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Law of Germany

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, for example most regulations of the civil code
(Brgerliches Gesetzbuch, or BGB) were developed prior to the 1949 constitution. It is
composed of public law (ffentliches 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. It has been subject to a wide array of influences from Roman law, such as
the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.

History[edit]
German law has been subject to many influences over the centuries. Until Medieval
times the Early Germanic 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 minor territorial entities, the laws varied very much, according to local
traditions and religions. These laws were codified in about local 3000 Weistmer (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.
Prussia made an effort to bring in an all-new set of laws with the Allgemeines Landrecht
fr die preuischen 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 pnal 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 major process of legal
standardization ensued, beginning with criminal law and procedural law and
culminating in the Brgerliches 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 still do so in modern federal Germany.

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 include any basic ethical or political principles. 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.
After the war, the two newly emerged German states adopted two different legal
systems. The socialistcommunist 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 to
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 many 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. German law is still strongly
influenced by federalism, and the individual states (Lnder) each have their own
responsibilities and particular laws, which can be seen as inefficient, but allows for
regional variation and promotes meaningful regional democratic responsibility. German
legal tradition has in turn influenced many other countries. Just to name a few, the legal
systems of Japan, the Republic of Korea (South Korea), United States of America and
the Republic of China (Taiwan) are to some extent based on German law.[citation needed]

Public law[edit]
Public law (ffentliches 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 (Bund) and a public authority of a state (Land).
Public law was formerly based on the so-called "ber-Unterordnungs-Verhltnis"
("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 "berUnterordnungs-Verhltnis" 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 "berordnung", which would qualify these
regulations as public law. The newer theory qualifies these regulations as private law,
because though the parents are superior, 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[edit]
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 Germanys
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 Rechtsstaatsprinzip,
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 Federal 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 courts 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 ('Lnder') and their
branches.

Administrative law[edit]
The administrative law is the law of the Executive. 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).

Administrative civil law[edit]


The executive may act on grounds of the "Brgerliches 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[edit]
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
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 le. The Judgement is passed out by a judge or
in higher courts a team of judges, of which in several cases two are ordinary citizens
(Schffen). German law does not provide for juries. Sentences stretch from fines to life
imprisonment, which is usually open to appeal after 15 or more years because of
constitutional reasons. The 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[edit]
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 (e.g., as when an authority buys
its office supplies from a private company). In contrast, whenever a state agency
exercises official power, private law is not to be applied.

Civil law[edit]

Main articles: German contract law, German tort law, Unjustified enrichment in
German law, German property law, and German labour law
Civil law (Brgerliches 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 (Brgerliches
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 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.
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.

Procedural law[edit]
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 the exception of Social
Law and some parts of Labor Law, the costs of all the participants of the lawsuit

(including the costs of the opponent) have to be paid by the unseccessful party to the
extent that it did not prevail.

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