Law of Germany
Encyclopedia
The modern German legal system is a system of law
which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany
, though many of the most important laws as for example most regulations of the civil code (Bürgerliches Gesetzbuch
, or BGB) were developed prior to the 1949 constitution. It is composed of public law
(öffentliches Recht), which regulates the relations between a citizen/person and the state or two bodies of the state (including criminal law
) and the private law
(Privatrecht) which regulates the relations between two people or companies and the criminal law.
, derived from the Salic Law
of the Salian Franks and other tribes, was common. With the arrival of the Renaissance
, Roman law again began to play a strong role, and later on legal scholars known as the Pandectists
revived the formalities of Roman law as set by Justinian in the Corpus iuris civilis. It became common law (Gemeines Recht) in large parts of the German-speaking world and prevailed far into the 19th century. As the Holy Roman Empire
was composed of countless little territorial entities, the laws varied very much, according to local traditions and religions. These laws were codified in about local 3000 Weistümer (also called Holtinge or Dingrodel), collections of rural laws.
Only in relation to the Imperial superior Court of Justice, the Reichskammergericht, there existed codes of procedure. In addition to these the Corpus Iuris Canonici, the source of the better organized ecclesiastical judicature and the old Corpus Iuris Civilis. Both bodies of law were central part of the education of jurists and therefore generally known among them. So these regulations were used in local procedures as well.
Prussia
made an effort to bring in an all-new set of laws with the Allgemeines Landrecht für die preußischen Staaten (General National Law for the Prussian States) a system of codification, containing laws in relation to the whole spectrum of legal divisions, in the 18th century which, had a great influence on later works.
After the French July Revolution
of 1830, revolutionary ideas of the French Revolution
and Napoleon's laws as the Code Civil the Code Pénale and the Code d´ Instruction Criminelle strongly influenced the German legal tradition, especially in the Grand Duchy of Baden
, which sometimes only translated codifications of France for its own use.
With the forming of the Deutsches Reich
in 1871, a great wave of legal standardization set on, beginning with criminal law and procedural law and culminating in the Bürgerliches Gesetzbuch
(Book of Civil Law) after over twenty years of creative process. Important parts of German legislation still contain regulations of these laws. However, the various states always maintained their own laws to an extent and, in modern federal Germany, still do.
In 1919 in Weimar the Weimarer Verfassung (Weimar Constitution
) was created: the first democratic constitution of Germany. This was a very liberal and democratic constitution but it did not contain any ethical or political base. It allowed unlimited changes, the only requirement of any legal decision was a formally correct decision of the appropriate legal institution.
This ultimate democratic legal constitution allowed Hitler to change the whole form of government
according to his wishes. The main crimes of National socialism were in form absolutely legal, because the Nazi-dominated Reichstag made the necessary decisions. The Nazis understood law as the execution of the Will of the Führer. Jewish and critical jurists were eliminated, a blood letting, that later could not be made up for, because some of the best jurists,and especially lawyers, were Jews. Many others collaborated with the government. This happened because of adherence to Hitler or in the hope of career advancement, because nobody was forced to participate in political relevant areas.
After the war, the two newly emerged German states generated two different legal systems.
The socialist–communist East Germany tried to install new laws strongly influenced by communist and socialist ideology.
The democratic state of West Germany
built on existing law. Most of the legal changes of the National socialism were reversed, especially those with ethical criminal content. A new feature was the treatment of the constitution. This constitution was intended avoid the mistakes of the Weimar Constitution. With the reunification of the two states, West German law was set in force for the most part. A fairly recent development is the influence of European law which aims to harmonize laws in the various states of the European Union
, so that a lot of the legal developments are taken out of the hand of the federal government and are decided in Brussels
instead, where Germany has its own influence on the process along with the other members. Still German law is strongly influenced by federalism, and the individual states (Länder) each have their own responsibilities and particular laws, which at times is somewhat inefficient, but on other occasions takes care of regional specialities.
German legal tradition has in turn influenced many other countries. Just to name a few, the legal systems of Japan
, the Republic of Korea, United States of America and the Peoples Republic of China are to some extent based on German law.
) and a public authority of a state (Land
).
