To what extent do international sources of law apply? International law International treaties are only effective when transferred into national law by the legislative authorities Article 59 section 2, Basic Law. This includes United Nations treaties. However, there is an exception for general rules of international customary law, which are an integral part of federal law Article 25, Basic Law. Declarations of the United Nations General Assembly are non-binding recommendations and statements.
There is no need to transform these declarations into national law. However, where they are acknowledged by long legal practice, these recommendations and statements may become general rules of international customary law Article 25, Basic Law. Law of the EU EU regulations have immediate legal effect in member states without needing to be transferred into national law.
EU directives only provide for a legislative framework, must be implemented in German law and allow for a certain amount of leeway in the legislative process of the member states. Regulations are the most commonly used legislative tool of the EU. Court structure and hierarchy. What is the general court structure and hierarchy? The judiciary consists of the following courts:. Ordinary courts responsible for all civil and criminal matters.
Constitutional courts on the federal and state level. Specialised jurisdictions such as labour courts, administrative courts, fiscal courts and social courts. For ordinary proceedings in civil matters, German civil procedure provides for three instances.
The first instance is either the District Court or the Regional Court, depending on the value of the matter in dispute. The second instance is either the Regional Court if the District Court has jurisdiction in the first instance or the Higher Regional Court if the Regional Court has jurisdiction in the first instance. The third instance is either the Higher Regional Court in the first case or the Federal Court of Justice in the second case.
The criminal courts have a similar structure of three instances. The jurisdiction in the first instance of either the District Court or the Regional Court is determined by the gravity of the crime. The labour courts, administrative and social courts also provide for three instances.
Constitutional courts exist at state and federal level. Although decisions by the Federal Court of Justice may be challenged before the Federal Constitutional Court, the latter does not act as a further instance to which decisions can be appealed. The Federal Constitutional Court will only assess whether or not a court decision would violate constitutional law; it does not judge whether sub-constitutional law has been applied correctly.
To what extent are lower courts bound by the decisions of higher courts? German judges are not bound by decisions of higher courts, and every judge is free to decide a case as he or she deems correct. German law does not recognise the common law concept of precedent. All judges are independent and subject only to the law Article 97 section 1, Basic Law. Decisions by higher courts do not, therefore, form a part of the law to which judges are subject.
Certain specified decisions of the Federal Constitutional Court which have the force of law are excepted section 31 2 , Law on the Federal Constitutional Court. However, in practice, decisions of higher courts, especially those of the federal courts, are quite often followed by lower courts.
Are there specialist courts for certain legal areas? The German court system includes several specialised courts, most of which are organisationally located at the ordinary courts:. Family courts deal with marriage law, law on the parent and child relationship, law related to descent, adoption, statutory equalisation of pension benefit rights and matrimonial property law. Guardianship courts can impose custodian and committal orders. Probate courts are responsible for issuing certificates of inheritance, enforcing wills and contracts of inheritance and appointing executors.
Commercial courts are specialised courts for commercial disputes. Their jurisdiction must be specifically invoked either by the claimant or the respondent sections 96 and 98, Court Constitution Act Gerichtsverfassungsgesetz. The lawyers' courts, as an institutionalised form of self-regulation of the legal profession, have jurisdiction over matters regarding the infringement of rules of professional conduct by lawyers. Are other quasi-legal authorities commonly used?
Alternative dispute resolution is possible in several legal matters. Ombudsmen are appointed in respect of certain sectors, such as banking and insurance. Their task is to resolve conflicts between businesses and their customers. Their decisions are not legally binding but are often accepted.
Institutionalised extrajudicial dispute resolution mechanisms are available in the following areas:. Medical matters between a patient and their doctor. Disputes between a costumer and a financial institution. Disputes between a traveller and a tour operator. Does the constitution provide for an independent judiciary? Judges are independent and subject only to the law Article 97, section 1, Basic Law. Judicial independence is not limited to the content of decisions, but extends to the procedure and the circumstances of the work of a judge.
How are members of the judiciary typically appointed? Appointment German judges are career judges. After working for at least three years on probation generally five years , judges are usually appointed for life.
A judge will be initially assigned to a certain court, but these assignments are not final and will change through the course of a judge's career. Qualifications Judges must pass two state examinations. The first examination concludes academic law studies, and the second concludes practical legal training. Judges must be German citizens. Litigation civil and criminal. Do the courts use an adversarial, non-adversarial or other system?
Civil matters In civil matters, the system is adversarial. The court generally only considers facts presented by the parties. The parties are responsible for gathering evidence to support their case. The court is strictly bound to what the parties present it with, and cannot act on its own. In some civil matters, like custody cases and cases regarding marriage law, this principle is replaced by the principle of official investigation.
This is because these types of case may have effects on persons who are not parties to the proceedings. Criminal matters If there are indications of a crime having been committed, the district attorney or the police department must initiate an official investigation. If the matter comes to a trial, it is the court's duty to pursue further official investigations.
The court is obliged to take evidence, whether or not defence counsel or the district attorney ask that evidence is heard. Administrative matters The principle of official investigation also applies in administrative courts where there is a legal matter between a citizen and the authorities.
