German Law
German Legal system
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Otto first (Otto the great) was crowned
as the Roman emperor in 962 which marked the establishment of German state.
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The German Empire was the successor of
the Roman Empire and preserved the Roman law and Canon law parts of the jus
commune.
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At that time Germany lacked most of the
important attributes of sovereign states; it was composed of hundreds of
principalities some of which were even occasionally at war with each other.
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During the middle age, sachsenspiegel
(compilation of local customary law) was used as the model of constitution and
codes in many German towns.
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It was practiced in various parts of
Germany for more than 300 years ( until the reception of Roman law in the
16th century).
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It also influenced the German Civil code
which was made in the 20th century.
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Where there was gap in that law local
customary law it was supplemented by Roman law.
Historical development
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After the 11th century,
European universities started to teach Roman law and
University trained jurists gradually replaced the lay judges as Schoffe.
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University trained judges applied Roman
law in their decision.
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The emperor restructured the Court in
1495 and directed it to decide cases according to imperial law (law issued by
the king) and common law (judges meant it as the Roman jus commune of the
universities).
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Roman law served as subsidiary source of
law i.e. it was applied when local statues or customary law had gap.
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Thus, Roman law used in Germany
additionally contained German elements and was somewhat different form the
classic original.
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Roman law as embodied in the Corpus
Juris Civilis, was “received” in Germany from the 15th century
onward.
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German Customary law again came under
Roman influence in the 15th century, when Roman law was received into Germany
in an effort to systematize customs and legal institutions.
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In some areas it was regarded superior
than custom, particularly when there was no conflict between the two; in
others, Roman and customary law existed side by side. Customs prevailed when
there were inconsistencies.
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The legal process has been viewed in
Germany as the application of more or less generally formulated rules to
individual cases.
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In Germany, the movement for
codification began in the 18th century.
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The Napoleonic Code remained in
operation in the 19th century throughout much of the western area of Germany.
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There were inconsistencies between the
law of different territories and even different towns.
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In some areas the Napoleonic Code was in
practice, some applied Prussian Civil Code( Prussia is now under Germany),
and other areas practiced local codes and customs and still
others practiced various combinations of all of these. (diversity in law)
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Throughout the 19th century, German
legal scholars argued about the type of national code that should be written.
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Codification was possible only with the formation
of the Empire in 1871.
Drafting of German Code
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Different commissions were established
for drafting the Code.
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The first draft of the code was
presented for critical appraisal in 1888, it was rejected as being too Roman.
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A
second draft was promulgated in 1896 and went into effect in 1900.
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German Code came almost a century after
the French civil code.
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Its draftsmen profited from the intensive
efforts of German scholars who had systematized, clarified, and modernized the
law during the 19th century
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The code is the product of scholarly
mind. It has also obtained nickname ‘professorial law’.
German code
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The French Civil Code of 1804 was
written for the layperson whereas the German civil code was addressed to
professional jurists.
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As a result, the German Code is markedly
different from the French Code. Its arrangement is more orderly, its language
is more precise, and its use is more exacting.
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Herbert Kritzer has enumerated five
characteristics of the German Civil Code i.e. scientific, systematic,
conceptualistic, and abstract and value free. It has adopted the ideology of
nineteenth century liberalism and individualism.
Major provisions
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The code is divided into five parts or
books.
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Book one is entitled the General Part and
contains rules that are general not only to the Code but to all private law. It
contains the concept of personal rights and legal personality.
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The subjects of the other four parts are
obligations, including concepts of sale and contract; property law, family law
and inheritance law. The German Civil Code has had an important influence on
the private law of other countries, particularly Japan, Switzerland, and
Greece.
The Concept of Law
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As a civil law nation, there is
division of law into public and private.
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Public law regulates the relation
between the state and its subjects while private law regulates legal relations
among the subjects themselves.
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Thus, the principle public law
categories are constitutional law, administrative law, the tax law and criminal
law.
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Private law includes contract, torts,
property, business enterprises, commercial transactions, family relations and
inheritance.
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There are also hybrid types of law like
labour law.
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Five principle codes- civil, commercial,
criminal, civil procedure and criminal procedure are nationwide in scope.
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The basic law of Germany establishes
federal government and permits the states (landers) to create their own
legal systems consistent with the rights and principles in articles 1-20 and
subject to other constitutional restrictions.
Role of case law
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In civil law countries, decision is
based on written legal rules established by legislation.
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There is no any rule to compel the judge
to follow the decision of the higher courts. Judges do not cite the decisions
of the higher courts only basis of their decisions.
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However, precedents are not binding but
are normally followed in practice and therefore, play a very important role,
especially for the uniform interpretation of written legal rules.’
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The decisions of Federal Supreme Court
are regarded as binding for the lower courts.
The Judiciary
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The judiciary in Germany is unitary in
nature.
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The highest courts are federal organs
while the lower courts are local (the states have financial responsibility and
authority to appointment of the judges of lower courts)
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At the bottom, there are local
courts in towns and cities to hear
minor civil and criminal cases.
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District courts have appellate
jurisdiction over minor civil and criminal cases form local courts and have
general jurisdiction as the court of first instances for significant criminal
and civil cases, juvenile cases and commercial cases.
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Court of appeal is the highest ordinary
court in the state, whose decision based on state law, is final.
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There are federal courts named federal
patent court and federal disciplinary courts. Appeals from these courts and
state Court of Appeal are heard by the Federal Supreme Court.
Specialized courts
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Apart from these general courts, there
are specialized judicial bodies.
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Federal Constitutional Court adjudicates
issues of national constitutional law.
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There are four specialized courts that
have final jurisdiction within their field of competence named; Federal Labor
Court, Federal Administrative Court, Federal Tax Court and Federal Social
Security Court.
Legal profession
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To become a judge or lawyer one has to
pass two state examinations. After at least four or five years of university
education, anyone has to pass the first test held by state Court of Appeal.
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After passing this exam, they proceed to
preparatory service (three years of training in a civil court, criminal court
or public prosecutors' office or an attorney’s office)
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Then, one has to pass the second
examination.
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The choice between different legal
professions occurs only after passing these examinations.
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Only an attorney who is member of bar
association is allowed to represent others before a court of law.
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Apart from the attorneys, there are Notaries (Notar)
who draft legal documents or make certification thereof.
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