The indefinite right term designates a characteristic within a legal regulation, an official decision or an other source of right, which does not regard clear contents from linguistic view for itself to have seems in the administrative law, which is "indistinct" to a certain extent. Only by interpretation the indefinite right term at sharpness wins. The interpretation always includes thereby an evaluation of all circumstances of the individual case, in which the term is to be used concretely.

'' Indefinite right terms are for example:

• '' "Became humans"
• '' "Consciences"
• '' "Unreliability" of the manufacturing one ("§ 3: Trade and industrial regulations)
• '' "public and private interests", which are to be weighed during the building zoning plan against each other, ("§ 1 exp. 6 building law book),
• '' "substantial" disadvantages
• '' "substantial" annoyances ("§ 5 exp. 1 federal immission control law),
• '' "public interest"
• '' "Case of hardness"
• '' "Suitability"
• '' "important reason"
• '' "to the well-being of the child"
• "roughly negligently"

Application of the indefinite right term

Last-obligatory interpretation by the courts as a rule

Regardless of its contentwise there is a correct interpretation for each indefinite right term in each concrete individual case in principle only exactly. This a correct interpretation must find the administrative authority during the application of the law and the Administrative Court in the law case will if necessary examine. The power to finally decide on it which interpretation is the correct, lies therefore - like also in most other cases the application of the law - with the courts. Last decision the latter is entitled to the courts in this sense.

Last-obligatory interpretation by the authority (evaluation clearance)

In few exceptional cases deviating from it the administration is finally authorized to determine the correct interpretation within certain borders. In these cases an evaluation clearance so mentioned is entitled to the authority. Those are above all such cases, in which authorities decisions have to meet, which are so strongly situation-dependent that this situation dependency in the judicial procedure cannot reconstruct and be reconstructed. Such a evaluation clearance is in particular recognized with certain

• Examination and testsimilar decisions (state States of, transfer into the next class, Abitur,
• official-legal evaluations,
• Prognosis decisions and risk evaluations in particular in the environment law,
• Valuation decisions instruction, with representatives or experts of occupied committees and committees.

As far as an evaluation clearance is entitled to the authority, the Administrative Court may examine only whether the decision of the administration holds itself within the borders, which pulled for the practice of this evaluation clearance. If that is the case, the court must in all other respects accept the decision of the authority.

With the examination of test decisions about the court can therefore only examine whether the authority proceeded from applicable "circumstances", whether it kept all relevant procedural specifications, used and freely from irrelevant considerations decided recognized standards of valuation.

The evaluation clearance does not have anything to do with the scope for discretion (in detail see there) and may therefore not with this be confounded. Differently than the evaluation clearance the scope for discretion concerns not the interpretation of right terms, but the decision in individual cases for one of several legally permissible legal consequences. Comparable is the estimation clearance with the evaluation clearance only to that extent, and the scope for discretion of the authority one judicially only limited examinable last decision the latter grants.

Scope for discretion and evaluation can meet in in and the same legal rule (so-called coupling regulations), approximately in the form that on facts side an indefinite right term is open available, and on the legal consequence side discretion.

Indefinite right term and right-national certainty requirement

The conflict between the linguistic of the indefinite right term and the necessity to have to come nevertheless in each individual case to exactly a only one applicable interpretation lies the special problem of the indefinite right term. Because its and the large number of the interpretation possibilities, which this opens, make it for the right user - indifferent whether concerning, student of the jurisprudence or attorney - with difficulty to foresee, to which interpretation authority or court will in the long run come, how thus the law concerned is to be used in the long run.

Indefinite right terms are nevertheless compatible with the requirement of the certainty of legal regulations, which results from the constitutional state principle, in principle, as long as only the term can be specified by interpretation sufficiently.

In all other respects a practical need exists for indefinite right terms in legal rules. Because legal rules can regulate naturally not each individual case, to which they are to apply, in front expressly, but are dependent on it, the range, to which they are to apply to describe abstractly. Abstractness brings however inevitably in the detail with itself.

Nevertheless one is itself over the fact united that indefinite right terms are actually to be avoided. They vacate that executive bodies if necessary authority and authority too, which they should not at all have and which administrative apparatus to blow up. If there are indefinite right terms nevertheless, then that has the reason, because the legislator creates laws, which can be decided only due to individual cases, so that legally only the abstract formulation appears possible.

See also: Estimated

Articles in category "Indefinite right term"

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