Introduction into the German law system - Civil law

1. History of civil law

Like legal systems of other countries, German civil law was strongly influenced by the interpretation and adaptation of Roman law between the 13 th and 15 th century. Law schools in Italy specialized in research about the Corpus Iuris Civilis. This collection of laws was completed under the Eastern Roman emperor Justinian in the 6 th century. Juridical scholars as Bartolus de Saxoferrato (1314-1357) and Baldus de Ubaldis (1327-1400) founded the School of Commentators which furthered a practice-orientated annotation of juridical texts. Some German students studied the methods of jurisprudence in Italy. In Germany, Roman law was mostly used in cases for which local legal systems had no sufficient solutions. At the time of Enlightenment rationalism was of great importance for legislation. Roman laws were given modern interpretations in the usus modernus. Outstanding codes of law at that time were the Prussian General Code (PreussischesAllgemeines Landrecht, ALR) of 1794 and the French Code Civil of 1804. The latter was adopted by some German-speaking countries like the Great Dukedom of Baden. In the time of Enlightenment rational thinking was preferred; only legal statements seen as rational and eternally valid were considered as true. At the beginning of the 19 th century members of the Historical School of Legal Thinking as Carl of Savigny (1779-1861) opposed this opinion and supported a return to Roman law. Scholars as Otto of Gierke (1841-1921) developed an independent German private law; new concepts like the cooperative (Genossenschaft) were invented and – affected by the industrialisation – supplemented with social ideas. On 1 st January 1990 the Civil Code (BürgerlichesGesetzbuch, BGB) came into force. This book of law is still in use, though it underlies constant changes.

2. Today´s civil law

The German Civil Code (BGB) consists of five books starting with the Book of General Provisions. The regulations of this part apply to the other four books. It defines natural and juristic persons, regulates the law of private clubs or associations and specifies which persons do or do not have the capacity to perform juristic acts. An important section deals with declarations of will, which are for example made when a contract is concluded. The Book of General Provisions defines the conditions and time limits under which declarations of will can be legally contested. Representation and power of attorney are other topics of the Book of General Provisions. Important rules concern the time limitation of claims. Civil claims may be asserted within 30 years; there are shorter time limitations for certain kinds of claims.

The second book – the law of obligations – regulates the relations between persons. Most important in this section are contracts and the legal consequences of civil wrongdoings. § 242 BGB contains a central rule: It declares that the owed benefit has to be performed in the way demanded by good faith. This is a general rule for cases which are not solved by other regulations. § 249 BGB and the following rules define the compensation for damages and its extent. The second book also contains rules about special obligational relations like the contract of sale and the contract of lease or hire. The rules of labour law can be found in §§ 611 ff. BGB.

The third book concerns the law of property, which deals with the relations between persons and (both movable and immovable) things. It distinguishes between possession and ownership. Property law contains the central regulations about ownership and sale of realties. Legal concepts like mortgages and land charges are described. The fourth book contains the regulations of family law, which includes rules about engagement, marriage, divorce, alimony and laws on children. The fifth book is about the law of succession. It regulates the legal succession, the last will and the work of the executor of the last will.

3. Civil procedural law

The Civil Procedure Act (Zivilprozessordnung, ZPO) specifies that a legal action against a person has to be sued at the defendant‘s location of residence. The court of jurisdiction for juristic persons is defined by the place of their administration. The court of jurisdiction for branches of greater companies can be the court at the location of the branch. For special cases exist special courts of jurisdiction, e.g. for legal actions against debts on real estate. In this case the competent court is the court at the location of the real estate. The Civil Procedure Act (ZPO) defines which persons are entitled to take legal action. If a number of persons want to take legal action in the same matter, they can proceed together as companions in the legal action. According to § 78 ZPO, at the civil courts (except from the local courts) the involved parties have to employ lawyers. For certain family matters – e.g. a divorce at the family-department of the local civil court – lawyers are required, too. This is different with the local labour courts; at the higher stages of appeal lawyers are necessary in labour law matters as well.

Which court is competent depends on the amount in controversy. For legal actions with claims for up to € 5000 or rental matters the local civil courts (Amtsgericht, AG) are competent. If the claim surmounts € 5000 the legal action has to be taken to the Landgericht. This is regulated by the Law on the Constitution of Courts (§ 23 Gerichtsverfassungsgesetz, GVG).

According to the ZPO, generally the losing party has to pay the expenses of the legal action. If there is only a part-defeat, the expenses are divided between the parties at the rate of their winning or losing of the case. The exact calculation of the court expenses is regulated by the Law on Court Fees (Gerichtskostengesetz, GKG), the fees of lawyers depend on the scale of lawyer fees (Bundesrechtsanwalts-Gebührenordnung, BRAGO). Financially weak parties may apply for a legal aid by the state.

The Procedure Act also regulates the complete course of the court procedure from the handing in of the legal action to the decision. It also contains regulations about the hearing of evidence. Evidence can have the form of an inspection of a location, the hearing of witnesses and experts, of private or public documents and the hearing of the parties. The judge can make the parties or witnesses swear to speak the truth. Both perjury and false statement in court are criminal offences with different threats of punishment.

The ZPO also contains regulations about the right of resort to a higher court. In civil law the stages of appeal are: complaint (Beschwerde), appeal (Berufung) and revision (Revision). A complaint can be used against decisions of courts or authorities which are not court sentences. The appeal is a means against a court sentence; with an appeal the sentence is examined in formal and factual matters and often a second hearing of evidence is necessary. The revision (Revision) against the sentence of the court of appeal examines the sentence only in formal matters. In every stage of appeal legal action has to be taken to the court one level above the court from which the sentence originates.

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