January 7, 2018 | Author: Anonymous | Category: Social Science, Law, Constitutional Law
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Introduction to the German Legal System History Sources Institutions

First overview 

Germany is a civil law country

The main sources of law:

Basic Law (Grundgesetz) and the states´ constitutions

Federal Statutes, e.g. Civil Code (BGB) or Criminal Code (StGB)

Customary law and judge-laws

Fundamental constitutional provisions of the Basic Law: 

Principle of democracy (Art. 20 (2) Grundgesetz)

Rule of law

Federal state principle (Art. 20 (1), 79 (3) Grundgesetz)

Principle of the social state (Sozialstaat)


The German Legal History (I)

The way to political and legal unification (Germany at the end of 18th century)


The German Legal History (II) The way to political and legal unification First codifications

Free cities and numerous princedoms which partially had invented codified law (Bavarian Code, 1756 and Prussian Code, 1794) Napoleon invented even earlier the French Code Civil (1804) in those german princedoms, that had already been under french protection 

The admiration of the written civil law in France led to longing for a national codification of civil law Dispute about codification of civil law in national civil code arose, represented by Thibaut (1772 – 1840), who was member of the socalled School of Nature Law, and Savigny (1779 – 1861), the most famous member of the so-called Historical School of Law (with its offschoot Pandestic School)


The German Legal History (III) The way to political and legal unification

German Federation, that had been established to liberate the German states, defeated Napoleon and, afterwards, fell apart because of the rivalty of the most important federal states, Prussia and Austria Creation of loose association of German states and free cities (German Confederation) at the Congress of Vienna (1815) – initially 41 and ultimately (1871) 33 members


The German Legal History (IV) The way to political and legal unification Codification and Unification

Revolution of 1848 – first freely elected National Assembly (so-called Paulskirchenversammlung)

German Empire (1871 - 1918) was established after Prussia defeated Austria (1866) and France (1870/71) – political unification

drafted – as a further evidence of the growing will to unification – a constitution, that, due to its rejection by the prussian king, never came into force

Commercial requirements dictated the move to legal codification on a national level

Many statutes – that, of course with various amendments and modifications, are still applicable today – were enacted during the period before World War I, e.g.: 

1871 - Criminal Code (Strafgesetzbuch)

1877 – Code of Criminal Procedure (Strafprozessordnung) and Code of Civil Procedure (Zivilprozessordnung)

1879 – Commercial Code (Handelsgesetzbuch)

1900 – Civil Code (Bürgerliches Gesetzbuch)

The highly detailed, technical and clearly defined codes implied that courts and the state administration were from then on expected merely to apply and not to interpret them


The German Legal History (V)

The way to political and legal unification


The German Legal History (VI) The 20th century

The Weimar Republic (1919 – 1933) – as successor of the German Empire – was established after the First World War 

First Constitution with clear principles of republicanism and democracy as well as a catalogue of basic rights, that were, however, expressed merely in terms of principles, not as inviolable rights Although the Weimar Republic was a federal state, the state power was fairly centered on the Federal President (Reichspräsident), who took over the position of the former emperor; the Reichspräsident was enabled to dissolve the parliament and announce new elections, whereas in the meantime he governed the country The necessities related to increasing social problems (e.g. depression, hyperinflation) in the 1920s and 30s induced a change in the judiciary´s attitude not to interpret, but to merely execute the statutes, especially in regard of the general paragraphs of the Civil Code 

Judge found law (Richterrecht) helped to outset the harshness of contracts and to push customary law further to the background

Reform of labour law and setting of a seperate hierarchy of labour courts (Specialisation of the Judiciary)


The German Legal History (VII) The 20th century

During the course of the Third Reich (1933 – 1945) – the period when Hitler and his National Socialists Party (Nazis) governed the country –, law was conceived no longer in terms of individual rights but only as the rights of the people determined by the state 

Main changes in criminal law, administrative law and constitutional law

Law and justice as a cruel weapon in the state's hands against all parts of society it found undesirable

Thorough centralization of all state power to Hitler and, thus, complete unification 

No real federal elements any more


The German Legal History (VIII) The 20th century

In the period following the Second World War (1945 – 1949), the legal system was, rather than entirely reshaped, adjusted as corresponding to the following principles: 

All Nazi laws were repealed and all other laws were subject to the no discrimation rule, which was a rule of interpretation to the courts that required that no rule of law should cause injustice or discrimination by favouring the Nazis or discrimination against any others

In 1949 the Grundgesetz, the written constitution of the Western German state, the German Federal Republic, was enacted 

Emphasis was laid onto the prevention not to repeat failed provisions of the Weimar Constitution, thus: 

Basic rights are stated as unavoidable rights The Federal President (Bundespräsident) plays only a nominal role in german government; he is not enabled to dissolve the parliament on his own any more (approval of the Federal Chancellor ( Bundeskanzler) and, somehow, of the Federal Parliament (Bundestag) itself is needed)

