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Law of Germany

The law of Germany (German: das Recht Deutschlands), that being the modern German legal system (German: Deutsches Rechtssystem), is a system of civil 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 (Bürgerliches Gesetzbuch, or BGB) were developed prior to the 1949 constitution. It is composed of public law (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, such as the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.

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.gA 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 it means 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.،

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, 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 (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, 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 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.

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 judgment 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 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 officials, or abortion.  German courts are not required to follow the precedent 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 systems where decisions are nominally based on precedence from court decisions. Courts may change long standing judicial principles based on academic writing.

Law of Germany
Rayhana Mahrous


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