National Law

Chapter 1
I. Basic principles

1. Difference between private and public law

It is essential to distinguish private law and public law.
The background is on the one hand that there are various fields of law. Thus, it is important to
know exactly where to look for the correct legal sources - in other words- to know “Where is
what”.
The different fields of law can be categorized in two main categories which are private law
(Privatrecht) and public law (Öffentliches Recht). This categorization is important because the
procedural law, the jurisdiction as well as the procedure within private and public law trials
are different. In addition, the meaning of “against the law” differs in private law and in public
law.
a. Public law
The characteristic of public law is that it usually governs cases of subordination. This means
that the disputing parties which are the state on the one side and a private party on the other
are not on an equal level. The state (including the administration) is the superior party. One
example for a field of law belonging to public law is criminal law. This example also shows
that in public law “against the law” is often equivalent with what we know as “illegal”.
b. Private law
Private law which is a synonym for civil law deals with cases where people are on an equal
level. Individuals or legal persons do business in various fields of law. Examples are
commercial law and family law. Here the meaning of “against the law” is often negotiable to a
certain extend.
The following chart gives an overview of some areas of law and their categorization under
private and public law. It also shows that there can be exceptions that do not fit distinctly into
either public or private law but straddle both. For example, labor law is governed in some
parts by public law and in some parts by private law.

2. Law Sources (Rechtsquellen)

A basic knowledge of the different law sources is essential because you have to “know where
to look” for the solution of a certain case.
The three main sources are: Common or case law, codified law and customary law.
Common or case law (Richterrecht) is created by judges. In precedents (Präzedentsfälle) rules
applicable to a certain case are determined. If another case deals with comparable facts of a
case the rules of the precedent can be applied.

Codified law (Gesetzesrecht) is enacted by Parliament and is a collection of written laws.

An example is section 906 of the BGB (Civil Code) which governs the introduction of
imponderable substances (unwägbare Stoffe): (1) The owner of a plot of land may not
prohibit the introduction of gases, steam, smells, smoke, soot, warmth, noise, vibrations and
similar influences emanating from another plot of land to the extent that the influence does
not interfere with the use of his plot of land, or interferes with it only to an insignificant
extent. An insignificant interference is normally present if the limits or targets laid down in
statutes or by statutory orders are not exceeded by the influences established and assessed
under these provisions.

Customary law (Gewohnheitsrecht) means that a certain practice is followed by people and is
accepted as part of the law.

An example is the case of a resident who feels disturbed by the noise of church bells and sues
the church. The noise of the church bells is an imponderable substance which falls principally
under section 906 of the BGB. However, the noise of church bells are customarily accepted
by the public and thus the legal action is not successful.

The territory of an embassy legally belongs to the territory of the respective country. This is
sometimes used by people who are denied direct entry in the country. In 1989 several
hundreds of people from the Ex German Democratic Republic took refuge on the territory of
the German Embassy in Prague. Several weeks later their entry to the Federal Republic of
Germany was allowed.
3. Priority of law (Vorrang des Gesetzes)
Priority of law means that legal rules can be put in a certain order and this order also qualifies
their legal importance. For example codes have priority to statutes and ordinances. The
practical relevance of the principle of priority of law is that one can bring a law suit against a
certain legal act. If this legal act infringes a higher ranking code the law suit is successful.
The following chart illustrates the ranking of the legal rules:

In administrative law (Verwaltungsrecht) the priority of law is for example:

I. Basic law
e.g. Art. 14 GG protection of property
II. Statute
e.g. building code (Baugesetzbuch)
III. Ordinance
e.g. building regulation (Bauordnung)
IV. Bylaw
e.g. building scheme (Bebauungsplan)
V. Administrative rule
e.g. internal codes of practice for civil servants (Verwaltungsvorschrift)
VI. Administrative act
e.g. building permit (Baugenehmigung)

In private law an example of priority of law is the following:

I. Basic law
e.g. personal freedom Art. 2 GG
II. Statutes
e.g. civil code (BGB)
rules on general conditions of business
III. Contracts, declarations of intent
e.g. infringement of law by ruling that a gift coupon expires after one year
 4. Procedural law

a. The Judiciary (Justiz):

The Judiciary is divided into five branches:

The first is the ordinary jurisdiction which includes both criminal law cases (e.g. theft) and
private law cases. Private law cases can be qualified in civil law cases (e.g. divorces) and
commercial law cases (e.g. law disputes between companies about payment of delivery).

The second branch is labor law (e.g. strike):

The third branch is financial law (e.g. taxes):

The fourth branch is social law e.g. unemployment payment):

Finally the fifth branch is administrative law which includes for example building law (e.g.
building permit).
The following chart illustrates the judicial system in detail:

Beside the classification in the above mentioned five branches (ordinary jurisdiction, labor
courts, administrative courts, fiscal courts, and social courts) it shows that there are courts in
different stages of appeal (local courts, regional courts, higher regional courts of appeal,
federal courts). The constitutional courts of justice (federal constitutional court, constitutional
court of the federal states) are set aside in this system. Such a court only decides if the case
affects constitutional right, e.g. the freedom of expression.

b. Jurisdiction (Zuständigkeit)

Jurisdiction not only means a branch within the judiciary (ordinary jurisdiction as described
above) but also the power of a certain court to hear and decide a case (Zuständigkeit). The
jurisdiction mainly depends on two criteria.
The first is the geographical jurisdiction, usually meaning the place where the defendant lives
or has his place of business. The second is the subject matter, which can be qualified as well
by the field of law (what is the law suit about) and the value in dispute (money).

It is common when companies are involved to a transaction that they may make an agreement
as to the governing jurisdiction in a contract. Such an agreement about the jurisdiction is
called stipulated venue (Gerichtsstandvereinbarung).

c. Stages of appeal (Instanzenzug)

The following chart gives an overview on the different stages of appeal in the ordinary
jurisdiction:
Where a civil law suit starts is dependent on the value in dispute. Up to 5000 € the jurisdiction
of the local court (Amtsgericht) is given. If the value in dispute is more than 5000 € a law suit
starts in the regional court (Landgericht).
An appeal to a higher court is possible against the verdict of a lower court.
The following chart shows the different routes of appeal in greater detail:

d. Civil law suit (Zivilgerichtsverfahren)

In a civil law suit the plaintiff (Kläger) files the law suit. The plaintiff has to send a statement
of claim (Klageschrift) to court. He also has to pay costs in advance. If he fails to do so the
statement of claim will not be delivered to the defendant (Beklagter).
The defendant, upon receipt of the statement of claim, responds with a statement of defense
(Klageerwiderung).

Then the judge decides whether he will hear the parties right away (early oral hearing) or if
the exchange of more written statements is necessary (preliminary proceedings).
Following this the court hearing takes place (trial date). Finally, the judge will make a verdict,
hear witnesses, get a statement by an expert or reach a settlement (Vergleich) if the parties
agree.