The Bundestag is the most important democratic institution

Very powerful Constitutional Court (Bundesverfassungsgericht) as “guard of the Grundgesetz” that is able to declare every act of the other federal institutions as null and void


The German Legal History (IX) The 20th century

Instead of “Constitution”, the name Grundgesetz was chosen to express its provisional character, because of the division of Germany in 1949 in two separate states It should have been replaced by a new constitution after the reunification, that was expected or hoped for Due to the fact, that the east-german GDR (German Democratic Republic) completely acceded to the west-german FRG (Federal Republic of Germany) in 1990 the name Grundgesetz was kept

Even though the Grundgesetz itself stated the necessity to enforce a new constitution, the peoples´ confidence and faith in it forbade such action

Just few amendments to the Grundgesetz were inserted then


The German Legal History (X) The 20th century


The German Legal History (XI)

Reunification of Germany (1990) – GDR acceded to the FRG


The German Legal Sources (I) Controlling principles

Which legal source applies to an individual case depends on the following controlling principles: 

Supremacy of application of European Law over German Law, in particular of the European Treaties (primary community legislation) and secondary community legislation (acc. to Art. 249 EC Treaty) Within German Law 

priority of the federal law over state (Bundesland) law (Acc. to Art. 31 GG)

Higher-ranking provision prevails a lower-ranking one

Among legal provisions of equal rank: 

Later provisions prevail over older ones (lex posterior derogat lex priori)

More specific provisions prevail over more general ones (lex specialis derogat legi generali)


The German Legal Sources (II) – Hierarchie of the legal provisions

EC Law

Federal Law

State Law


The German Legal Sources (III) – Hierarchie of the legal provisions

EC Law

Constitution (Basic Law)

General Provisions of International Law

Ordinary statutes


Administrative rules or orders

Customary law and judicial law-making


The German Legal Sources (IV)

The fundamental principles and contents of the Basic Law 

Principle of democracy (Art. 20 (2) GG)

Rule of law

Federal state principle (Art. 20 (1), 79 (3) GG)

Principle of a social state

Catalogue of basic subjective rights (acc. Art. 1 – 19 GG)

Alterations of the Grundgesetz demand a two-third majority of the members of the Bundestag as well as the Bundesrat (acc. Art. 79 (2) GG), whereas the above mentioned fundamental constitutional principles are not subject to any alteration (acc. Art. 79 (3) GG) 17

The German Legal Sources (V) Principle of Democracy

„All state authority is derived from the people“ (acc. Art. 20 (2) GG) 

In form of representative government, i.e. the people’s authority mainly is performed through elections; no significant elements of direct democracy

Other democratic elements are guaranteed by basic rights of democratic participation and other constitutional provisions, e.g., 

Free speech, press and opinion (acc. Art. 5 GG)

Freedom of assembly (acc. Art. 8 GG)

Freedom of association (acc. Art. 9 GG)

Political parties (acc. Art. 21 GG)

Election principles (acc. Art. 38 GG) – free, even. secret, direct and common elections


The German Legal Sources (VI) Rule of Law

Since not explained in a single provision, the Rule of Law is derived from several fundamental ones, e.g. Art. 23 and 28 GG

Supremacy of law within the state (core of the formal rule of law)

Parliament is bound by the constitution, especially by basic rights (acc. Art. 20 (3), 1 (3) GG)

Judiciary and executive are not only bound by acts of parliament but also by fundamental constitutional values, such as the basic rights, acc. Art. 1 (3) GG (substantial element of the rule of law)

Separation and mutual control of powers (acc. Art. 20 (2) 2 GG)

Guarantee of legal protection by the court (acc. Art. 19 (4) GG)

Procedural basic rights (acc. Art. 101 – 104 GG)

Principle of proprotionality


The German Legal Sources (VII)

Principles of the social state and the federal state 

Principle of the social state (Art.20 (1) and 28 (1) GG): 

No demand for a certain economical (e.g. Socialist) state form Supports the provisions of social laws and social welfare as correction of unfortunate effects of a market economy Principle does, however, not provide the individual with subjective rights

Principle of the federal state (Art. 20 (1) GG): 

Distribution of state power between federation and states Constitutional order of the states has to conform to the leading principles of the Basic Law (acc. Art. 28 (1) GG)

A subjective right on social welfare by the state is derived from the sancity and protection of the dignity of man (Art. 1 (1) GG)


The German Legal Institutions (I) Overview (I)

Federal legal institutions: (as stated in the Basic Law) 

Legislative  

State legal institutions: (as stated in the state constitutions) 

Federal Parliament (Bundestag) Federal Council (Bundesrat)

 

Federal Government (Bundesregierung)  

Federal Chancellor (Bundeskanzler) Federal Ministers (Bundesminister)

Federal President (Bundespräsident)

State Parliament (Landtag)

