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Germany has one of the most scientific legal systems anywhere in the world. For a person with English as his or her mother tongue to seek to understand that system is not easy, even with a legal education. Why is this so? The principal reason lies in the fact that, for historical reasons, the methods and sources of German and English law have developed differently. Another reason is the German language and its seemingly endless supply of formal terminology.
Certainly, legal and everyday language are not the same anywhere, but where can this be more so than in Germany? If the linguistic complexities were not enough, the enormous codification of practically every area of law in Germany will remain a formidable obstacle to comprehension of the German system for a foreigner, even after the dawn of the new Europe after The German legal system remains, generally speaking, a system of positive norms, ie, traditional German legal thinking revolves, in the vast majority of cases, around the twin immutable pillars of an established system and norms regarded as authoritative.
Alternative legal methods have not yet made great inroads in Germany. This book contains a general survey in the English language of the structure and concepts of some of the main areas of German law. My aim has thereby been to provide a basic insight into the German legal system and technical language. The book is based on my understanding and study of German laws and texts and constitutes a summary and introduction only.
A more detailed account, for example, of the Grundgesetz and the BGB, would have involved lengthy exposition, which I wanted to avoid. Understanding the layout of the various laws is, in my view, the main task for the newcomer see Chapter X, Note In particular, the book does not deal with banking, competition, insurance, intellectual property, planning building , environmental or tax law nor with many of the numerous statutes in the fields of private and public law to be found in the handbook collections Schnfelder and Sartorius for examples see Chapter XIX A.
These areas can be considered at another time. To well versed German lawyers and experts the book will, I am sure, provide opportunity for criticism of misunderstanding, errors and incompleteness. Readers with a love for plenty of case-law should always remember that it is a fact that the German legal system is almost entirely based on codifications. For those readers, who wish to compare English and German law, I have indicated in the Index under English law where aspects of English law are referred to in the book.
However, I do not hold the book out as a work on comparative law. Zweigert and Ktz make the interesting prediction that the day may not be too far distant when the project of a European Civil Code will be undertaken Chapter 14 II. Whatever the chances of such a Code ever being enacted, I would venture to wager that the long established and highly developed concepts contained in the various codifications of German law will remain in use for so long as German is spoken.
The vital role of language and the question of popular acceptance should not be underestimated. What should be retained or copied and what is irrelevant or outdated? How much is really necessary? Is a federal system a foregone conclusion? What will happen to the monarchies? Should they be streamlined? How can the risk of a usurpation of power be minimised? Can the principle of legal certainty Rechtssicherheit be upheld in a multi-lingual environment? For centuries, codified and common law have been opposite poles and have coexisted side by side. Despite some doubters,10 movement has now set in and the debate between the supporters and opponents of both systems will have to be faced.
If, indeed, pan-European law should become a reality,11 lawyers will play an important part in ensuring that accessibility, clarity and flexibility do not suffer. Whether European law is ultimately nothing more than a mirage, time will tell. Much will depend on the ingredients placed in the European legal crucible. The achievement of efficiency and transparency in a jungle of norms must involve some sacrifice. I hope that, despite such imperfections as it may have, this book will prove useful to those native English speakers who deal with legal matters in Germany, to those who wish to try to grasp the nettle of the German legal system and legal language for the first time and to those who aim to qualify as German lawyers.
Comments and suggestions regarding the book are welcome. Since the first edition, I have made various additions and corrections, more often than not in the Notes and Appendices. Insertions and reorganisation of information have meant changes in the numbering of Notes. I also draw attention to recent reforms to the Commercial Code HGB and controversial changes in employment law and lawyers practice rules.
The content and, therefore, size of the Notes results from the fact that I amend the book and insert new Notes sporadically in the course of my experience. I acknowledge that, in places, the length of some Notes is out of proportion to detail in the main text and that some users dislike having to locate relevant detail in a lengthy Note.
Consequently, a shortening of some Notes and a transfer of information to the text is desirable. However, when one deals with such an intricate subject matter, such an operation is not merely a question of styleit will involve substantial and time consuming reorganisation. In the meantime, the Notes now comprise a separate section following the main text, instead of being integrated therein, as in the first edition.
