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The law of Germany (german: das Recht Deutschlands), that being the modern German legal system (german: Deutsches Rechtssystem), is a system of
civil law Civil law may refer to: * Civil law (common law), the part of law that concerns private citizens and legal persons * Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law ** Private la ...
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 (''
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project. The BGB served as a template in se ...
'', or BGB) were developed prior to the 1949 constitution. It is composed of
public law Public law is the part of law that governs relations between legal persons and a government, between different institutions within a State (polity), state, between Separation of powers, different branches of governments, as well as relationship ...
(''öffentliches Recht''), which regulates the relations between a citizen/person and the state (including criminal law) or two bodies of the state, 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 Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Jus ...
, such as the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.


History

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 The Renaissance ( , ) , from , with the same meanings. is a period in European history marking the transition from the Middle Ages to modernity and covering the 15th and 16th centuries, characterized by an effort to revive and surpass id ...
, 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 Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565. His reign is marked by the ambitious but only partly realized '' renova ...
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 The Holy Roman Empire was a political entity in Western, Central, and Southern Europe that developed during the Early Middle Ages and continued until its dissolution in 1806 during the Napoleonic Wars. From the accession of Otto I in 962 ...
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 Weistümer (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 a central part of the education of jurists and therefore generally known among them.
Prussia Prussia, , Old Prussian: ''Prūsa'' or ''Prūsija'' was a German state on the southeast coast of the Baltic Sea. It formed the German Empire under Prussian rule when it united the German states in 1871. It was ''de facto'' dissolved by an ...
made an effort to bring in an all-new set of laws with the ''Allgemeines Landrecht für die preußischen 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 The French Revolution of 1830, also known as the July Revolution (french: révolution de Juillet), Second French Revolution, or ("Three Glorious ays), was a second French Revolution after the first in 1789. It led to the overthrow of King ...
of 1830, revolutionary ideas of the
French Revolution The French Revolution ( ) was a period of radical political and societal change in France that began with the Estates General of 1789 and ended with the formation of the French Consulate in November 1799. Many of its ideas are conside ...
and Napoleon's laws as the Code civil the Code pénal and the Code d'instruction criminelle strongly influenced the German legal tradition, especially in the Grand Duchy of
Baden Baden (; ) is a historical territory in South Germany, in earlier times on both sides of the Upper Rhine but since the Napoleonic Wars only East of the Rhine. History The margraves of Baden originated from the House of Zähringen. 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
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project. The BGB served as a template in se ...
(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. After the war, the two newly emerged German states adopted two different legal systems. The socialist–communist
East Germany East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a country that existed from its creation on 7 October 1949 until its dissolution on 3 October 1990. In these years the state ...
tried to install new laws strongly influenced by communist and socialist ideology. The democratic state of
West Germany West Germany is the colloquial term used to indicate the Federal Republic of Germany (FRG; german: Bundesrepublik Deutschland , BRD) between its formation on 23 May 1949 and the German reunification through the accession of East Germany on 3 O ...
built on existing law. Most of the legal changes of 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 The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...
, so that many legal developments are taken out of the hand of the federal government and are decided in
Brussels Brussels (french: Bruxelles or ; nl, Brussel ), officially the Brussels-Capital Region (All text and all but one graphic show the English name as Brussels-Capital Region.) (french: link=no, Région de Bruxelles-Capitale; nl, link=no, Bruss ...
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 ''(Länder)'' 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 The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territor ...
and the
Republic of China (Taiwan) Taiwan, officially the Republic of China (ROC), is a Country, country in East Asia, at the junction of the East China Sea, East and South China Seas in the northwestern Pacific Ocean, with the China, People's Republic of China (PRC) to the n ...
are to some extent based on German law.


Public law

Public law (Öffentliches 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 "Über-Unterordnungs-Verhältnis" ("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 "Über-Unterordnungs-Verhältnis" failed in certain situations, e.g.: A parent is legally superior to a minor. The minor cannot sign any contract without a parent's consent. Following the old theory, this would be a case of "Überordnung", 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

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 Germany's constitution and the rights and duties of the various institutions. A major part are the
Civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...
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 Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which people, the people have the authority to deliberate and decide legislation ("direct democracy"), or to choo ...
,
Federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (provincial, state, cantonal, territorial, or other sub-unit governments) in a single po ...
and ''
Rechtsstaat ''Rechtsstaat'' (lit. "state of law"; "legal state") is a doctrine in continental European legal thinking, originating in Dutch and German jurisprudence. It can be translated into English as " rule of law", alternatively "legal state", state ...
sprinzip'', 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 court's work and often reshapes the legal process itself if the court 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 ('‘Länder’') and their branches.


Administrative law

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

The executive may act on grounds of the "Bürgerliches 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

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 ''Strafgesetzbuch'' (), abbreviated to ''StGB'', is the German penal code. History In Germany the ''Strafgesetzbuch'' goes back to the Penal Code of the German Empire passed in the year 1871 on May 15 in Reichstag which was largely identi ...
'' 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 not party of it. 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 (''Schöffen''). 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

Private law (''Privatrecht'') rules the relations between two private legal entities (for example, a buyer and a seller, an employer and an
employee Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any o ...
, 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

Civil law Civil law may refer to: * Civil law (common law), the part of law that concerns private citizens and legal persons * Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law ** Private la ...
(''Bürgerliches 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 (''
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project. The BGB served as a template in se ...
'', BGB), which consists of 5 major parts: the common/general part, the law of obligations, property law,
family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marri ...
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
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to ...
s 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 such contracts that place an undue burden on one party, to be invalid. 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 The euro (symbol: €; code: EUR) is the official currency of 19 out of the member states of the European Union (EU). This group of states is known as the eurozone or, officially, the euro area, and includes about 340 million citizens . ...
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

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 unsuccessful party to the extent that it did not prevail.


Comparative law

German law is a
civil law Civil law may refer to: * Civil law (common law), the part of law that concerns private citizens and legal persons * Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law ** Private la ...
system and is more driven by formal rules than common law systems such as the English law, where arguments can be made on the basis of common sense. However the principle of natural justice has been applied in instances where the formal interpretation of law leads to injustice such as the prosecution of
GDR East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a country that existed from its creation on 7 October 1949 until its dissolution on 3 October 1990. In these years the state ...
officials, or abortion.German courts are not required to follow the
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
of previous court decisions. Academic legal writing has more of a role in decision making in courts than in other legal systems, particularly
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
systems where decisions are nominally based on precedence from court decisions. Courts may change longstanding judicial principles based on academic writing.


See also

*
Judiciary of Germany The judiciary of Germany is the system of courts that interprets and applies the law in Germany. The German legal system is a civil law mostly based on a comprehensive compendium of statutes, as compared to the common law systems. In criminal an ...
– Germany's judicial system * Legal systems of the world * Japanese law, which is based heavily on German civil law * Copyright in Germany


Articles about specific German laws


References


External links


Introduction into the German law system
– History of German law, Organisation of the state, Sections of law, Sources of German law, Jurisdiction, Professions of law
"Law – Made in Germany"
– Semiofficial presentation of the German legal system
Centre for German Legal Information
– the gateway to German law in English
German Law Archive
* Almost the entir
federal law code
online. Semiofficial, provided by the Federal Ministry of Justice in cooperation with a federally controlled commercial legal information service/print publisher. ** Also provided ar
English translations
of dozens of the most important statutes.
Entwurf einer neuen Verfassung der DDR
{{DEFAULTSORT:Law Of Germany *