Thèses sur le sujet « Administrative law – Germany (West) »

This paper attempts to expand the knowledge on these issues and therefore seeks to get a deeper understanding on the legal regulation of internal party democracy, which is widely considered as one of the most controversial topics concerning party regulation. This will be done by carrying out a case study of two constitutional democracies that handle party regulation differently. Germany, known as 'heart land of party law', constitutes the example of a state in which the internal organisation and functioning of political parties is regulated by both the Basic Law (the German Constitution) and federal laws. South Africa will be provided as the contrast example of a state that lacks express provisions that regulate the internal organisation and functioning of political parties. This paper does therefore not seek to conduct a 'classical' comparative study as the legal framework of two countries will be examined which deal in different ways with internal party democracy. However, this research approach promises to create a more holistic - even though certainly not complete - image of the challenges of the legal regulation of internal party democracy.

The sectoral and occupational structure of Britain and West Germany has increasingly changed over the last fifty years from a manual manufacturing based to a non-manual service sector based one. There has been a trend towards more managerial and less menial type occupations. Britain employs a higher proportion of its population in the service sector than in manufacturing compared to West Germany, except in retailing, where West Germany employs twice as many people as Britain. This is a stable sector of the economy in terms of employment, but the requirements of the workforce have changed in line with changes in the industry in both countries. School leavers in the two countries, faced with the same options (FE, training schemes or employment) have opted for the various options in different proportions: young Germans are staying longer in education before embarking on training and young Britons are now less likely to go straight into employment than ten years ago. Training is becoming more accepted as the normal route into employment with government policy leading the way, but public opinion still slow to respond. This study investigates how vocational training has adapted to the changing requirements of industry, often determined by technological advancements. In some areas e.g. manufacturing industry the changes have been radical, in others such as retailing they have not, but skill requirements, not necessarily influenced by technology have changed. Social-communicative skills, frequently not even considered skills and therefore not included in training are coming to the forefront. Vocational training has adapted differently in the two countries: in West Germany on the basis of an established over-defined system and in Britain on the basis of an out-dated ill-defined and almost non-existent system. In retailing German school leavers opt for two or three year apprenticeships whereas British school leavers are offered employment with or without formalised training. The publicly held view of the occupation of sales assistant is one of low-level skill, low intellectual demands and a job anyone can do. The traditional skills - product knowledge, selling and social-communicative skills have steadily been eroded. In the last five years retailers have recognised that a return to customer service, utilising the traditional skills was going to be needed of their staff to remain competitive. This requires training. The German retail training system responded by adapting its training regulations in a long consultative process, whereas the British experimented with YTS, a formalised training scheme nationwide being a new departure. The thesis evaluates the changes in these regulations. The case studies in four retail outlets demonstrate that it is indeed product knowledge and selling and social-communicative skills which are fundamental to being a successful and content sales assistant in either country. When the skills are recognised and taught well and systematically the foundations for career development in retailing are laid in a labour market which is continually looking for better qualified workers. Training, when planned and conducted professionally is appreciated by staff and customers and of benefit to the company. In retailing not enough systematic training, to recognisable standards is carried out in Britain, whereas in West Germany the training system is nevertheless better prepared to show innovative potential as a structure and is in place on which to build. In Britain the reputation of the individual company has a greater role to play, not ensuring a national provision of good training in retailing.

In May 1945, United States Military Government (MG) detachments arrived in assigned areas of Bavaria to launch the occupation. By the summer of 1945, the US occupiers became the ironical combination of stern victor and watchful master. Absolute control gave way to the "direction" of German authority. For this process to succeed, MG officials had to establish a stable, clearly defined and fundamentally strict environment in which German officials would begin to exercise token control. The early occupation was a highly unstable stage of chaos, fear and confusing objectives. MG detachments and the reconstituted German authorities performed complex tasks with many opportunities for failure. In this environment, a crucial MG obligation was to help secure law and order for the defeated and dependent German populace whose previously existing authorities had been removed. Germans themselves remained largely peaceful, yet unforeseen actors such as liberated "Displaced Persons" rose to menace law and order. The threat of criminal disorder and widespread black market activity posed great risks in the early occupation. This thesis demonstrates how US MG established its own authority in the Munich area in 1945, and how that authority was applied and challenged in the realm of criminal law and order. This study explores themes not much researched. Thorough description of local police reestablishment or characteristic crime issues hardly exists. There is no substantial local examination of the relationship between such issues and the early establishment of MG authority. Local MG records housed in the Bayertsches Hauptstaatsarchiv (Bavarian Main State Archives) provide most of the primacy sources. This study also relies heavily on German-language secondary sources.

