Law of Germany

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The modern German legal system is a system of law which is grounded in part on the principles laid out by the Basic Law for the Federal Republic of Germany, though much of the civil code (Bürgerliches Gesetzbuch, or BGB) was developed prior to the 1949 constitution.

It is composed of the private law (Privatrecht), which regulates the relations between two people or companies, and the public law (öffentliches Recht), which regulates the relations between a citizen/person and the state (including criminal law).

Contents 1 History 2 Private law 2.1 Civil law 3 Public law 3.1 Constitutional law 3.2 Criminal law 4 See also 5 External links

[edit] History

German law was subject to many influences over the centuries. Roman law was the first civilized jurisprudence within the borders of German influence and prevailed in the parts of Germany belonging to the Roman Empire until the end of Roman dominion. In Medieval times, derivatives of Frankish law were 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. Prussia made an effort of installing an all-new law with the Preußisches Allgemeines Landrecht in the 18th century which, although never actually finished, had - and has - a great influence on later works. After the French Revolution, revolutionary ideas and Napoleon's Code Civil strongly influenced the German legal tradition.

With the forming of the Deutsches Reich in 1871, a great wave of legal standartization set on, beginning with criminal law and processual law and culminating in the Bürgerliches Gesetzbuch (Book of Civil Law) after over twenty years of creative process. However, the various states always maintained their own laws to an extent and, in modern federal Germany, still do. This came to an end during the Nazi dominion when law was for the most part set by the Führer, the party and the judges and legal scientists loyal to them, which created a totalitarian law with strong elements of racism and anti-semitism. After the war, the two newly emerged German states tried to pick up the pieces in their own way: the democratic West Germany continued the legal traditions of the first republic, while the socialist/communist East Germany tried to install new laws strongly influenced by communist and socialist ideology. With the reunification of the two parts, 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 and the Peoples Republic of China are to some extent based on German law.

[edit] Private law

Private law (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 applied.

[edit] Civil law

Main article: Bürgerliches Recht

Civil law (Bürgerliches Recht) determines the relationships between 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).

The most important principle of the BGB 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 contracts 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.

In court, both parties have the same rights and duties. Each side can 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. In higher courts, there are team of judges, in some cases there are common people among them to keep things down to earth. There is no jury.

[edit] Public law

Public law rules the relations between a citizen or private person and an official entity or between two official entities. E.g., a laws that determines taxes is always part of the public law, just like the relations between a public authority of the Federation (Bund) and a public authority of a state (Land).

Public law is normally based on the so-called "Über-Unterordnungs-Verhältnis" ("superiority inferiority relationship"). That means that a public authority may say 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. If the citizen thinks that the authority's action is illegal, he is allowed to take legal action at a court.

[edit] Constitutional law

The constitutional law (Verfassungsrecht) deals, of course, mostly with Germany's constitution and the rights and duties of the various institutions. A strong 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: executive is taken care of by the government, 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 Rechtsstaatsprinzip, meaning that the whole of the state must be based on laws.

Highest authority in constitutional law, and to some extent in German law as a whole, is the Constututional Court (Bundesverfassungsgericht) - Germany does not have a High Court like other countries. 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 courts work and often reshapes the legal process itself if the law finds that a certain law does interfere with the civil rights.

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 constitutions of the Federal Republic, each state has its own constitution and, necessarily, its own constitutional law and court.

[edit] 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 Strafgesetzbuch which originates in the penal law book of first Prussia and then the North German Federation. No one under 14 years old is held responsible for crimes at court, and for people under the age of 21 (and sometimes even above that) 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 most 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 Judgement is passed out by a judge or a team of judges in higher courts, some of which are usually ordinary citizens - German law does not know juries. Sentences stretch from fines to life imprisonment, which is open to appeal after (at the most) 15 years because of constitutional reasons, as a life sentence can be seen as a form of death penalty. The actual Death penalty is unknown and 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)(Sicherheitsverwahrung) in addition to their punishment.

[edit] See also

• Legal systems of the world
• Japanese law, which is based heavily on German civil law

[edit] External links

• German Law Archive
• Penal Code of the Federal Republic of Germany