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FRANÇAIS
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THE BASIC LAW
THE CONSTITUTIONAL BODIES
THE LEGAL SYSTEM
FEDERALISM & SELF-GOVERNMENT
PARTIES & ELECTIONS
COUNTRY AND LANDSCAPE
THE "LÄNDER" (STATES/COUNTRIES)
THE PEOPLE
THE STATE OF HAMBURG
HISTORY UP TO 1945
HISTORY PAST 1945
HAMBURG HISTORY
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The legal system


The law of the Federal Republic of Germany is predominantly written law. It meanwhile applies to virtually all aspects of life; as a result, legislation today consists of adjustments and amendments to existing law. Germany’s legal system has been shaped by constitutional law but is also influenced by the law of the European Communities and international law. The body of federal law encompasses approximately 1,900 acts and 3,000 statutory instruments. The states, too, pass laws, mainly on such matters as the police, local government, schools and universities as well as the press, radio and television.

During the four decades when the country was divided, the legal systems of the Federal Republic of Germany and the German Democratic Republic (GDR) became totally different. The decision was taken in 1990 to merge the two legal systems as soon as possible after the GDR’s accession to the Federal Republic. This was also of fundamental importance for the process of economic recovery in the country’s new states. Extensive adjustments were made in nearly all fields of law in order to take account of the special situation in the GDR and the existing system. The adjustments in the structure of the courts have meanwhile been completed.

A state based on the rule of law. German law goes back partly to Roman law and partly to numerous other legal sources in the German regions. In the 19th century, a uniform system of private law was created for the first time. It applied to the entire German Empire. The Civil Code and Commercial Code to this day preserve the liberal spirit of those times. Their underlying principle is freedom of contract.

The guarantees afforded by a democratic state are manifest above all in substantive and procedural law. Criminal law proceeds from the constitutional premise that no act is punishable unless declared so by law before it was committed. Thus judges may not make up for gaps in penal law by applying legal provisions which cover similar cases, nor may they apply laws retroactively. Another principle embedded in the constitution is that no one may be punished more than once for the same offense. Personal liberty may not be restricted except on the basis of a formal law. Only a judge may determine whether a person’s imprisonment is justified, and only he can decide for how long. Whenever a person is detained without a judicial warrant, the matter must be brought before a judge for decision without delay.

Although the police may hold someone in temporary custody, they may not detain him any longer than the end of the day following the arrest. Everyone has a right to a court hearing – that, too, is guaranteed by the constitution and is a fundamental principle of the rule of law. The administration of justice is entrusted to independent judges who are answerable to the law only. They may not be dismissed from office nor transferred against their will. Special tribunals are banned.

Nearly all of these fundamental principles had already been established by the judiciary laws of the 19th century. They include the Courts Constitution Act, which governs the structure, organization and jurisdiction of the courts, the Code of Civil Procedure and the Code of Criminal Procedure.

The Civil Code, which entered into force in 1900, and the Codes of Civil and Criminal Procedure were wrested by liberal and democratic forces from the imperial government towards the end of the last century after a long drawn-out struggle in parliament.

German codified laws have found their way into foreign legal systems as well. The Civil Code, for instance, was the model for its Japanese and Greek counterparts.

The citizen and public administration. After an evolutionary period of more than 100 years, the Basic Law set the seal on a comprehensive system of legal protection against the actions of public authorities. It enabled the citizen to challenge any measure that affected him on the ground that it violated his rights. This applies to any administrative act, be it a tax assessment notice or a decision whether or not to promote a school pupil to the next grade, be it the withdrawal of a driving license or the refusal of a building permit.

Administrative courts were unknown in the GDR. Now administration in the new states, too, is subject to overall control by the courts.

The legal protection afforded by the courts with subject matter jurisdiction is complemented by a right of complaint to the Federal Constitutional Court. This “constitutional complaint“ is open to every citizen and is an extra form of legal redress against any violations of basic rights by a public authority. The complainant must show that one of his basic rights has been infringed by a public act, for instance a court decision or an administrative measure but also a law. Normally, such complaints may only be lodged after all other remedies afforded by law in the courts with subject matter jurisdiction have been exhausted.

Social justice. The Basic Law prescribes the development of the social-state order, hence much greater consideration is now given to the people’s social needs than in former times. In the years since the creation of the Federal Republic, a whole range of special labor and social legislation has been enacted to provide the citizen with various financial benefits in the event of sickness, accident, invalidity and unemployment, as well as after retirement.

Labor law is a good example of how the social-state principle has been put into effect. Originally, these matters were only briefly dealt with under the heading of “service contracts“ in the Civil Code. Today, labor legislation embraces an abundance of laws and collective agreements but is also largely based on case law. It includes in particular the Collective Wage Agreements Act, the Protection against Dismissal Act, the Act on the Constitution of Business and Industrial Enterprises (Works Constitution Act), as well as the various laws on codetermination and the Labor Courts Act.

Court structure and the legal profession. The Federal Republic’s courts are largely specialized and provide full legal protection. They fall into five categories:

• The “ordinary courts“ are responsible for criminal matters, civil matters (such as matrimonial or family proceedings as well as disputes arising under private law such as sale or lease agreements) and non-contentious legal proceedings, which include conveyancing, probate and guardianship matters. There are four levels: the local court (Amtsgericht), the regional court (Landgericht), the higher regional court (Oberlandesgericht) and the Federal Court of Justice (Bundesgerichtshof). In criminal cases, depending on their nature, each of the first three courts can have jurisdiction, whereas in civil proceedings it will be either the local court or the regional court. One or two other courts may be appealed to on points of fact or law.