This dissertation explores the pragmatic implications of judicial rhetoric found in a 1988 Supreme Court decision, i.e., this is a dissertation about public administration using constitutional law to illuminate an administrative question. My viewpoint is a legal/constitutional one which uses the law as pedagogue to inform public administration and to offer a useful message for the public administration practitioner. That message deals with a legal/constitutional distinction between publicness and privateness and the implications of that distinction. Quincy West was sentenced to prison in 1973 for armed robbery. While in prison he suffered a torn Achilles tendon for which he received inadequate medical care. After numerous attempts to obtain medical care, West filed suit against the prison physician contractor in federal courts for cruel and unusual punishment. This dissertation uses the story of West's legal efforts and the Supreme Court's decision in his case to discuss the broad implications of that decision for the public administration practitioner and government contractors. The lens is a constitutional one. The framework is John Rohr's schema for understanding a Supreme Court case: viewing that case from the institutional, concrete, dialectical, and pertinent perspectives. The specifics of West's allegations against his physician invite discussions of bioethical topics such as informed consent and medical legal topics such as malpractice and patient abandonment. The Court's determination of state action in West v. Atkins (1988) requires discussion of the administrative areas of contracts and grants administration as well as risk management. The complex responsibilities of the public administration practitioner are examined, as is his or her need to follow and independently learn from the messages included in the courts' interpretation of the law. This historic story illustrates that there is no bright line between law and policy. The Court's dialogue with itself is not merely interpretation and development of the law - it is policy reformulation. For this reason, among others, the conscientious administrator must monitor the Court's ongoing dialogue and listen attentively to its messages of import for our field and our practice.
Ph. D.

Four years after the end of the National Socialist dictatorship and a disastrous major war, basic rights and democratic government were enshrined in the Basic Law for the Federal Republic of Germany in May 1949. Thus parliamentary democracy was formally and institutionally reintroduced to Western Germany at the Bund level. Successful implantation of democracy, however, requires not only constitutional arrangements but also, and perhaps more importantly, participation on the part of the people in the democratic process. Through analysis of the public involvement in the Basic Law's formulation and the impact of the public debate on the deliberations of the Parliamentary Council between September 1948 and May 1949, the degree of participation of Germans in the three Western zones of occupation, upon which the new West German state could subsequently build, is explored. Initial answers are suggested in chapter II and then developed in subsequent chapters as various contentious topics debated by the Parliamentary Council are examined. Anti-parliamentarianism, the search for a new symbol, newspaper perceptions as a reflection of the reality of interaction between occupier and occupied in the constitution's formulation, and the public debate about the nature and status of the second chamber, about the relationship between God and the Basic Law, and about full equality for women are analysed. The nature and extent of the public debate 1948-1949 make clear that the German population of the Western zones had already begun to think and function in a democratic fashion on the Bund level. This thesis suggests that the creation of an institutional framework, such as the Basic Law, should not be overemphasized at the expense of the developing democratic culture in post-war Western Germany. Without the gradual democratization of the population already well underway when the provisional constitution came into force on 23 May 1949, it is unlikely that the Federal Republic of Germany could have established itself so successfully so quickly.

