation of laws, as well as the creation and handling of public rights and obligations, fall under the concept of administration. This particularly includes:
- Fulfillment of public duties by authorities and corporations under public law
- Issuance and enforcement of administrative acts and regulations
- Organization of administrative procedures and judicial review of administrative activity
- Responsibility of officials for objectivity, legality, and economic efficiency
Legal Basis of Public Administration
Public administration finds its foundation in constitutional law, administrative law, and further specific laws, such as the Administrative Procedure Act (VwVfG), the Administrative Service of Documents Act (VwZG), or public law special statutes. The principle of legality of the administration (“primacy and reservation of the law”) is the central legal standard for all administrative actions.
Liability and Legal Protection
Public administration is subject to specific liability rules. Official liability, state liability, and the right to effective legal protection before administrative courts are key legal institutions that serve as a balance between administrative power and individual rights.
Administration in Private Law
Corporate Administration
In the context of corporate law, administration describes the proper management, organization, and governance of a company. This includes:
- Appointment and duties of managing directors, boards, or other bodies
- Management of company assets
- Compliance with statutory and constitutional requirements
- Bookkeeping and accounting obligations
Administration is carried out in accordance with commercial and corporate law provisions, for example under the Commercial Code (HGB) or the Stock Corporation Act (AktG).
Administration in Estates, Foundations, and Trusts
The management, safeguarding, and settlement of estates, foundation assets, or trust property are also referred to as administration. This particularly includes:
- Estate administration and execution of wills (§§ 1975 ff. BGB)
- Administration of foundations by the board of the foundation in accordance with the applicable foundation laws
- Trust administration according to civil law and special statutory provisions
The primary focus here is the duty of diligent and proper management of third-party assets, including comprehensive disclosure, accountability, and liability regulations.
Administration in Insolvency and Receivership
In special legal situations, such as insolvency or court-ordered receivership, the insolvency administrator or receiver undertakes administrative duties with respect to the affected assets. These activities are subject to strict statutory requirements and judicial oversight.
Legal Foundations of Insolvency and Receivership
- Insolvency Code (InsO), in particular §§ 56 ff. InsO
- Receivership law according to § 152 ff. of the Forced Sale Act (ZVG)
International Aspects of Administration
In a cross-border context, administration may also involve the management of foreign assets, international legal succession, or trusts under international law. The relevant regulations arise from private international law, European regulations, as well as bilateral or multilateral legal assistance provisions.
Summary and Significance in Legal Science
Administration is a central legal concept that encompasses a wide variety of forms of management, organization, and governance. Its legal design depends on the particular context (public or private law) and specific statutory provisions. The concept of administration is closely associated with principles such as legality, efficiency, fiduciary duty, and accountability. These principles form the basis for the lawful, expedient, and verifiable management of rights, obligations, and assets in various social sectors.
Frequently Asked Questions
To what extent are administrative actions bound by legal requirements?
Administrative actions in German law are subject to the so-called principle of the legality of administration. This means that any administrative action—i.e., actions, measures, or decisions by authorities in fulfillment of public duties—must always be based on a legal foundation and be in compliance with the applicable legal norms, particularly constitutional requirements. In this context, a distinction is made between the primacy and the reservation of the law. The primacy of the law means that the administration may not undertake any measures that violate existing law, while the reservation of the law requires that certain administrative actions may only be taken on the basis of an express statutory authorization. This reservation is particularly strict regarding interference with fundamental rights. The Administrative Procedure Act (VwVfG), special statutes, and the Basic Law (GG) provide the principal legal framework. Legal remedies such as objections and court actions are available to challenge administrative acts, allowing affected parties to successfully contest unlawful administrative measures.
What rights do affected citizens have regarding administrative acts?
Affected individuals have various rights within the administrative process that secure their legal position vis-à-vis governmental actions. They particularly have participatory rights, such as the right to a hearing (§ 28 VwVfG) before a burdensome administrative act is issued. Once the administrative act is delivered, they have the right to inspect files (§ 29 VwVfG), unless overriding interests of third parties or statutory exclusion clauses apply. Legal remedies such as objections and court actions may also be pursued against an administrative act, observing the respective deadlines and formal requirements. Furthermore, there is the right to a statement of reasons for the administrative act (§ 39 VwVfG), so that the decisive reasons must be made transparent. This serves to ensure effective legal protection and the oversight of state actions.
What data protection obligations exist in the management of personal data?
Administration is bound by data protection law, especially the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG), when processing personal data. Only data necessary for the respective administrative purpose may be collected, processed, and used (purpose limitation principle). In addition, technical and organizational measures must be taken to ensure data security. Data subjects have comprehensive rights, such as the right to information, rectification, erasure, or restriction of processing of their data. Administrative bodies are required to keep records of processing activities and—if necessary—to carry out data protection impact assessments. Data protection officers must be appointed in many authorities to ensure compliance with regulations. Any violation of data protection regulations may lead to supervisory actions and sanctions.
When is an administrative act void and what are the legal consequences?
An administrative act is void under § 44 VwVfG if it suffers from a particularly serious defect and this is obvious when all relevant circumstances are considered. Examples include measures issued by an authority lacking jurisdiction or administrative acts that contravene public morals or fundamental constitutional principles. The voidness means that the administrative act has no legal effect at all—it is as if it had never been issued. In practice, however, voidness rarely plays a major role, since most errors merely lead to contestability rather than absolute ineffectiveness. The determination of voidness may be made by the authority itself or within the framework of court proceedings.
Under what conditions may the administration exercise discretion, and how is this legally reviewed?
The legislature grants the administration discretion in certain cases in order to allow flexible responses to complex situations. This discretion can be identified in statutory language by terms such as “may”, “is allowed to”, or “is entitled to”. Legally, administrative discretion is subject to constraints: discretion must be exercised according to the legislative purpose (“failure to exercise discretion” occurs when an authority fails to make use of its discretion, “exceeding discretion” occurs when it exceeds its legal limits, and “abuse of discretion” in cases of inappropriate or arbitrary decisions). Judicial review takes place to check whether the administration has observed the boundaries of its discretion, but not whether it has made the “best” decision. This ensures that the administration does not act arbitrarily or capriciously.
What is the significance of the right to inspect files in administrative proceedings?
The right to inspect files is a central procedural right for citizens and other participants in administrative proceedings. It serves the transparency of administrative actions and ensures that affected persons have access to all relevant information so that they may adequately defend themselves or assert their rights. According to § 29 VwVfG, parties to the proceedings may, upon request, inspect the files that concern them. However, the authority may exclude certain documents from inspection if, for example, they serve the public interest of the federation or a state, the legitimate interests of third parties, or the protection of business and trade secrets. File inspection is generally free of charge and granted by personal inspection, electronic transmission, or file mailing. If the right to inspect files is unlawfully denied, affected individuals may pursue legal remedies.
What are the legal requirements for administrative enforcement?
Administrative enforcement is the compulsory execution of public law obligations by the administration itself, regularly based on the Administrative Enforcement Act (VwVG) of the federal government or corresponding state regulations. The legal prerequisite is the existence of an enforceable, effective administrative act that imposes an obligation to act, tolerate, or refrain, and is usually accompanied by a warning regarding the coercive measure. Before the use of direct force, less severe means such as penalty payments or substitute performance must generally be exhausted. The principles of proportionality and legality must always be observed. Legal remedies against enforcement measures may be sought, although requirements and procedures may vary by federal state.