I hope that these changes will be considered helpful. Finally, as before, I have endeavoured to maintain correct and consistent translation and to cross-reference the text, Notes and Appendices. I would also particularly recommend: Creifelds: Rechtswrterbuch, which is a concise German legal dictionary; The Constitutional Jurisprudence of the Federal Republic of Germany by Donald P Kommers, which is an outstanding casebook and treatise on that subject; and Raymond Youngs Sourcebook on German Law, which contains a selection of many instructive German texts with English translations and commentary.
Additionally, reference can be made to the numerous textbooks Lehrbcher and commentaries Kommentare on the various areas of German law, if more detailed advice is required. Included in my bibliography are many standard books for German law students. A multitude of regular magazines, general and specialist, cover every aspect of the German legal scene. They include cross-references to Chapters in the text, to books listed in the Bibliography eg, Creifelds: Rechtswrterbuch and the Sourcebook on German Law and to relevant statutory provisions.
In case information sought is not located in the text or in the Index, reference to the Notes, the Vocabulary and the other Appendices should be made. The present day German legal system has its roots in Roman law. The Twelve Tables provided the basic legal code of Rome for almost a thousand years. Between the years and AD the Emperor Justinian initiated a collection of imperial Roman law from the reign of Hadrian AD onwards in a Codex code and a collection in fifty books of the writings of numerous classical Roman jurists in the Digesta digests or Pandectae pandects.
Together with an introductory textbook, the Institutiones institutes based on the writings of the jurist Gaius, the Codex and Digesta are referred to as the Corpus iuris civilis body of civil law of Justinian. The University of Bologna, the oldest university in Europe, became famous for the study of Roman law and, in the 13th century, Accursius completed his Glossa ordinaria ordinary gloss , which remained authoritative for centuries thereafter. In Germany, a multitude of regional legal sources then existed, the most wellknown of which is the Sachsenspiegel Saxon Mirror of However, Roman law was gradually taken up: the so-called Rezeption des rmischen Rechts reception of Roman law.
The age of reason brought about a gradual departure from the traditional principles of Roman law and a return to the principles of natural law.
His view of law as the product of human reason and mans inborn appetitus societatis social appetite , where contract forms the binding element pacta sunt servanda agreements must be honoured , was followed in Germany by Pufendorf, Thomasius and Wolff at the beginning of the 18th century. Intellectually, the hallmarks of the early 18th centuryreferred to as the Age of Enlightenmentwere a turning away from spiritual dogma, in favour of tolerance and a search for the truth based on secular understanding Verstand.
The irrationality and superstition of the Middle Ages finally gave way to an optimistic view of the world according to logical, mathematical principles Leibniz. The former preeminence of theology was assumed by philosophy and French ideas, in particular, were held in high esteem Descartes, Voltaire. The 18th century was also the greatest period of modern German drama and literature Lessing, Goethe, Schiller.
Individualism and radical notions of natural rights were the liberating forces underlying the American and French Revolutions. In , a dispute broke out between two German jurists as to the need for a codification of civil law14 in Germany15 In favour of a uniform, national statute was Professor Thibaut from Heidelberg. Against it was the famous Professor Savigny from Berlin. Savigny was the founder of the so-called Historische Rechtsschule historical school , which regarded law as an organic product of history Geschichte. According to Savigny, law was not based on Vernunft reason or Willkr arbitrariness , but was Gewohnheitsrecht customary law and originated from the Volksgeist spirit of the people.
During the 19th century, jurists such as Puchta and Windscheid followed Savignys views, but changed the emphasis to a scientific approach to law the so-called Pandektenwissenschaft science of the pandects. Roman law was taught and refined on a scientific basis throughout Germany. Abstraction was the order of the day: the.
Begriffsjurisprudenz dominated at the time the German Civil Code BGB was finally enacted in , but the theorys positivist dogma was criticised by Jhering who regarded law as motivated by the protection of human aims Zwecke and interests Interessen : Interessenjurisprudenz and, subsequently, by the so-called free sociological legal school at the start of the 20th century.
