Term and Meaning of Demission
The term Demission derives from the Latin ‘demissio’, which means ‘dismissal’ or ‘resignation’. Legally, demission refers to the relinquishment of a public office, particularly in political and constitutional contexts. It can occur either voluntarily (resignation) or be forced (removal or dismissal). In Germany and other countries, the term is mainly used for members of the government, but also for bodies and executive positions in public law corporations as well as associations and companies.
Demission in Public Law
Demission of the Government
In constitutional law, demission usually refers to the collective or individual resignation of government members. A distinction is made between voluntary demission and demission as a result of a forced measure, such as a vote of no confidence or removal from office.
Government Demission in Germany
According to Art. 64 para. 2 of the Basic Law (GG), the term of office of federal ministers ends with the appointment of a successor or by dismissal. The resignation of a Federal Chancellor (demission) according to Art. 69 GG results in the relinquishment of the entire office. However, after a demission, the federal government remains in office in a ‘caretaker’ capacity until a new Federal Chancellor is elected and a new government is formed (Art. 69 para. 3 GG). This principle of continued management of government affairs is intended to ensure state continuity and to prevent a government incapable of action.
Forms and Legal Consequences
Demission occurs through:
- Individual resignation: an individual government member, e.g., a minister, relinquishes office.
- Collective resignation: the entire government (cabinet) announces its resignation.
- Forced demission: for example, through a confidence or no-confidence vote by parliament.
In the case of demission, the legal effects are especially characterized by the continued caretaker management of official duties. Full rights and obligations are restricted until a new government is formed.
Demission in the Federal States and Municipalities
In the German federal states, the respective state constitutions and rules of procedure regulate the demission of state governments according to comparable guidelines as at the federal level. At the municipal level, mayors or other officeholders can also demission, with municipal constitutions providing for various forms and procedures.
Demission in Private Law
Association Law
In association law, demission generally refers to the resignation of a board member. According to § 26 BGB, a board member may resign at any time unless otherwise stipulated in the articles of association. However, the resignation must not occur at an inopportune time or be abusive, for example if it renders the association incapable of acting.
Corporate Law
For capital and personal companies, the same applies to managing directors, executive boards, and supervisory bodies. In principle, these can resign at any time unless this constitutes a particular breach of fiduciary duty. The possibility of removal by company bodies (e.g., shareholders’ meeting, general meeting) also represents a form of forced demission.
Form and Procedure of Demission
Written Form and Notification Requirement
As a rule, an explicit declaration to the relevant body or principal is required for demission. Many statutes and rules of procedure demand or recommend the written form. In constitutional law, notification often also takes place publicly and via press releases.
Effects of Demission
Upon receipt of the demission declaration, the office ends unless the articles of association, the law, or the rules of procedure provide otherwise. Especially in public law, an acting management of office is regularly put in place until the appointment of a successor. In such cases, powers are limited to ongoing administrative business.
Special Features in International Law
The institution of demission is also applied in other countries. Particularly in parliamentary systems, such as France or Austria, demission is an important constitutional instrument for government change without new elections. The details are governed by the respective national constitution and underlying rules of procedure.
Difference and Distinction from Related Terms
Dismissal
Unlike demission, dismissal is typically unilateral and occurs against the will of the officeholder or functionary. In a political context, the dismissal – for example, of a minister – can be carried out by the president or another authorized authority.
Resignation and Relinquishment of Office
The terms ‘resignation’ and ‘relinquishment of office’ are synonyms for voluntary demission, particularly in German usage. The meaning is identical, with ‘demission’ especially used in constitutional/legal contexts.
Significance and Purpose of Demission
The possibility of demission ensures, in all areas of law, both the protection of individual freedom of decision of officeholders and an orderly and comprehensible transition at the top of offices. At the same time, the regulation of forms and deadlines for demission contributes to legal certainty and continuity in office management.
Literature and Sources
- Grundgesetz für die Bundesrepublik Deutschland
- Bürgerliches Gesetzbuch (BGB)
- Bundesverfassungsgericht, decisions on caretaker management of office
- Commentary literature on constitutional and corporate law
These explanations offer a comprehensive overview of the legal aspects of demission in public and private law, including the formal prerequisites, effects, and distinctions in the German and international context.
