Term and Meaning of ‘Entschließung’ in Law
Die Entschließung is a central concept in German law and refers to a specific process of forming intent or the result of intent within the framework of legal decision-making. Depending on the area of law, ‘Entschließung’ can refer to different, yet related, legal processes. The concept plays an especially significant role in administrative law, criminal law, civil law, and procedural law. Below, the key aspects, forms, and legal consequences of ‘Entschließung’ are systematically presented.
Entschließung in Administrative Law
Definition and Function
In administrative law, Entschließung refers to the first stage of an authority’s formation of will within an administrative procedure. Here, an authority decides whether it wants to take any action at all and initiate an administrative procedure in a specific case. This act of will is preceded by a corresponding investigation of facts or acknowledgment.
Distinction: Entschließung and Selection Measure
From an administrative law perspective, a distinction is made between ‘Entschließung’ and the selection measure. The Entschließung is the basic decision about whether action will be taken at all. The subsequent selection decision concerns the ‘how,’ i.e., in which specific manner, with which content, towards whom, and with what objective the measure is to be executed.
Example
In police and regulatory law, a classic example of ‘Entschließung’ is an authority’s decision to act at all against a potential disturbance of public safety. Only in a subsequent step is it determined how this should take place (e.g., by issuing a removal order, detention, or seizure).
Legal Relevance
The legal reviewability of the ‘Entschließung’ is an essential aspect. Judicial review generally extends to the entire administrative action; however, there are also areas in which the authority is granted a discretion in decision-making (Entschließungsermessen) . In these cases, the authority is afforded discretion as to whether it will take any action at all.
Discretionary Errors and Judicial Review
A possible discretionary error can exist in the area of ‘Entschließung,’ particularly in the form of failure to exercise discretion (failure to act despite obligation), abuse of discretion, or exceeding discretion. Judicial review takes place within the scope of an action for performance or an action for annulment.
Entschließung in Criminal Law
Significance in the Subjective Elements of the Offense
In criminal law, ‘Entschließung’ plays a particularly important role in connection with intent (Vorsatz) and the law of attempt . In the spectrum of the perpetrator’s will formation, ‘Entschließung’ is seen as the internal, volitional decision to commit a crime.
Stage of Fulfilling the Elements of the Offense
In terms of the commencement of an attempt, ‘Entschließung’ is significant:
- Formation of the intention to commit a crime (Tatentschluss): The perpetrator forms the intention to commit the act, which lies within the stage of the so-called preliminary non-punishable area.
- Execution of the act: Only with the undertaking of the first action that is intended to directly fulfill the elements of a criminal offense does the punishable attempt begin.
Thus, ‘Entschließung’ serves as a criterion in criminal law for distinguishing between non-punishable preparatory acts and the commencement of a punishable attempt according to § 22 StGB.
Entschließung in Civil Law
Declaration of Intent and Formation of Contract
In civil law, ‘Entschließung’ regularly refers to the internal decision to make a legal declaration (e.g., to conclude a contract, submit an offer, accept an offer). The declaration of this decision to the outside is the essential structural element of the declaration of intent pursuant to §§ 104 et seq. BGB.
Distinction from Mere Thought
According to prevailing opinion, mere internal intent to make a declaration of intent, without a corresponding legal expression, is not legally effective. Only the concurrence of intent, declaration, and receipt constitutes an effective legal act.
Contestability and Sources of Error
Errors occurring within the decision-making process can justify contestability pursuant to § 119 BGB, for example, if a person is mistaken as to the content of a declaration of intent (mistake in declaration, mistake as to content).
Entschließung in Procedural Law
Judicial Decisions and Passing of Resolutions
In procedural law, ‘Entschließung’ generally refers to the formal decision of a court within the framework of proceedings. This includes orders or decisions that determine the further course of the process or procedural measures.
Difference from Judgments
A ‘Entschließung’ in this sense must be distinguished from judicial judgments. It concerns orders, directives, or other measures that are not final or enforceable in the sense of a final judgment.
Special forms of ‘Entschließung’
Entschließung in the Context of Constitutional Law
In international and constitutional contexts, ‘Entschließung’ often refers to a formal declaration or position adopted by a body (e.g., Bundestag, Landtag, UN bodies), which generally does not have the force of law but has a politically programmatic or advisory character.
Literature, Case Law and Further Guidance
For further in-depth study, the relevant commentaries on the applicable provisions in administrative procedural law, the Criminal Code, the Civil Code, as well as the standard works on the General Part of public and private law are recommended. The case law of the Federal Courts clarifies practical applications and provides additional guidance.
