Correlative System Interferences – On the Relationship between Public Law and Private Law on the Example of Financial Services Regulatory Law

Basic data for this project

Description

The distinction between public law and private law is one of the fundamental distinctions within the national legal system. Nevertheless, there are manifold connections and overlaps between the legal sub-systems. In the application of law, they entail complex questions that have not yet been answered satisfactorily. Closing this research gap is the intention of this postdoctoral thesis. Based on general reflections on the relation of public law and private law, I developed a general doctrine of interference, understood as a set of rules guiding the application of law in the interface area of the legal sub-systems. The relationship between financial services regulatory law and private law will serve as a reference example. The doctrine of interference is based on the premise that the legal sub-systems are independent and of equal rank, and that this is precisely where the benefits of the dichotomy lie. One focus of the work is the development of a guiding principle to which dogmatics and methodology in the area of overlap of the legal sub-systems are committed. Whereas previous approaches have argued for the primacy of one over the other or for a far-reaching harmonization of public law and private law, I support the hypothesis that the legal sub-systems should be applied as independently and unaffected by each other as possible. In this way, the respective goals of the legal sub-systems and the potential stemming from the dichotomy can be realized and refined to the maximum extent possible. Coordination of the legal sub-systems is only necessary in exceptional cases if so-called obstructions arise between the partial legal systems: this is the case if coordination of the partial legal systems is mandatory on constitutional grounds or if uncoordinated coexistence of the legal sub-systems would significantly impede the realization of the objectives of one of the legal sub-systems. How obstructions are to be resolved is a matter I will address subsequently. The general methodological rules for resolving conflicts of norms prove to be inept. Rather, obstructions must be resolved by means of interferential concordance in such a way that the objectives of the conflicting legal sub-systems are realized to the greatest possible extent. I will then get to the specifics of how to implement this finding methodologically. One focus is on the specific features that must be taken into account in the reference framework of European Union law. In addition, I will examine to what extent methodologies specific to the particular sub-system have developed and the degree to which this calls for coordination in interface areas of the legal sub-systems as well. Finally, I will illustrate the applicability in practice of the principles developed by way of the example of unresolved disputes on the relation between financial services supervisory law and private law.