Public law was formerly based on the so-called "Über-Unterordnungs-Verhältnis" ("superiority inferiority relationship"). That means that a public authority may define what is to be done, without the consent of the citizen. (E.g., if the authority orders a citizen to pay taxes, the citizen has to pay, even without an agreement.) In return, the authority has to abide by the law and may only order, if empowered by a law.
The newer and now most acknowledged theory to determine, whether a regulation is public or civil law, is the "modifizierte Subjektstheorie" (modified theory of subjects). A codified regulation is public law, if at least one of the subjects is part of the state ("Der Staat" as is meant legislative, executive and judiciary) or is legally empowered to act on behalf of any part of the state. This Theory was necessary, because the Theory of "Über-Unterordnungs-Verhältnis" failed in certain situations, e.g.: A parent is legally superior to a minor. The minor cannot sign any contract without a parents consent. Following the old theory, this would be a case of "Überordnung", which would qualify these regulations as public law. The newer theory qualifies these regulations as private law, because the parents are superior, but they are not part of the state nor acting on behalf of any.
A subject in the sense of the Modifizierte Subjektstheorie is the addressee, that might be entitled or obligated to do or to forbear something; e.g.: Tax Laws entitle the state to collect taxes, criminal law entitles the state to imprison criminals and also obligates the state to resolve crimes.
The constitutional law (Verfassungsrecht) deals, of course, mostly with Germany's constitution and the rights and duties of the various institutions. A major part are the Civil rights
which are first in the basic law (Grundgesetz) and from which everything else derives. As usual in western democracies, the three powers are separated: the executive is taken care of by the government, the judicative by the courts and judges, and the legislative is managed by the federal and state parliaments. The most important principles, apart from that, are Democracy
, Federalism
and Rechtsstaat
sprinzip, meaning that the whole of the state must be based on laws. These parts of the Grundgesetz are forbidden to be changed.
Decisions may be made according to the definition of these regulations, but the essential content has to be unaffected. The highest authority in constitutional law, and to some extent in German law as a whole, is the Constitutional Court (Bundesverfassungsgericht) The Bundesverfassungsgericht is no Supreme Court. It is not a court of last instance. Its only purpose is the protection of the constitution, by control of the actions of government, judicative and legislative according to constitutional procedures and the ensuring of constitutional rights and duties. Here, the various parts of the state can dispute about the extent of their authority, but it is also the place to appeal to when a citizen feels that he is being deprived of his civil rights.
This particular matter takes up a lot of the court's work and often reshapes the legal process itself if the law finds that a certain law does in fact interfere with civil rights. Decisions of other courts are varied only with regard to violations of the constitution. Other mistakes are not relevant. Again, European law has a certain influence here as the Grundgesetz is no longer the sole source of law, instead it is joined by the treaties and laws of the European Union. Apart from the constitution of the Federal Republic, each state (Land) has its own constitution (e.g. see Constitution of Hamburg
) and, necessarily, its own constitutional law and court. Nonetheless the Grundgesetz and the Bundesverfassungsgericht are appropriate to actions of the states (Länder) and their branches.
. It covers most kinds of legal relations between the state and the citizens, but also between different bodies and/or levels of government with the exception of constitutional law, but not those legal relations, when the state closes contracts like any other private citizen. The highest administrative court for most matters is the Bundesverwaltungsgericht (Federal Administrative Court). There are federal courts with special jurisdiction in the fields of social security law (Bundessozialgericht) and tax law
(Bundesfinanzhof).
which originates in the Reichsstrafgesetzbuch. No one under 14 years old is held responsible for crimes at court, and for people under the age of 18 and in case of missing maturity under the age of 21 there are special courts and some adjustments to the criminal law as well. In court, a prosecutor (Staatsanwalt, a civil servant) enforces the prosecution, and the defendant can (in many cases has to) choose a lawyer to defend him. The office of the prosecutor (Staatsanwaltschaft), together with the police forces, handle the inquiries in the case at hand, yet they are no party of the process and are supposed to be as objective as possible. The Judgment is passed out by a judge or in higher courts a team of judges, of which in several cases two are ordinary citizens (Schöffen)- German law does not know juries. Sentences stretch from fines to life imprisonment, which is usually open to appeal after 15 or more years because of constitutional reasons. The actual death penalty is explicitly forbidden by the constitution. Extremely dangerous persons can be turned over to psychiatric treatment or have to stay in prison as long as necessary (which can mean for the rest of their lives)(Sicherungsverwahrung) in addition to their punishment.