Frequently Asked Questions
Can a demission be declared without notice and under what conditions is this legally permissible?
An immediate demission, i.e., the immediate resignation from an office or position, is only possible under certain conditions from a legal perspective. As a rule, the notice or resignation periods stipulated by contract or law apply to demission, for example in labor law or for the resignation of organ members in associations or companies. An immediate demission is permitted if there is an important reason within the meaning of § 626 BGB (German Civil Code) or comparable provisions. Such a reason exists if, taking all the circumstances of the individual case into account and weighing the interests of both parties, it cannot reasonably be expected for the demissionary to continue until the expiry of the period. Examples include serious breaches of duty by the counterparty or lasting disruptions of the relationship of trust. The reasons for the immediate demission must be communicated to the other party without delay; otherwise, the immediate resignation is ineffective and the regular deadlines apply.
What formal requirements must be observed for demission from a legal perspective?
The formal requirements for a demission depend on the respective area of law and the specific legal nature of the office or contract. As a rule, it is recommended to declare the demission in writing in order to avoid evidentiary difficulties. In specific cases – such as for managing directors of GmbHs (§ 38 GmbHG) or association board members (§ 27 BGB) – an oral demission may also be legally effective, provided the articles of association or service contract do not stipulate otherwise. However, many corporate contracts, articles of association, or service regulations explicitly require written form; certain public offices are also subject to special formal requirements (for example, in civil service laws). The correct form must be observed since otherwise the demission may be ineffective and all rights and obligations will remain in force.
Can demission have legal consequences for the demissionary?
Simply relinquishing an office (‘demission’) does not necessarily lead to disadvantages for the demissionary. However, legal consequences are indeed possible. If the demissionary has violated contractual or statutory duties by resigning, for example by disregarding agreed notice periods or by unreasonably short notice, they may be liable for damages. In corporate law, an unauthorized immediate demission may give rise to a claim for damages by the company if important tasks remain uncompleted and thereby cause financial loss. Furthermore, especially in public service or honorary posts, early resignation may affect pension entitlements or honorary rights. Therefore, it is advisable to carefully examine the legal consequences in each case and seek legal advice if necessary.
Is demission always possible in the case of fixed-term contracts or mandates?
In the case of fixed-term contracts or mandates, the possibility of demission may be contractually restricted. In principle, demission is also possible during a fixed term, especially if there is an important reason. Without an important reason, early termination of office may be excluded or the demissionary may be required to compensate for any resulting damages. In some areas of law (e.g., for board members per analogous application of § 628 BGB), the possibility of demission is not completely excluded by law, especially if the relationship of trust is seriously disrupted. The specific contractual arrangements and statutory provisions are decisive.
Must the demission be declared to a particular authority?
Yes, the demission must be declared to a specific person or body. In corporate law, the responsible organ (e.g., shareholders’ meeting, supervisory board) is regularly the recipient of the declaration; in association law, the corresponding association body; in employment relationships, the employer. If the demission is declared to an unauthorized person, it has no legal effect. In some cases, the law or contract requires that demission does not become effective until received by a particular authority (e.g., registry court for commercial companies). Correct addressing is therefore essential for effectiveness.
What impact does demission have on existing obligations and entitlements?
Upon legally effective demission, the respective service or office relationship generally ends, along with the associated duties of the demissionary, such as management of a company or performance of organ tasks. However, continuing obligations remain, such as confidentiality, the surrender of documents and assets, and the obligation to account (§ 666 BGB for agency relationships). Entitlements to remuneration or reimbursement of expenses usually exist up to the time the demission takes effect; unilateral reductions are not permitted unless other arrangements have been made or there is a gross breach of duty. If the demission was declared without justification, there may also be claims for damages or compensation.
Can demission be revoked retroactively?
Once demission has been effectively declared and received by the proper recipient, it constitutes a unilateral, receipt-dependent declaration of intention. A subsequent revocation is generally legally excluded, unless the recipient of the demission expressly consents or there are special grounds for contestation (e.g., mistake or fraudulent misrepresentation pursuant to §§ 119 ff. BGB). As a rule, a new appointment or re-election to office must be decided, with legal and factual obstacles not being excluded. A simple ‘withdrawal’ of the demission is not legally possible without the approval of the relevant body or contractual partner.
