Legal Aspects of Revocation of Capacities
The revocation of capacities is a significant measure in German law as well as in the law of many other countries, by which a person loses certain legal or actual powers. This term often refers to the withdrawal of specific qualifications, rights, or abilities by an administrative or judicial decision. The following analysis examines in detail the legal significance, prerequisites, procedure, and consequences of the revocation of capacities.
Concept and Legal Classification
Definition
A capacity is understood as the legal or actual ability of a person to perform certain tasks, functions, rights, or duties. Revocation of capacities thus means the formal withdrawal of such an ability by a competent authority. In German law, revocation of capacities is found, among others, in criminal law, public service law, commercial and professional law, as well as in connection with certain licenses.
Relevance in Law
The revocation of capacities serves to protect public or private interests. The aim is to prevent persons who have proven to be unworthy, unreliable, or unsuitable from continuing to exercise special rights or perform functions that require a high level of trust.
Areas of Application
Criminal Revocation
In criminal law, the revocation of civil honors, academic degrees, or other capacities can occur by judicial decision. A classic example is the revocation of eligibility for public office, eligibility to vote, and the right to vote (§ 45 StGB). Furthermore, for example, under the Soldier Act, in cases of serious service offenses, the capacity to hold public office can be revoked.
Professional Revocation
In commercial and professional law, the capacity to practice a profession, trade, or other independent activity can be revoked. Examples include the withdrawal of a doctor’s license to practice (Approbation) or the prohibition of commercial activity under the Trade Regulation Act (Gewerbeordnung). Also, the organs of legal entities (e.g., managing directors of companies) can, under certain circumstances, have their ability to exercise their position revoked.
Public Office and Civil Service Law
In public service law, revocation of a capacity once acquired, for example to hold public office, is possible as a disciplinary measure. The legal basis is provided by federal and state disciplinary laws.
Further Examples
There are also regulations for revocation of special capacities in other areas of law, for example club law (withdrawal of honorary office) or driving license law (withdrawal of the driving license as a revocation of the ability to operate motor vehicles).
Prerequisites for Revocation
Legal Basis
The revocation of capacities always requires a legal basis. It is only permissible in those cases in which the law expressly provides for it. The relevant provisions regulate the prerequisites under which a revocation may take place.
Typical Reasons
The most common reasons for the revocation of capacities include:
- Unreliability: e.g., in trade law or traffic law, when facts justify the assumption that the person is not (or no longer) suitable to perform the relevant activity.
- Serious Service Offense: particularly in disciplinary law of the public sector.
- Conviction for Criminal Offenses: In criminal law, for example, when there is a final conviction for a serious offense resulting in a prison sentence.
- Violation of the Principle of Trust: When the person breaches requirements necessitating special trustworthiness.
Proportionality
The measure of revocation always constitutes a significant intervention and is therefore subject to the principle of proportionality. It may only be taken if milder means are insufficient to achieve the intended protective aim.
Procedure for Revocation of Capacities
Initiation of Proceedings
The procedure is generally governed by the relevant procedural provisions, for example, criminal procedure law, administrative procedure law, or specific disciplinary statutes. The respective competent authority or court examines whether the legal requirements are met.
Participation of the Affected Person
The affected person is generally to be heard during the proceedings. They have legal remedies available to oppose the revocation, for example objection or an action before the administrative court, appeal, or revision.
Finality and Notification
A revocation only becomes effective once the decision is final. It must be notified to the affected person. In certain cases, entry of the revocation in public registers is required, for example in the medical register or the central trade register.
Consequences of Revocation
Effects on Existing Positions and Rights
Revocation results in the immediate or, at the latest, final loss of the relevant capacity by the affected person upon finalization. This may include, among others, loss of an office, termination of civil service status, deletion from relevant registers, or exclusion from elections.
Duration of the Measure
As a rule, revocation is permanent. However, some revocations may be time-limited or end after certain periods have expired. The law sometimes provides for the possibility of regaining the capacity, e.g., through rehabilitation or by submitting an application after a waiting period.
Consequential Effects
Moreover, revocation may affect related legal areas, for example existing memberships, insurance entitlements, or positions under pension law.
Legal Remedies
Various legal remedies are available to the affected person against the decision on the revocation of capacities. These depend on the applicable law:
- In criminal law: Appeal and revision of the judgment, where applicable clemency proceedings.
- In administrative law: Objection procedures, action for annulment.
- In disciplinary law: Legal remedies in judicial disciplinary proceedings.