(Privatrecht) rules the relations between two private legal entities (for example a buyer
and a seller, an employer and an employee, a tenant
and a landlord
) or two entities that act on the same level as private persons (an authority buys its pencils from a private company). In contrast, whenever a state agency exercises official power, private law is not to be applied.
(Bürgerliches Recht) determines the relationships among persons and/or legal entities, i.e. those who do not fall into a special category (like merchants or employees). The most important reference of this area is the Civil Law Book (Bürgerliches Gesetzbuch
, BGB), which consists of 5 major parts: the common/general part, the law of obligations
, property law
, family law
and law of succession.
The most important principle of the Burgars is Privatautonomie, which states that all citizens have the right to rule their own affairs without interference from the state, especially in the disposal of their property according to their will and the creation of contract
s with partners and with the contents they like. Because of this, most of the rules in the BGB are only supplied in case that the partners of a contract did not make an agreement on that special point themselves. However, in the last few years there has been a tendency towards more regulation, especially between a professional and a consumer, declaring contracts invalid which place an undue burden on one party. Other groups of people that enjoy protection are minors and people in a weak economic position.
The most important creation of the BGB is the Principle of Abstraction (Abstraktionsprinzip). According to this principle, contracts only create an obligation, but there are no actual changes to the legal correlation concerning the object of the contract. To create these changes by fulfillment of the obligation, a different contract, regulated in property law is necessary. By this way, the sale of a burger in exchange for one Euro
means three different contracts. One contract concluded by coincident declarations of intent, where the parties agree to buy one burger to the payment one Euro and to create the obligation of the seller, to transfer the burger and to provide property on the burger, to create the obligation of the buyer to transfer the Euro and to provide property on the Euro and finally to create a dependence between these two obligations. The second contract consists of the transfer of the burger and the coincident declarations of intent to provide property by doing so. The third contract consists of the transfer of the Euro and the coincident declarations of intent to provide property by doing so. This doesn't mean that contracts in Germany are more complicated to the people involved. Especially the contracts of everyday life do not differ with those in other countries in their outer appearance. For instance, if someone buys a newspaper at a newsstand without saying one single word to the seller, all the three contracts which are mentioned above are fulfilled by conclusive demeanor.
In court, both parties have the same rights and duties. Each side can (in higher courts must) require the services of one or several attorneys. They present facts and evidence for their version of the case of their own accord and without the help of the judge, who then makes his judgement independently. With exception of the social law some parts of the employment law the costs of all the participants of the lawsuit (including the costs of the opponent) have to be paid by the loser.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
, though many of the most important laws as for example most regulations of the civil code (Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
, or BGB) were developed prior to the 1949 constitution. It is composed of public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
(öffentliches Recht), which regulates the relations between a citizen/person and the state or two bodies of the state (including criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
) and the private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
(Privatrecht) which regulates the relations between two people or companies and the criminal law.
History
German law has been subject to many influences over the centuries. Until Medieval times the Early Germanic LawEarly Germanic law
Several Latin law codes of the Germanic peoples written in the Early Middle Ages survive, dating to between the 5th and 9th centuries...
, derived from the Salic Law
Salic law
Salic law was a body of traditional law codified for governing the Salian Franks in the early Middle Ages during the reign of King Clovis I in the 6th century...
of the Salian Franks and other tribes, was common. With the arrival of the Renaissance
Renaissance
The Renaissance was a cultural movement that spanned roughly the 14th to the 17th century, beginning in Italy in the Late Middle Ages and later spreading to the rest of Europe. The term is also used more loosely to refer to the historical era, but since the changes of the Renaissance were not...