In Germany, state power Staatsgewalt is not centralised. The Bund is a federal state Bundesstaat , a new state created by the joining together of its members. The administration Verwaltung of Germany is divided between the Bund and the Lnder as carriers Trger thereof. The key to an understanding of the term Verwaltungstrger carrier of administration and, thus, of the construction of the executive in Germany is the recognition that Verwaltungstrger have specific Organe organs and as a subsidiary term Behrden authorities.
Such carriers of indirect state administration Staatsverwaltung are the public ffentliche corporations Krperschaften , institutions Anstalten and foundations Stiftungen. By contrast, however, it can also: act fiscally fiskalisch , ie, participate in the economy for commercial purposes erwerbswrtschaftlich; eg, as the owner or shareholder of an enterprise or engage in accessory transactions Hilfsgeschfte; eg, acquisition of goods ; or perform its public functions ffentliche Aufgaben in the forms available under private law: so called Verwaltungsprivatrecht or Verwaltung in Privatrechtsform.
In each Land, the statute governing local authorities the Gemeindeordnung 13 lays down a public legal right of admission Zulassung for its residents Einwohner. The use Benutzung of the relevant amenity itself can, however, be governed by private law. The administration of justice in Germany is divided into five branches Zweige : the ordinary jurisdiction ordentliche Gerichtsbarkeit ; the employment jurisdiction Arbeitsgerichtsbarkeit ; the general administrative jurisdiction allgemeine Verwaltungsgerichtsbarkeit ; the social jurisdiction Sozialgerichtsbarkeit ; the finance jurisdiction Finanzgerichtsbarkeit.
It is a founding and unalterable principle of the Basic Law that the Bund and the Lnder are democratic and social republican states in which the rule of law prevails Rechtsstaaten Articles 20 i , 28 i and 79 iii GG. It also underlies, for example, Articles 19 iv , i and i and is the source of the principle of proportionality Verhltnismigkeitsgrundsatz.
Other important elements of the Rechtsstaat principle are the requirements of legal certainty Rechtssicherheit and the protection of trust Vertrauensschutz , ie, reliance on particular laws and the basic prohibition of retrospective legislation Rckwirkungsverbot. Article 20 ii GG sets out other fundamental principles.
First, all state power Staatsgewalt in the Bund and the Lnder springs from the people Volk : the principle of the sovereignty or right of self-determination of the people Volkssouveranitt. Secondly, state power is exercised by the people in elections and plebiscites: the principle of representative democracy. The freiheitliche demokratische Grundordnung is the basic order of freedom and democracy upon which, by common consent, Germany is constructed.
It includes: the Rechtsstaat principle; the peoples right of self-determination Selbstbestimmungsrecht ; the separation of powers;25 the binding of the legislature to the constitutional order and of the executive and judiciary to statute and law; the multi-party system Mehrparteiensystem ;26 the independence of the judges Unabhangigkeit der Richter ;27 the basic rights; Only the Bund enjoys unrestricted sovereign authority in foreign relations: Article 32 i GG. This is the so-called Vertragsgesetz treaty law or Zustimmungsgesetz approval law.
The Zustimmungsgesetz is also referred to as the Transformationsgesetz because it transforms the provisions of the treaty ie, public international law Vlkerrecht into national law. Thus, they remain subject to the rule lex posterior derogat legi priori a later law supercedes an earlier one and can, in so far as national law is concerned, be repealed.
The Lnder are largely free to conclude treaties Staatsvertrge amongst themselves see, eg, Article 29 vii GG. However, a treaty between a Land and a foreign state must fall within the legislative competence of the Land and requires the approval of the Federal Government: Article 32 iii GG. The ministeries themselves are supreme federal authorities oberste Bundesbehrden.
Further supreme federal organs are: the emergency Joint Council gemeinsamer Ausschu ; the Federal Assembly Bundesversammlung ;4 the Federal Constitutional Court Bundesverfassungsgericht. The highest executive organs of the Bund are the Bundesprsident and the Bundesregierung. Beneath them, the administration Verwaltung of the Bund is built up on the following levels: the supreme federal authorities oberste Bundesbehrden ; the upper federal authorities Bundesoberbehrden ; the middle federal authorities Bundesbehrden ; the lower federal authorities Bundesunterbehrden.
