ドイツ行政手続法における第三者の手続参加(2・完)(横田禎昭教授退職記念特集)

概要

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The administrative procedure act in Germany (Verwaltungsverfahrensgesetz, VwVfG) provides two third parties' participation systems. The first is "einfache Hinzuziehung" ( § 13 Abs. 2 S. 1 VwVfG), according to which the participation of the third parties is at the discretion of the administrative agency. The second is "notwendige Hinzuziehung" ( § 13 Abs. 2 S. 2 VwVfG), which requires the administrative agency to approve their participation under certain conditions. Therefore the third parties have the right to participate in the administrative procedure. The central condition of "notwendige Hinzuziehung" is that the administrative act (Verwaltungsakt) has the right-forming effect (rechtsgestaltende Wirkung) on the third parties. The concept of right-forming effect doesn't express the degree or scale, but the way of effect. As a result, it is possible that those who are factually but seriously affected by an administrative act cannot participate in the procedure. For various reasons, the necessity of extention of the right to participate is advocated. The views fall into two groups. The first views purpose to give further procedural protection to the third parties. The second are founded on other motives, namely, the necessity of finding of fact and the protection of the existing participants' interests.
2003-03-28