, Roman law again began to play a strong role, and later on legal scholars known as the Pandectists
Pandectists
Pandectists were German university legal scholars in the early 19th century who studied and taught Roman law as a model of what they called Konstruktionsjurisprudenz as codified in the Pandects of Justinian ....
revived the formalities of Roman law as set by Justinian in the Corpus iuris civilis. It became common law (Gemeines Recht) in large parts of the German-speaking world and prevailed far into the 19th century. As the Holy Roman Empire
Holy Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
was composed of countless little territorial entities, the laws varied very much, according to local traditions and religions. These laws were codified in about local 3000 Weistümer (also called Holtinge or Dingrodel), collections of rural laws.
Only in relation to the Imperial superior Court of Justice, the Reichskammergericht, there existed codes of procedure. In addition to these the Corpus Iuris Canonici, the source of the better organized ecclesiastical judicature and the old Corpus Iuris Civilis. Both bodies of law were central part of the education of jurists and therefore generally known among them. So these regulations were used in local procedures as well.
Prussia
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
made an effort to bring in an all-new set of laws with the Allgemeines Landrecht für die preußischen Staaten (General National Law for the Prussian States) a system of codification, containing laws in relation to the whole spectrum of legal divisions, in the 18th century which, had a great influence on later works.
After the French July Revolution
July Revolution
The French Revolution of 1830, also known as the July Revolution or in French, saw the overthrow of King Charles X of France, the French Bourbon monarch, and the ascent of his cousin Louis-Philippe, Duke of Orléans, who himself, after 18 precarious years on the throne, would in turn be overthrown...
of 1830, revolutionary ideas of the French Revolution
French Revolution
The French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...
and Napoleon's laws as the Code Civil the Code Pénale and the Code d´ Instruction Criminelle strongly influenced the German legal tradition, especially in the Grand Duchy of Baden
Baden
Baden is a historical state on the east bank of the Rhine in the southwest of Germany, now the western part of the Baden-Württemberg of Germany....
, which sometimes only translated codifications of France for its own use.
With the forming of the Deutsches Reich
Deutsches Reich
Deutsches Reich was the official name for Germany from 1871 to 1945 in the German language.As the literal English translation "German Empire" denotes a monarchy, the term is used only in reference to Germany prior to the fall of the monarchies at the end of World War I in 1918...
in 1871, a great wave of legal standardization set on, beginning with criminal law and procedural law and culminating in the Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
(Book of Civil Law) after over twenty years of creative process. Important parts of German legislation still contain regulations of these laws. However, the various states always maintained their own laws to an extent and, in modern federal Germany, still do.
In 1919 in Weimar the Weimarer Verfassung (Weimar Constitution
Weimar constitution
The Constitution of the German Reich , usually known as the Weimar Constitution was the constitution that governed Germany during the Weimar Republic...
) was created: the first democratic constitution of Germany. This was a very liberal and democratic constitution but it did not contain any ethical or political base. It allowed unlimited changes, the only requirement of any legal decision was a formally correct decision of the appropriate legal institution.
This ultimate democratic legal constitution allowed Hitler to change the whole form of government
Form of government
A form of government, or form of state governance, refers to the set of political institutions by which a government of a state is organized. Synonyms include "regime type" and "system of government".-Empirical and conceptual problems:...
according to his wishes. The main crimes of National socialism were in form absolutely legal, because the Nazi-dominated Reichstag made the necessary decisions. The Nazis understood law as the execution of the Will of the Führer. Jewish and critical jurists were eliminated, a blood letting, that later could not be made up for, because some of the best jurists,and especially lawyers, were Jews. Many others collaborated with the government. This happened because of adherence to Hitler or in the hope of career advancement, because nobody was forced to participate in political relevant areas.
After the war, the two newly emerged German states generated two different legal systems.
The socialist–communist East Germany tried to install new laws strongly influenced by communist and socialist ideology.
The democratic state of West Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
built on existing law. Most of the legal changes of the National socialism were reversed, especially those with ethical criminal content. A new feature was the treatment of the constitution. This constitution was intended avoid the mistakes of the Weimar Constitution. With the reunification of the two states, West German law was set in force for the most part. A fairly recent development is the influence of European law which aims to harmonize laws in the various states of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, so that a lot of the legal developments are taken out of the hand of the federal government and are decided in Brussels
Brussels
Brussels , officially the Brussels Region or Brussels-Capital Region , is the capital of Belgium and the de facto capital of the European Union...
instead, where Germany has its own influence on the process along with the other members. Still German law is strongly influenced by federalism, and the individual states (Länder) each have their own responsibilities and particular laws, which at times is somewhat inefficient, but on other occasions takes care of regional specialities.
