Auflösung staatlicher Hochschulen in Nordrhein- Westfalen durch Eröffnung des Insolvenzverfahrens? - eine Erwiderung

摘要

This article is in reply to Klaus Peters treatise that appeared in the last edition of the magazine. Klaus Peters dealt with the deliberations of the government as to what steps they would take towards the planned Hochschulfreiheitsgesetz (i.e. university liberation law) through which the North-Rhine-Westphalian universities, acting as independent corporations, would, in future, be granted the ability to declare insolvency. This plan was viewed to be unconstitutional. The reply shows that this is definitely not the case. The introduction of the possibility to declare insolvency for the independent universities is not in contravention with the guarantee of academic freedom according to article 5 para 3. of the German Constitution, and does not represent an arbitrary act on the part of the legislator. As part of their managerial policy, the government has, in the meantime, decided that instead of granting the universities the ability to declare insolvency they will take advantage of a different form of control in which the stat's responsibility for warranty will be safeguarded. The article analyses the constitutional areas of tension in which the ability to declare insolvency is placed. On the one hand, it is the tension between insolvency creditor's guarantee of ownership and the state's constitutional responsibility for warranty and, on the other hand, the academic freedom and autonomy of the universities. Ways are then shown as to how this tension can be overcome so that practical conformity between the rights concerned can be reached. Ultimately it is shown, that because of the outstanding significance the universities have for the cultural and economic future of the country, it is not arbitrary that the universities - unlike other legal persons in public law - plan the ability to declare insolvency.