Executive 

Executive 


State Government (Landesregierung)  

Prime minister (Ministerpräsident) State secretaries (Landesminister)

Judiciary  

State Constitutional Court State courts

Judiciary  

Federal Constitutional Court (Bundesverfassungsgericht) Federal Courts 21

The German Legal Institutions (II) Checks and balances Federal Constitutional Court (Bundesverfassungsgericht)

Federal President (Bundespräsident)

Federal Chancellor (Bundeskanzler)

Federal Assembly (Bundesversammlung)

Federal Council (Bundesrat)

Federal Parliament (Bundestag)


The German Legal Institutions (III)

The Federal Legislation (acc. Art. 70 – 82 GG) Applicable Statute

Signature and Promulgation

In case of formal faults Formal review

Federal President

Federal Parliament Bundestag

Approval of absolute majority

Approval needed in stated cases only

Federal Council Bundesrat

Bill (Gesetzesentwurf)

Introduction of a bill

At least 5 % of the Federal Parliament (Bundestag)

Federal Government (Bundesregierung)

Absolute majority of the Federal Council (Bundesrat)


The German Legal Institutions (IV) The Federal Legislative

Federal Council (Bundesrat)

Federal Parliament (Bundestag)

Representatives are sent

Government A

Government B

Government C

State Parliament A

State Parliament B

State Parliament C



All citizens of the federal state

Citizens of state (Land) A

Citizens of state (Land) B

Citizens of state (Land) C


The German Legal Institutions (V) The Federal Executive

Federal Parliament (Bundestag)


Federal Chancellor (Bundeskanzler)

Proposal to the Federal President who appoints and releases the Ministers

Federal Minister (Bundesminister) A

Federal Administration A

Federal Minister (Bundesminister) B

Federal Administration B

Federal Minister (Bundesminister) C

Federal Administration C

Federal Minister (Bundesminister) D

Federal Administration D


The German Judiciary (I)

Principles in the ordering of the court system 

Specialization 

Different hierarchies of courts with their own specific jurisdiction have been established: 

Courts of ordinary or regular jurisdiction  

   

Civil matters Criminal matters

Administrative courts Labour courts Social courts Revenue or financial courts

The Bundesverfassungsgericht and the states´ constitutional courts neither represent any hierarchy nor are part of any

Decentralization 

Division between federal and state courts acc. to Art. 92 GG, which states that judicial power is exercised only by judiciary of the Bundesverfassungsgericht, the federal courts and the courts of the states

Acc. to Art. 95 GG at the head of each of the five named judicial branches, the Federation is responsible for the highest courts, the federal courts of last instance:     

Federal Federal Federal Federal Federal

Court of Justice (Bundesgerichtshof) Administrative Court (Bundesverwaltungsgericht) Labour Court (Bundesarbeitsgericht) Social Court (Bundessozialgericht) Tax Court (Bundesfinanzhof)

The states´ courts conform to the same court structure


The German Judiciary (II) Constitutional Courts

Federal Constitutional Court (Bundesverfassungsgericht)    

State institution, which is independent from other state organs and other courts (whereas the decisons are binding on all lower courts and government agencies) Consists of two senates of eight judges which have different jurisdictions Decisions are basically made on basis of simple majority (two-thirds majority e.g. required to forbid a political party) „ Guard of the Grundgesetz“, i.e.: 

Jurisdiction over all disputes concerning the authority and obligations of the various constitutional bodies arising under the Basic Law, the disputes between Federation and states and between states themselves

Can review the legislation of the federation and the states and can overrule legislation if found to be unconstitutional (yield that it is not entitled to conduct any alterations of the reviewed bill)

Upholds and protects basic rights and can hear directly complaints of individuals

Only state organ that can declare political parties unconstitutional (only on basis of two-thirds majority)

Control jurisdiction over questions decided by states´ constitutional courts

States´ constitutional courts


The German Judiciary (III)

Hierarchy of the ordinary jurisdiction Federal Court of Justice (Bundesgerichtshof)

Federal Court


Higher Regional Courts (Oberlandesgericht)

District Courts (Landgericht)

States courts

Local Courts (Amtsgericht)


The German Judiciary (IV)

Hierarchy of the administrative courts Federal Administrative Court (Bundesverwaltungsgericht)

Higher Administrative District Court (Oberverwaltungsgericht)


Federal Court

States courts Administrative Court (Verwaltungsgericht)


The German Judiciary (V)

Hierarchy of the labour, social and fiscal courts

Federal Labour Court (Bundesarbeitsgericht)

Federal Social Court (Bundessozialgericht)

Federal Fiscal Court (Bundesfinanzhof)

Federal Courts


States courts

Labour Court of Appeal (Landesarbeitsgericht)

Social Court of Appeal (Landessozialgericht)

Labour Court (Arbeitsgericht)

Social Court (Sozialgericht)

Tax Court (Finanzgericht)


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