German legal tradition has in turn influenced many other countries. Just to name a few, the legal systems of Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, the Republic of Korea, United States of America and the Peoples Republic of China are to some extent based on German law.
Public law
Public law (Öffentliches Recht) rules the relations between a citizen or private person and an official entity or between two official entities. E.g., a law which determines taxes is always part of the public law, just like the relations between a public authority of the Federation (BundGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
) and a public authority of a state (Land
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
).
Public law was formerly based on the so-called "Über-Unterordnungs-Verhältnis" ("superiority inferiority relationship"). That means that a public authority may define what is to be done, without the consent of the citizen. (E.g., if the authority orders a citizen to pay taxes, the citizen has to pay, even without an agreement.) In return, the authority has to abide by the law and may only order, if empowered by a law.
The newer and now most acknowledged theory to determine, whether a regulation is public or civil law, is the "modifizierte Subjektstheorie" (modified theory of subjects). A codified regulation is public law, if at least one of the subjects is part of the state ("Der Staat" as is meant legislative, executive and judiciary) or is legally empowered to act on behalf of any part of the state. This Theory was necessary, because the Theory of "Über-Unterordnungs-Verhältnis" failed in certain situations, e.g.: A parent is legally superior to a minor. The minor cannot sign any contract without a parents consent. Following the old theory, this would be a case of "Überordnung", which would qualify these regulations as public law. The newer theory qualifies these regulations as private law, because the parents are superior, but they are not part of the state nor acting on behalf of any.
A subject in the sense of the Modifizierte Subjektstheorie is the addressee, that might be entitled or obligated to do or to forbear something; e.g.: Tax Laws entitle the state to collect taxes, criminal law entitles the state to imprison criminals and also obligates the state to resolve crimes.
Constitutional law
The constitution (Verfassung) is called the Grundgesetz (Basic Law) because the drafters saw this legal "corpus" as a provisional document, to be replaced by the constitution of a future united Germany. In reaction to National Socialism, the Grundgesetz shows mistrust towards its own people and its own government and was created as a reaction to the problems of the Weimar Constitution. Where the Weimar Constitution was weak, this constitution, the Basic Law was strong, where the Weimar Constitution left every decision to the free will of the legislator, the basic law defines the boundaries that nobody is allowed to cross. Wherever possible, powers are limited and controlled.The constitutional law (Verfassungsrecht) deals, of course, mostly with Germany's constitution and the rights and duties of the various institutions. A major part are the Civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
which are first in the basic law (Grundgesetz) and from which everything else derives. As usual in western democracies, the three powers are separated: the executive is taken care of by the government, the judicative by the courts and judges, and the legislative is managed by the federal and state parliaments. The most important principles, apart from that, are Democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
, Federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
and Rechtsstaat
Rechtsstaat
Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "legal state", "state of law", "state of justice", or "state of rights"...
sprinzip, meaning that the whole of the state must be based on laws. These parts of the Grundgesetz are forbidden to be changed.
Decisions may be made according to the definition of these regulations, but the essential content has to be unaffected. The highest authority in constitutional law, and to some extent in German law as a whole, is the Constitutional Court (Bundesverfassungsgericht) The Bundesverfassungsgericht is no Supreme Court. It is not a court of last instance. Its only purpose is the protection of the constitution, by control of the actions of government, judicative and legislative according to constitutional procedures and the ensuring of constitutional rights and duties. Here, the various parts of the state can dispute about the extent of their authority, but it is also the place to appeal to when a citizen feels that he is being deprived of his civil rights.
This particular matter takes up a lot of the court's work and often reshapes the legal process itself if the law finds that a certain law does in fact interfere with civil rights. Decisions of other courts are varied only with regard to violations of the constitution. Other mistakes are not relevant. Again, European law has a certain influence here as the Grundgesetz is no longer the sole source of law, instead it is joined by the treaties and laws of the European Union. Apart from the constitution of the Federal Republic, each state (Land) has its own constitution (e.g. see Constitution of Hamburg
Constitution of Hamburg
The Constitution of the Free and Hanseatic city of Hamburg is the basic governing document of the German city-state of Hamburg. It was approved on 6 June 1952...