Another designation is Bundesanstalt fr Federal Institute of. Administration by a Bundesamt or by a Bundesanstalt, which has no independent legal capacity nicht rechtsfhig , is an example of direct state administration by the Bund bundeseigene Verwaltung. The relevant authority is incorporated eingegliedert into the Bund. The best examples of lower federal authorities are the Grenzschutzmter border protection offices and the Zollmter customs offices. The Finanzmter tax offices are, however, lower authorities of the Lnder; the Oberfinanzdirektion Upper Finance Directorate is hybrid ie, it is both a federal authority and one of a Land.
Unlike the middle and lower federal authorities, the competence of the upper federal authorities extends to the whole federal territory Bundesgebiet. Before the reunification Wiedervereinigung of Germany on 3. Berlin, Bremen and Hamburg are city states Stadtstaaten. Since reunification, the following five states in east Germany the neue Bundeslnder new federal states now also form part of the Bund: Brandenburg; Mecklenburg-Vorpommern; Sachsen Saxony ; Sachsen-Anhalt; Thringen Thuringia. Each Land has its own constitution Landesverfassung.
In the absence of other provisions in or allowed by the Basic Law, there is a presumption Vermutung that state administration in the Lnder is within their competence Zustndigkeit; Article 30 GG. The upper level is composed of the ministeries and state chancelleries Staatskanzleien acting as oberste Landesbehrden, to which the Landesmter Landesoberbehrden directly report Each Land is usually divided into governmental areas or districts Regierungsbezirke headed by a president Regierungsprsident.
The governments Regierungen of these areas make up the middle level. The Lnder are represented at the Bund through the Bundesrat and by ministers of the Lnder responsible for federal matters Bevollmchtigte beim Bund. Beneath the Bund and the Lnder, the administrative authorities on the third lower level are the communal territorial corporations kommunale Gebietskrperschaften , usually known as the Land- Kreise regional authorities and the Gemtinden local authorities, ie, the most local communal units.
The same applies to a city Stadt , which term is used to describe a municipal Gemeinde. Once a city reaches a certain size or importance, it can become a kreisfreie Stadt. Gemeinden create such facilities by way of Widmung dedication.
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The Gemeindeordnungen provide for the Gemeinden in the various Lnder to be composed in different forms. Local matters extending beyond the capacity of a Gemeinde berrtliche Angelegenheiten subsidiarity principle! The members of the Kreistag are elected by the local population. The Landrat is usually a Kommunal- not Staats- beamter communal civil servant and is appointed by the Kreistag except in Bavaria, where there is a direct election for the post. In the latter capacity, the office of the Chief Executive Landratsamt is, therefore, Staatsbehrde.
The Landrat is the third level, beneath the ministeries of the Land and the governments of the Regierungsbezirke. A kreisfreie Gemeinde is, by definition, not attached to a Kreis ie, it has no Kreis above it and is, therefore, merely a substitute for the Landrat. The Basic Law ranks higher than other legal norms Rechtsnormen , which must be interpreted so as to conform with it verfassungskonforme Auslegung. The judiciary which is independent Article 97 i GG has the right to check whether this is so richterliches Prfungsrecht.
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Thus, for example, where a Verwaltungsakt administrative act VA is concerned, not only must it be valid, but the authorising norm upon which it is basedthe Ermchtigungsgrundlage Rechtsgrundlage must also itself be valid. It may form part of a Gesetz statute , a Rechtsverordnung statutory regulation or a Satzung bye-law. On the formal side, the relevant body must have possessed legislative competence Zustndigkeit , gone through the correct procedure Verfahren and issued the norm in the appropriate form.
In such proceedings, the Federal Constitutional Court acts as guardian of the constitution Hter der Verfassung. If the norm is found to be unconstitutional or the law incompatible, it is declared void 78 BVerfGG. Moreover, if a criminal conviction is based on such a norm, a re-opening of the case re-trial is possible 79 i BVerfGG. These last-mentioned provisions apply correspondingly in cases of concrete norm-control 82 i BVerfGG.