Who is responsible for gathering evidence? The principle of official investigation applies in criminal and administrative proceedings. The court is responsible for taking evidence and ascertaining the facts of the case, although the methods the court may use are limited. In particular, in criminal trials, the accused's fundamental rights must not be violated. Civil proceedings are, in contrast, in the parties' hands.
It is the parties' duty to present all relevant facts, and the court will base its decision on these section , Code of Civil Procedure. The principle of official investigation applies to a small number of civil cases for example, in custody cases. Is evidence independently examined before a trial? Generally, in both civil and criminal cases, evidence is examined in a hearing by the court, rather than by the parties or their lawyers.
In criminal proceedings, all evidence must be presented during the trial. Only the results of the main oral hearing may serve as a basis for the sentence sections and , Code of Criminal Procedure.
Written evidence, such as documents, must be read out and witnesses must be interrogated in the presence of the court and the public. In civil law, the principle of immediacy applies, which means that the taking of evidence must generally happen before the court. The judgment may be given only after an oral hearing, and may only take into consideration facts presented during the hearing. It is, however, possible to refer to documents.
In urgent matters, the main proceedings can be preceded by an independent evidence procedure in order to ensure preservation of that evidence which could get lost or otherwise become unobtainable during the course of regular proceedings is taken on short notice. Civil law Hearings and other court dates for example, the delivery of judgments are open to the public section , Court Constitution Act.
This is, for historical reasons, intended to ensure that the courts are supervised by the public, and to prevent arbitrary proceedings. Certain matters where the confidentiality interest of the parties is deemed to exceed the interest of the public, for example in family law matters, are not open to the public.
American civil procedure, led by "notice pleading," denies them such basic information as precisely what parties want, what parties agree on, and what is actually in dispute. Consequently, civil justice generally fails at its essential purpose: application of law to facts to determine rights.
There is no judging. In other countries' systems of civil justice, judges actually judge. They frame issues, they take evidence when needed , and they decide cases according to law.
Judges do not leave procedural decisions in the hands of competing lawyers, who naturally seek advantage -- they guide process. From the beginning of the lawsuit, they impartially apply law to facts to determine parties' claims under the law.
The parties are required to help. The German system in particular provides a clear example of how a civil justice system can work better. Comparing how American process works to its German counterpart highlights five ways in which our own system is defective:. In Germany, parties must tell judges about their claims at the outset.
In their complaints, German plaintiffs are required to state facts that support their claims. They must identify evidence upon which they plan to rely; defendants, in turn, must substantiate denials with facts where possible. In the United States, by contrast, plaintiffs reveal few facts and identify little evidence in their complaints. Before , they had to at least state facts. German judges "live" with cases from the start.
Judges, not defendants, are the first people to read plaintiffs' complaints. Upon filing, judges review complaints to make sure that they meet procedural requirements and determine whether the facts alleged, if proven, would support judgments. Only after judges have reviewed complaints are they served to defendants -- baseless complaints ordinarily don't get this far.
In the United States, on the other hand, judges do not review complaints before service or often at any time. After service, on defendants' request, they may review specific aspects, but this post-service review, in comparison to its German counterpart, is protracted and expensive.
After that comes the Higher Regional Courts Oberlandesgerichte that seat three to five professional judges. It has five professional judges that hear cases. Criminal cases can be assigned to any of the first three Courts. Civil matters are normally assigned to the first two Courts. Appeals can be made to two higher courts. The special Administrative law courts Verwaltungsgerichte have three levels and hear cases regarding government regulations and actions. Labor law courts Arbeitsgerichte also have three levels and hear cases regarding employment issues, working conditions and collective bargaining agreements.
Social law courts Sozialgerichte have three levels and work with cases involving the various social benefits. These include unemployment payments, workers compensation claims and social security payments.
Financial Courts Finanzgerichte have two levels and only adjudicate cases involving tax issues. Any Constitutional law issues are heard by the Federal Constitutional Court Bundesverfassungsgericht. When authorities question a suspect, they must make it clear that any statement may be used against him or her.
The authority of German police is about the same as in other developed countries. If a party is required to appear in a German court he or she will be properly served with a summons. Failure to appear in court may be punished. Drug offenses such as importation, sale or possession of narcotics, including marijuana and hashish, are considered serious crimes.
German law has very strict requirements regarding the registration and possession of firearms and other weapons. Anything an individual sells including a car automatically carries a six-month warranty under law unless this has been explicitly excluded.
Normal wear and tear of a used item is not considered a defect. Annulments are very rare. The differences between German and Anglo-American laws are particularly obvious when it comes to contracts. In the US, for example, it is common, and usually necessary, to spell out everything in a contract. There may be nothing in the lease dealing with notice periods, renovations required or actions in the event of non-payment of rent, but these things are still covered because of the law.
An agreement to rent an apartment or house for a fixed term cannot be terminated early except under extraordinary circumstances. A job transfer is usually not an extraordinary circumstance. It is a criminal offense in Germany to show disrespect for the colors, flag, coat of arms or national anthem of the country or any of its states; or to remove, damage or disfigure any publicly displayed national flag or symbol.
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