Furthermore, the measure is subject to review for compliance with substantive and procedural fundamental rights, such as the right to be heard and the principle of equal treatment.
Literature and Sources
- Criminal Code (StGB), especially § 45
- Trade Regulation Act (GewO)
- Federal Disciplinary Act (BDG)
- Soldier Act (SG)
- Administrative Procedure Act (VwVfG)
- Federal Lawyers’ Act (BRAO)
- Federal Medical Practitioners’ Act (BÄO)
- Driving License Regulation (FeV)
- Case law of the supreme courts
Conclusion
The revocation of capacities is a legally profound institution that enables the withdrawal of essential rights or abilities by sovereign decision. It serves to protect major societal and public interests and is subject to strict legal requirements. The rule of law’s demands regarding procedures, prerequisites, and legal remedies ensure that the measure is only applied while preserving fundamental principles of governmental action.
Frequently Asked Questions
When can the revocation of a capacity occur in the legal sense?
In the legal context, revocation of capacities occurs particularly when a person loses certain rights or abilities as a result of a statutory or official procedure. This includes, for example, revocation of a driving license for serious traffic offenses (§ 69 StGB), withdrawal of permission to carry weapons under the Weapons Act, or loss of eligibility for office in the public service. Revocation is usually done by court judgment or administrative act and typically requires the presence of certain facts, such as violation of statutory duties or proven lack of reliability. The respective legal basis and procedure depend on the affected capacity and are set out in detail in the relevant special law.
Who is responsible for revoking a capacity?
Responsibility for the revocation of capacities is fundamentally determined by law in Germany and depends on the specific capacity to be revoked. For state-issued qualifications or rights, such as a driving license, the locally competent administrative authority (e.g., the driver’s license authority) is typically responsible, while in criminal matters the court decides on revocation. For professional capacities, such as those of doctors or lawyers, the respective chamber (medical chamber, bar association), professional courts, or possibly special authorities make the decision. In the public service sector, the supervisory authority may be responsible for revoking certain rights.
What are the legal consequences of revoking a capacity?
Revocation of a capacity has significant legal consequences for the affected person. They lose the right to perform the relevant activity or to use the capacity. This may mean permanent or temporary loss of a license, permit, or authorization to practice a profession. Additional consequences must be considered, such as loss of any related privileges (e.g., gun ownership, driving privileges, civil service status), which often have economic disadvantages. Depending on the area of law and seriousness of the underlying misconduct, associated secondary penalties or professional sanctions may also occur.
Can revocation of a capacity be challenged legally?
Yes, remedies are generally available against the revocation of a capacity. Depending on whether the decision was made by an authority or a court, different legal remedies may be available. In administrative proceedings, the affected person can file an objection and, if necessary, bring an action before the administrative court. For judicial decisions, such as in criminal proceedings, there is usually the option of appeal or revision. Lodging a legal remedy often does not have a suspensive effect, unless the court orders it due to special circumstances. The success of a remedy depends on whether procedural errors or incorrect factual or legal bases exist.
Under what circumstances can a revoked capacity be regained?
Regaining a revoked capacity is generally possible but subject to strict legal requirements. In most cases, the elimination of the previously established unreliability or the rehabilitation of the affected person is necessary. In individual cases, after the expiry of a suspension period, a new application procedure is required, during which the authority or court examines whether the preconditions for re-granting exist. If necessary, proof of suitability, reliability, or ongoing professional development must be provided, as in the case of regaining a driving license through a medical-psychological assessment (MPU). The details always depend on the specific law.
What role do prior convictions play in the revocation of capacities?
Prior convictions can play a significant role in the revocation of capacities, especially if they are related to the power exercised. For example, a prior conviction for fraud may lead to denial or revocation of a person’s authorization to practice a certain profession, such as in the financial or legal sector. The use of prior convictions is expressly regulated in the relevant laws and must always be assessed on a case-by-case basis. In some cases, subsequent rehabilitation is possible, especially if the prior conviction has been expunged from the Federal Central Register or there is a positive social prognosis.
What effect does revocation have on existing contracts or legal relationships?
Revocation of a capacity can have a significant impact on existing civil or public-law contractual relationships. For instance, the loss of a professional license usually leads to the immediate termination of corresponding service or employment contracts, as the relevant expertise or authorization is a prerequisite for the fulfillment of the contract. In certain cases, the contracting party may claim damages or a special right of termination. Furthermore, revocation may also become relevant insofar as it subsequently renders previously rendered services unlawful, which, depending on the case, can lead to claims for reversal. Public-law obligations, such as notification of the act of revocation to other authorities, are also important.