In the case of a constitutional complaint against a statute or other official act, the complaint must be brought within a year from the date the statute came into force or the date the official act was issued: 93 iii BVerfGG. In order for the complaint to be admissible zulssig , the infringement must affect the complainant individually, currently and directly selbst, gegenwrtig und unmittelbar. If it allows the complaint, the Federal Constitutional Court pinpoints the relevant breach of the Basic Law. In the case of a court decision, it quashes it and refers it back to a competent court;17 in the case of a provision in a statute, it declares it void 95 BVerfGG.
Despite the precedence of federal laws over that of the Lnder Article 31 GG; Bundesrecht bricht Landesrecht , those basic rights also contained in constitutions of the Lnder remain in force so far as they accord with Articles GG Article GG. The basic rights bind binden the legislature, executive and judicature as directly applicable law unmittelbar geltendes Recht; Article 1 iii GG.
However, they also include certain institutional guarantees and are the expression of an objective value-order Wertordnung. It is possible for basic rights to be limited eingeschrankt. In many cases, the right for this to be done through or on the basis of a statute durch Gesetz oder aufgrund eines Gesetzes is expressly reserved in the various Articles of the Basic Law so-called Gesetzesvorbehalt. The limiting statute must apply generally and not only to an individual case and the Article being limited must be cited Article 19 i GG: the Zitiergebot.
It is also possible for the limits Schranken of a basic right to be implicit immanent in the relevant basic right or interpreted by means of a balancing Abwgung between conflicting rights. An express limitation of a basic right must itself be interpreted in the light of the basic right the so-called Wechselwirkungstheorie theory of reciprocal effect. The measures undertaken by the executive must be proportionate, ie, suitable geeignet , necessary erforderlich and in fair relation to the intended goal verhtttnismig. Article 19 iv GG guarantees the right of everyone to go to law usually to the administrative courts , if his rights are infringed by the executive Rechtsschutzgarantie.
This right is supplemented by the right to lodge a constitutional complaint Article 93 i No 4aGG. German law divides itself strictly into public law ffentliches Recht dealing with the relationship of the individual to the state and other carriers of public powerand private law Privatrecht dealing with the relationship of citizens amongst each other.
There are various theories as to how to establish whether a particular norm falls within the area of private or public law, for example: the interest theory, which asks if the norm serves the interests of the state or those of the individual; the subordination theory, which asks if the legal relationship between the parties is on equal terms auf der Grundlage der Gleichordnung or one of dominance and subordination ber- und Unterordnung ; and the modified subject or special rights theory Sonderrechtstheorie , which asks if the norm necessarily only benefits or is directed at a carrier of public power ob eine Norm nur ein Trger ffentlicher Gewalt berechtigt oder verpflichtet.
Norms can also be distinguished according to whether they: are norms of material or formal law. Formal law formelles Recht deals with the application Anwendung and carrying out Durchsetzung of material law materielles Recht , which contains the substantive provisions. Dispositive norms are referred to as being abdingbar, ie, they can be derogated from by agreement.
They are largely to be found in private law, where the important principles of freedom of contract Vertragsfreiheit and private autonomy Privatautonomie prevail. The Civil Code Brgerliches Gesetzbuch of It consists of paragraphs divided into five Books:3 Book I: Allgemeiner Teil general part , Book II: Schuldrecht law of obligations , Book III: Sachenrecht law of property , Book IV: Familienrecht family law , Book V: Erbrecht law of succession , These concepts are dealt with in Section 1 of the Allgemeiner Teil entitled Personen; Every natural person has a Wohnsitz place of residence.
Its broad equivalent in the English legal language is the term domicile, although a better translation thereof would be Heimat home. A persons Wohnsitz is of importance for various purposes, eg, as the place of performance under i BGB and in order to establish which court has local jurisdiction in civil or criminal proceedings 13 ZPO and 8 i StPO. The key element of a Wohnsitz is constant settlement stndige Niederlassung at a particular place, the decisive factor being the desire to establish an intensive connection intensive Bindung to that place.