This comparison has shown that the traditionally divergent positions, which are taken in the control of administrative action in England and Germany, display some common ground in very general terms on which decisions are being taken. The formulation of these general observations is valuable in the preparation of a transnational approximation of judicial review mechanism for the establishment of comparable levels of judicial protection in Europe. These results may be useful for future developments of a common system of judicial review across Europe, even though these results may only represent two pieces in the jigsaw. The comparison has also identified major differences and assessed the reasons for the diverging developments in a historical perspective. The identification of these differences is equally important because of the need to find compromises between divergent systems. Secondly, the thesis was concerned with an analysis of the degree of Europeanisation of the national judicial review systems and the concept of public liability as it is currently emerging. Here, some changes can be noted in both legal systems, which have led to a slow convergence of the systems. The changes in England are marked by an increasing openness for more transparency in the decision-making and the development of a more rights based culture. The substantive review of administrative decision through the application of sharper tools such as proportionality and substantive legitimate expectation mark a new era. Germany, on the other hand displays very high standards of review. The changes in Germany which were provoked mainly by case law of the European Court of Justice indicate the need to reduce the standard of review in some areas, such as the protection of substantive legitimate expectation in the context of the recovery of, state aid. The neglect of procedural protection which is illustrated by generous provisions which allow the in-trial curing of procedural effects displays an approach in Germany which is very focused on the substantive correctness of decisions. This attitude might, in the future lead to controversies in the context of European laws. Nevertheless, limitations to a convergence are inherently set by each national systems constitutional framework. The reasons for the different developments of both legal systems in the nineteenth and early twentieth century can not be ignored and will remain to an extent to preserve the national character of both systems. The variety of results, which have been identified in the four main chapters of this thesis were concerned with issues dealing with the institutional aspects as well as systematic aspects of judicial review and public liability in England and Germany. However, the nature of this comparison required the analysis of institutional contexts as well of the substantive and procedural judicial review mechanisms. The questions asked were concerned with identification of common principles and differences in a historical context, the degree of Europeanisation, which has led to an approximation of nationally divergent positions and the limitations, which are provided by each system's constitutional framework in which judicial review operates. The comparison focused on the development of a system of judicial review of administrative action in a historical perspective, the judicial control of the exercise of discretionary powers, fair procedures and their judicial review and the liability of public authorities in tort.

Culpable homicide is the unlawful negligent killing of a fellow human being. As such it is in many respects a 'residual' crime being the verdict prosecutors may expect when they are unable to prove the intention to kill when prosecuting for murder. A feature of this was that in the past when defences such as, for instance, intoxication or provocation were raised at murder trials, convictions of culpable homicide were almost automatic. In recent years, under the influence of the 'purist' current in our Criminal law, intoxication has become a defence to culpable homicide and provocation resulting in loss of self-control has also become a defence to culpable homicide. These developments are unacceptable to some writers on criminal law and a move away from the purist approach to the 'traditional' or pragmatic approach is to be expected. Greater emphasis will be placed on practical results than on the achievement of logical consistency. This could result in the law of culpable homicide becoming more socially effective than it is at present.

Defence date: 18 January 2005
Examining Board: Prof. Peter Becker, European University Institute (Supervisor) ; Prof. Tim Blanning, Sidney Sussex College, Cambridge University ; Prof. Heinz-Gerard Haupt, European University Institute ; Prof. Bernd Wunder, University of Konstanz
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
Der von Zeitgenossen als Entfremdung und Bedrohung empfundene 'Dualismus' von Staat und Gesellschaft im Zeichen einer wachsenden Bürokratisierung des Fürstenstaates ist ein zentrales Thema der Geschichte 'moderner' Staatlichkeit im 19. Jahrhundert. Von der vormärzlichen Bürokratiekritik ausgehend schildert dieser Band den Kampf der liberalen und demokratischen Bewegung in Baden für eine Demokratisierung der Staatsverwaltung: 'Volkstümlich' sollte die Verwaltung werden! Diese Forderung verstummte mit dem Scheitern der Revolution von 1848/49 nicht, sondern wurde vielmehr in Badens 'Neuer Ära' der 1860er Jahre unter neuen Vorzeichen mit dem Bezirksrat realisiert.