) and, necessarily, its own constitutional law and court. Nonetheless the Grundgesetz and the Bundesverfassungsgericht are appropriate to actions of the states (Länder) and their branches.
Administrative law
The administrative law is the law of the ExecutiveExecutive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
. It covers most kinds of legal relations between the state and the citizens, but also between different bodies and/or levels of government with the exception of constitutional law, but not those legal relations, when the state closes contracts like any other private citizen. The highest administrative court for most matters is the Bundesverwaltungsgericht (Federal Administrative Court). There are federal courts with special jurisdiction in the fields of social security law (Bundessozialgericht) and tax law
Tax law
Tax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes.-Major issues:Primary taxation issues facing the governments world over include;* taxes on income and wealth...
(Bundesfinanzhof).
Administrative civil law
The executive may act on grounds of the "Bürgerliches Gesetzbuch" (BGB, "civil code"). However, if a governmental office acts on ground of the BGB (e. g.: is buying a pencil), this office is bound to the Grundgesetz (and other laws) to prevent unequal treatment of citizens and businesses.Criminal law
Criminal law in the narrow sense of the word is a matter of Federal law in Germany. Main source of law here is the StrafgesetzbuchStrafgesetzbuch
Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
which originates in the Reichsstrafgesetzbuch. No one under 14 years old is held responsible for crimes at court, and for people under the age of 18 and in case of missing maturity under the age of 21 there are special courts and some adjustments to the criminal law as well. In court, a prosecutor (Staatsanwalt, a civil servant) enforces the prosecution, and the defendant can (in many cases has to) choose a lawyer to defend him. The office of the prosecutor (Staatsanwaltschaft), together with the police forces, handle the inquiries in the case at hand, yet they are no party of the process and are supposed to be as objective as possible. The Judgment is passed out by a judge or in higher courts a team of judges, of which in several cases two are ordinary citizens (Schöffen)- German law does not know juries. Sentences stretch from fines to life imprisonment, which is usually open to appeal after 15 or more years because of constitutional reasons. The actual death penalty is explicitly forbidden by the constitution. Extremely dangerous persons can be turned over to psychiatric treatment or have to stay in prison as long as necessary (which can mean for the rest of their lives)(Sicherungsverwahrung) in addition to their punishment.
Private law
Private lawPrivate law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
(Privatrecht) rules the relations between two private legal entities (for example a buyer
Buyer
When someone gets characterised by their role as buyer of certain assets, the term "buyer" gets new meaning:A "buyer" or merchandiser is a person who purchases finished goods, typically for resale, for a firm, government, or organization...
and a seller, an employer and an employee, a tenant
Leasehold estate
A leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
and a landlord
Landlord
A landlord is the owner of a house, apartment, condominium, or real estate which is rented or leased to an individual or business, who is called a tenant . When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner...
) or two entities that act on the same level as private persons (an authority buys its pencils from a private company). In contrast, whenever a state agency exercises official power, private law is not to be applied.
Civil law
Civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
(Bürgerliches Recht) determines the relationships among persons and/or legal entities, i.e. those who do not fall into a special category (like merchants or employees). The most important reference of this area is the Civil Law Book (Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
, BGB), which consists of 5 major parts: the common/general part, the law of obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
, property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
and law of succession.
The most important principle of the Burgars is Privatautonomie, which states that all citizens have the right to rule their own affairs without interference from the state, especially in the disposal of their property according to their will and the creation of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s with partners and with the contents they like. Because of this, most of the rules in the BGB are only supplied in case that the partners of a contract did not make an agreement on that special point themselves. However, in the last few years there has been a tendency towards more regulation, especially between a professional and a consumer, declaring contracts invalid which place an undue burden on one party. Other groups of people that enjoy protection are minors and people in a weak economic position.