• The labor courts (three levels: local, higher – i.e. state – and federal) handle disputes arising from employment contracts and between management and labor, as well as matters covered by the Works Constitution Act. The labor courts decide, for instance, whether an employee has been fairly or unfairly dismissed.

• The administrative courts (local, higher and federal) handle all proceedings under administrative law that do not fall within the jurisdiction of the social and finance courts or, in exceptional cases, the ordinary courts (e.g. cases of official liability), or do not involve disputes which fall under constitutional law.

• The social courts (local, higher and federal) rule on all disputes concerned with social security.

• The finance courts (state and federal) deal with taxation and related matters.

Separate from the aforementioned five types of courts is the Federal Constitutional Court, which is not only the country’s supreme court but also an organ of the constitution. It rules on constitutional disputes.

There is a complex system of appeals which affords numerous possibilities for judicial review. There are two stages in the appeal procedure. In the first (Berufung), the case can be reviewed both as regards the facts and points of law, i.e. its merits. Thus at this level new evidence can still be introduced. In the second stage (Revision), however, the court will only consider whether the law has been properly applied and the essential procedural formalities observed.

In the Federal Republic there are approximately 20,000 professional judges, more than three quarters of whom are assigned to the ordinary courts. Most judges are appointed for life and in exercising their profession are bound only by the spirit and letter of the law.

At the local court level, most non-contentious legal proceedings are handled by judicial officers, who are not judges but rather higher intermediate-level civil servants in the judicial service. In several types of courts, lay judges sit with the professional judges. Their experience and specialized knowledge in certain fields, such as labor and welfare matters, enable them to help the courts make realistic decisions. They are also a manifestation of the citizen’s direct responsibility for the administration of justice.

The public prosecutors, who number about 5,000, are for the most part concerned with criminal proceedings. It is their responsibility to establish the facts where a person is suspected of a crime. They decide whether to discontinue the proceedings or to indict the person concerned. In court proceedings they are the prosecuting counsel. Unlike judges, public prosecutors are not personally and objectively independent; they are civil servants and are therefore under orders from their superiors – though within very narrow limits.

About 100,000 lawyers are self-employed professionals and serve as independent counsel in all fields of law. Through representation of their clients in court they play a large part in the administration of justice. They must adhere to their professional code, and any violations are dealt with by disciplinary tribunals. All professional judges, public prosecutors and attorneys at law must have the qualifications of a judge; in other words, they must have successfully completed the course of study at a university law school and the compulsory course of practical training which follows, each of which ends with a state examination.

Data protection. The advance of automated data processing (ADP) in almost every area of life in the modern industrial society has created new problems for the judicial system. Today computers are used to maintain bank accounts, to book seats on aircraft, to issue tax notices or to collate crime data at police headquarters. ADP has become indispensable in nearly all fields of administration and makes it possible to store huge quantities of data in such a manner that they can be retrieved at any time via global networks as well. Modern communications technologies have greatly eased the workload of many companies and public authorities and are in the process of transforming our society into a global information society.

Modern data technologies harbor risks as well, however. Stored data can be put to improper use and fall into the hands of unauthorized persons. Anyone with sufficient quantities of data has access to information on a person’s private life, which must remain inviolable. Federal and state legislation has been enacted in Germany to safeguard the community against this danger. The laws specify how public authorities and private bodies (business firms, for example) must handle personal data.

The staff of bodies which process data are required to maintain confidentiality. People are legally entitled –?with just a few exceptions?– to find out what data concerning them is held by any body which processes data. They can demand correction of incorrect data and have any that are disputed blocked or any that have been improperly obtained erased.

On a proposal from the Federal Government, the German Bundestag elects a Federal Commissioner for Data Protection with over half of the statutory number of its members. The person elected is then appointed by the Federal President. The Commissioner’s task is to advise the Federal Government and the Bundestag on points of data protection law pertinent to the legislative procedure, monitor the handling of personal data by federal authorities and make recommendations to these authorities for improving data protection. Any person who feels that his personal data have not been adequately protected by federal authorities may lodge a complaint with the Federal Commissioner for Data Protection. Every two years the Commissioner submits an activity report to the Bundestag.

Each of the states, too, has a commissioner for data protection. Business enterprises which process data must likewise have a company data protection officer. Private companies’ compliance with data protection provisions is monitored by the supervisory authorities pursuant to the Federal Data Protection Act; as a rule, there must be grounds for such monitoring.

The constitutional significance of data protection emerged in a 1983 ruling of the Federal Constitutional Court. It held that under Article 2 of the Basic Law the citizen has the right to determine himself whether his personal data may be disclosed and how it may be used. As a consequence of this ruling, the Federal Data Protection Act was updated and area-specific data protection regulations were created (in the Social Code, for instance, in the law pertaining to registration and in the police laws).

The Federal Republic of Germany has some of the world’s most up-to-date and comprehensive data protection legislation. It has helped increase public awareness of the need to protect the individual’s right to privacy.

In 1995 an EU directive on data protection was issued which was decisively influenced by German law. The directive, which was implemented in national law by the end of 1998, above all improves the legal position of the individual vis-à-vis private firms. This is imperative in view of the globalization of the economy, growing international connectivity and new technologies (chip cards, video and multimedia, for instance).


DEUTSCH
ENGLISH
ESPAÑOL
FRANÇAIS
.
THE BASIC LAW
THE CONSTITUTIONAL BODIES
THE LEGAL SYSTEM
FEDERALISM & SELF-GOVERNMENT
PARTIES & ELECTIONS
COUNTRY AND LANDSCAPE
THE "LÄNDER" (STATES/COUNTRIES)
THE PEOPLE
THE STATE OF HAMBURG
HISTORY UP TO 1945
HISTORY PAST 1945
HAMBURG HISTORY
X
X
X


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