Summary
The ‘Entschließung’ is a fundamental term in various fields of law and represents a certain stage or result of the process of forming intent in a legal context. It plays a central role in the actions of authorities, criminal investigations, civil transactions, and procedural actions. Precise knowledge of its meaning, legal requirements, and the distinction from other acts of will is essential for understanding and legally evaluating numerous situations.
Frequently Asked Questions
What legal requirements must be met for an ‘Entschließung’ to be established?
An ‘Entschließung’ in the legal context requires that a competent body—such as the shareholders’ meeting of a GmbH, the board of an association, or a committee of a corporation—has the authority to pass resolutions. This may result either from the law, such as §§ 47 et seq. GmbHG for the shareholders’ meeting, or from the relevant articles of association or rules of procedure. For a resolution to be validly adopted, the body must have been duly convened, the members invited in proper form and within the prescribed time limit, and the subject of the resolution must have been included on the agenda (principle of agenda binding). Furthermore, the presence of a quorum and compliance with any qualified majority requirements must be verified. In some cases, special formal requirements must be met (e.g., in writing, recording in the minutes, or entry in a register). If the resolution is made in writing or electronically, the statutory provisions on electronic communication must be observed.
What are the legal effects of a resolution after its adoption?
After adoption, a resolution generally becomes binding on the respective body and on the persons or members affected by it. The legal effect depends substantially on the type of resolution: Is it a resolution with normative effect (e.g., amendment of articles), an administrative act, or a decision on internal matters? While its effect is generally limited to the internal sphere of the legal entity, a resolution may also have external effect, for example, if third parties are bound by it or if it effects legal changes (such as entry in the commercial register). If the resolution is void or contestable, its effectiveness lapses (retroactively or ex nunc, depending on the grounds for challenge and the legal framework).
Under what circumstances can a resolution be legally challenged?
Challenging a resolution is always subject to certain formal and substantive requirements. Generally, any person directly affected by the resolution and whose rights may be impaired may bring an action (e.g., shareholder action under § 246 AktG or a member of a corporation under association law). Grounds for challenge typically include breaches of law or articles (such as lack of quorum, invalid agenda, exclusion from voting, miscalculation of majority, or errors in convening). The period for challenge is usually one month from notification or determination, but this may differ depending on the legal form and regulations. If the resolution is not challenged in time, it usually becomes unchallengeable, unless there is a particularly serious defect leading to nullity.
What are the differences between resolutions in private and public law?
In private law, especially for companies or associations, resolutions (i.e., decisions) typically serve to organize internal procedures and decision-making processes. They are passed at meetings, by written circulation, or via electronic processes, and bind the members of the respective association; their legal effect derives from the articles of association, partnership agreements, or association rules. In public law, resolutions are regularly adopted by bodies of the sovereign administration or self-governing bodies (such as municipal councils, committees). They may be normative (e.g., articles of association resolutions) or apply to individual cases. While private law is largely governed by private autonomy, public law requires adherence to the principles of administrative law, the principle of legality, and often involves extensive participation and publication procedures.
How do resolutions relate to other decisions and administrative acts?
Resolutions are legally related to decisions, but often differ in their legal scope or effect. While every decision by definition expresses the formation of will and a binding decision by a body, the concept of ‘Entschließung’ can sometimes be broader, encompassing statements of intent or fundamental decisions without direct external effect. Administrative acts, by contrast, are characterized by the fact that they are issued unilaterally by an authority or administrative body towards a citizen or third party and have immediate legal effect externally, for example in the form of permits, prohibitions, or orders. Resolutions may serve as the basis or prerequisite for administrative acts (e.g., a resolution to initiate a planning measure, upon which an administrative act is later issued).
What are the legal consequences of the nullity of a resolution?
If a resolution is void, it is treated as invalid from the outset and has no legal effect. Grounds for nullity can include violations of the law with particularly grave consequences or gross procedural and formal defects, such as failure to comply with mandatory statutory notice requirements, complete absence of the authority to adopt resolutions, or violations of public policy or good morals (§ 134 BGB, § 138 BGB). Nullity does not require judicial confirmation, though it may be clarified in legal proceedings. Unlike contestable resolutions, nullity is taken into account ex officio and may be invoked by anyone. Repetition or re-adoption of the resolution is possible once the defects have been remedied.
To what extent is there a publication requirement for resolutions?
The publication of a resolution is legally required where the law, the articles of association, partnership agreement or administrative procedural regulations so provide. In corporate law, publication is mandatory for those resolutions that create facts subject to registration (e.g., amendment of articles of association or capital measures in corporations), with registration in the commercial register required (§ 12 HGB). In association law, amendments to the articles of association may need to be published to be effective. In public law, publication of municipal or administrative resolutions is often required in the interest of legal certainty, transparency, and public participation; violations can render the measure ineffective. In certain cases, however, confidentiality interests or the protection of personal data may preclude publication.