The most important creation of the BGB is the Principle of Abstraction (Abstraktionsprinzip). According to this principle, contracts only create an obligation, but there are no actual changes to the legal correlation concerning the object of the contract. To create these changes by fulfillment of the obligation, a different contract, regulated in property law is necessary. By this way, the sale of a burger in exchange for one Euro
Euro
The euro is the official currency of the eurozone: 17 of the 27 member states of the European Union. It is also the currency used by the Institutions of the European Union. The eurozone consists of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,...
means three different contracts. One contract concluded by coincident declarations of intent, where the parties agree to buy one burger to the payment one Euro and to create the obligation of the seller, to transfer the burger and to provide property on the burger, to create the obligation of the buyer to transfer the Euro and to provide property on the Euro and finally to create a dependence between these two obligations. The second contract consists of the transfer of the burger and the coincident declarations of intent to provide property by doing so. The third contract consists of the transfer of the Euro and the coincident declarations of intent to provide property by doing so. This doesn't mean that contracts in Germany are more complicated to the people involved. Especially the contracts of everyday life do not differ with those in other countries in their outer appearance. For instance, if someone buys a newspaper at a newsstand without saying one single word to the seller, all the three contracts which are mentioned above are fulfilled by conclusive demeanor.
Procedural law
The procedural system of Germany is based on a highly active role of the judge or the judges. In all branches of jurisprudence the judge takes evidence himself, only assisted by the parties or their lawyers, although in some branches the court is limited to proof, referred by the parties.In court, both parties have the same rights and duties. Each side can (in higher courts must) require the services of one or several attorneys. They present facts and evidence for their version of the case of their own accord and without the help of the judge, who then makes his judgement independently. With exception of the social law some parts of the employment law the costs of all the participants of the lawsuit (including the costs of the opponent) have to be paid by the loser.
See also
- Judiciary of GermanyJudiciary of GermanyThe Judiciary of Germany is based on the concept of the , in which the exercise of governmental power is constrained by law. Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany which are responsible for the lower levels...
- Germany's judicial system - Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- Japanese lawJapanese law-Historical Developments:Pre-Modern History The early law of Japan was heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were transplanted and adopted by the Japanese, the...
, which is based heavily on German civil law
Articles about specific German laws
- Alcohol laws in Germany
- Grundgesetz
- Bürgerliches GesetzbuchBürgerliches GesetzbuchThe Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
- StrafgesetzbuchStrafgesetzbuchStrafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
- Strafgesetzbuch § 86aStrafgesetzbuch § 86aThe German Strafgesetzbuch in § 86a outlaws "use of symbols of unconstitutional organisations". This concerns Nazi symbolism in particular and is part of the denazification efforts following the fall of the Third Reich....
which bans "use of symbols of unconstitutional organisations" - such as Nazi salutes. - LuftsicherheitsgesetzLuftsicherheitsgesetzThe Luftsicherheitsgesetz is a German law created in response to the September 11, 2001 attacks which came into force on 2005-01-15. § 14 would have granted the Bundeswehr permission to use weapons against commercial airliners once their designation as a weapon by highjackers had become apparent...
- VölkerstrafgesetzbuchVölkerstrafgesetzbuchThe Völkerstrafgesetzbuch or VStGB is the German law that regulates the crimes against public international law. It was created to bring the German criminal law into accordance with the Rome Statute of the International Criminal Court. It was announced on 26 June 2002 and became law 30 June 2002...
External links
- Introduction into the German law system - History of German law, Organisation of the state, Sections of law, Sources of German law, Jurisdiction, Professions of law
- Centre for German Legal Information - the gateway to German law in English
- German Law Archive
- Penal Code of the Federal Republic of Germany Almost the entire federal law code online. Semiofficial, provided by the Federal Ministry of JusticeFederal Ministry of Justice (Germany)The Federal Ministry of Justice is a federal ministry in Germany.Under the federal system of Germany, individual states are most responsible for the administration of justice and the application of penalties. The Federal Ministry of Justice devotes itself to creating and changing law in the...
in cooperation with a federally-controlled commercial legal information service/print publisher.- Also provided are English translations of AO Fiscal Code, BGB Civil Code, EGBGB Introductory Act to the Civil Code (IACC), GVG Courts Constitution Act, JGG Youth Courts Law, StGB Criminal Code and StPO Code of Criminal Procedure (as of November 2009).