Sachen are dealt with in Section 2 of the Allgemeiner Teil entitled Sachen; Unlike Rechtssubjekte, Rechtsobjekte have no rights and usually belong to Rechtssubjekte. A subjektives Recht is the legal power Rechtsmacht or legally protected interest rechtlich geschtztes Interesse of the individual, as opposed to the objective law das objektive Recht , which is the sum-total of all valid norms. It is to be distinguished from the so-called Rechtsreflex legal reflex , which is the non- enforceable favouring of an individual by the legal system. With certain exceptions, the state has a monopoly regarding the protection of a subjective legal right.
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The others are relative rights relative Rechte , as they are only directed against individual persons within a particular legal relationship: Herrschaftsrechte rights of dominance : they give power over Gegenstnde eg, Sachen; they are then known as real rights dingliche Rechte. The most. Persnlichkeitsrechte personality rights.
A general right to ones personality is based on Articles 1 and 2 of the Basic Law. An Anspruch is defined in i BGB as das Recht, von einem anderen ein Tun oder ein Unterlassen zu verlangen the right to demand an act or omission from another. An Anspruch must always have an Anspruchsgrundlage basis , the conditions of which must all be fulfilled if the Anspruch is to be begrndet well founded.
These enable a defendant to negate an Anspruch. They are classified as Einwendungen and Einreden. Subjective rights exist both in private and public law a public subjective right is a subjektives ffentliches Recht.
In accordance with mans right to self-determination Selbstbestimmung , it is a basic principle of the legal order Rechtsordnung that the individual is free to enter into and form legal relationships Gestaltungsfreiheit. It incorporates the individuals freedom to conclude a legal transaction such as a contract on such terms as he wishes: Vertragsfreiheit.
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By means of a Rechtsgeschft, a Rechtssubjekt can achieve a legal consequence Rechtsfolge and create or vary a legal relationship Rechtsbeziehung to another Rechtssubjekt or to a Rechtsobjekt. To be additionally distinguished are: a Rechtshandlung directed to achieving a factual consequence, eg, the setting of a time limit, consent to an operation, establishment of a Wohnsitz.
This is an action similar to a Rechtsgeschft rechtsgeschftshnliche Handlung and the provisions concerning Geschftsfhigkeit and Willenserklrungen are applied analogously. Like a Rechtsgeschft, it can lead to legal consequence, not because of a Willenserklrung, but due to the general law, eg, statutory acquisition of ownership.
However, it requires no Geschftsfhigkeit. Only natural persons are geschftsfhig and can declare their will by means of a Willenserklrung. Thus, only natural persons can conclude a Rechtsgeschft alone. The statutory representatives of persons not fully geschftsfhig are their gesetzliche Vertreter.
Rechtsgeschfte are dealt with in Section 3 of the Allgemeiner Teil Section 3 is divided into six Titles: Title 1: Geschftsfhigkeit capacity to undertake a Rechtsgeschaft : Title 2: Willenserklrung declaration of will : Title 3: Vertrag contract : Title 4: Bedingung condition. Zeitbestimmung time provision : Vollmacht power of attorney : Genehmigung approval : The BGB distinguishes sharply between: persons who have no Geschftsfhigkeit at all, referred to as geschftsunfhig; those who enjoy limited Geschftsfhigkeit, referred to as beschrnkt geschftsfhig; and those who are fully geschftsfhig.
The Willenserklrung of somebody who is geschftsunfhig is void nichtig , as is that declared not received! A child between seven and 18 years of age is a Minderjhriger minor and is beschrnkt geschftsfhig in accordance with As a result, to make a. Willenserklrung he needs the prior consent Einwilligung of his parents, except if he receives merely a legal not commercial! Its validity is then dependant on the subsequent consent Genehmigung of his parents, until which time it is referred to as being schwebend unwirksam, ie, its validity is in abeyance.
If consent is refused, the contract is finally void. In the meantime, the other party has certain rights to demand a statement regarding the Genehmigung from the parents and to withdraw from the transaction ii and Prior consent is deemed to have been granted. A contract with a minor can, therefore, be approved by parents before or after its conclusion. If it turns out to be void, that does not affect the property level sachenrechtliche Ebene of the transaction, which is abstract.