博士
東吳大學
法律學系
103
Articles for tax administrative penalties in our country are legislated in and governed by different tax laws instead of by unified and general articles in Tax Collection Act. Furthermore, no concrete elements in such articles in these different tax laws are used to determine the constitution of result of tax evasion and behavior of tax evasion. Therefore, disagreement regarding the application of articles for tax administrative penalties, the constitution of result of tax evasion and behavior of tax evasion occurs in the real cases and the impact also causes to the determination of the numbers of behavior of tax evasion. The effect for punishment is obviously severe an individual case and should be unconstitutional for the violation of principle of proportionality because merely negligence can fulfill the subjective element of punishment of tax evasion and punishment of tax evasion is unlimited and is calculated by times of the amount caused for tax evasion. The similarity between German laws and our laws exists in the fields of the system for tax penalties (the distinction between tax criminal penalties and tax administrative penalties), legislation (Tax Collection Act as the fundamental law for tax penalties) and the application of laws (Administrative Penalty Act as the fundamental law for tax administrative penalties). Therefore, this thesis, from the perspectives of the related academic theories and court decisions, conducts a comparative research for the related legal issues on the concrete elements of, the effect of punishment by, and the concurrence of tax penalties. In addition, proposed amendments for the legislation are provided as the conclusion of this thesis and the resolution to the disagreement in the real cases.

Thesis (doctoral)--Ludwig-Maximilians-Universität in München, 1990.
eContent provider-neutral record in process. Description based on print version record. Includes bibliographical references (p. [4-31] (2nd group)).

Defence date: 16 May 1991
Examining board: Klaus Eder (EUI, supervisor) ; Prof. Christian Joerges (EUI/Univ. Bremen) ; Prof. Giandomenico Majone (EUI, supervisor) ; Prof. Helga Nowotny (Univ. Vienna) ; Prof. Wolfgang van den Daele (Free University, Berlin)
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017

This thesis deals with the UNCITRAL Model Law, its general purpose and history, with the current situation and regulation of international commercial arbitration in Germany, with an examination of Canada's experiences with the Model Law and its acceptance by the Canadian Courts. It also deals with the question whether the Model Law really is an ideal arbitration law, and the thesis concludes with an evaluation of British Columbia's experiences and a strong recommendation to the German legislature to implement the UNCITRAL Model Law into the German statutes as soon as possible. The final chapter of this thesis contains a suggested English version of the new German International Commercial Arbitration Act. As an appendix, I have provided the texts of the British Columbia International Commercial Arbitration Act and the UNCITRAL Model Law. The intention of my thesis is to examine how Canada, and its province British Columbia in particular, have implemented the UNCITRAL Model Law. In this context, the analysis emphasizes on the modifications of the original Model Law made by the British Columbia legislature, the British Columbia International Commercial Arbitration Act of 1986, this Act's acceptance by the Courts of British Columbia, the acceptance of the Model Law by Canadian Courts in general, the improvements in the area of international commercial arbitration in Canada since 1986, and the B.C. International Commercial Arbitration Centre. There are two reasons for my investigation of the Canadian experience. The first reason is the fact that these Canadian experiences with the Model Law are of interest to the Federal Republic of Germany, because Canada was the first country in the world to adopt the UNCITRAL Model Law almost a decade ago, and the Federal Republic of Germany presently is considering implementing the Model Law as well. Therefore, Canada, and British Columbia in particular, can be exemplary models for Germany. The German adoption of the Model Law is another main issue of this thesis which deals with problems arising in Germany in connection with the implementation. My thesis is that the Federal Republic of Germany has to implement the UNCITRAL Model Law as soon as possible. Some facts to be discussed and results of my research that really support my thesis in this context are the goals of Germany concerning international commercial arbitration, the positive experiences of Canadian jurisdictions with the Model Law, the need for uniform commercial arbitration laws world-wide, and the warm reception of the Model Law by most international businesses and the Canadian Courts. In the discourse of my thesis, I basically try to prove four points, namely that the implementation of the UNCITRAL Model Law in Canada and in its province British Columbia has been a successful undertaking, that the Federal Republic of Germany also needs to implement the Model Law, that there are no problems with the enactment of the Model Law due to its international origin in Canada, and that there are not likely to be any problems in Germany concerning this matter, either, and finally, that the BC-ICAA is the ideal and ingenious continuation of the Model Law which can be recommended to the German legislature, (a) with all its modifications made by the British Columbia legislature, and (b) with certain other modifications that have to made for a country like Germany due to its constitutional, economical and geographical situation. This thesis hence tries to elaborate the ideal and perfect International Commercial Arbitration Act (or Law?) for Germany — thereby relying on the experiences and modifications made by British Columbia.