GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
Pfitzner Legal Kettenhofweg 98 60325 Frankfurt am Main Germany
Tel: +49 69 87 000 2900 Fax: +49 69 87 000 2999 Email: pfitzner@pfitznerlegal.com Web: www.pfitzner.legal
and commentaries are available on basically all stat- utes and legal matters. Academics are often quoted in judgments and pleadings and consulted by the parliament when new statutes are drafted or existing
1. General 1.1 General Characteristics of the Legal System The Federal Republic of Germany consists of 16 fed- eral states. While not only the Republic itself, but also every state, has the constitutional right to regulate pri- vate procedural and substantive law, almost all areas of private law are regulated exclusively by federal law. Being a civil law country, founded on the Roman law tradition, statutes are by far the most common source of law. The Civil Code and the Commercial Code, both implemented prior to 1900, are the most important substantive rulesets. These two codes have under- gone major changes over the years. In many cases they can be regarded as the basic structure of a legal matter, while additional statutes contain specific rules for certain legal issues. Influence of Case Law and Scholars Although governed by a civil law doctrine, the Ger- man legal practice is heavily influenced by German and European case law. Judicial precedents of the Federal Court of Justice and higher regional courts are largely recognised by the lower courts when applying the relevant statutes. There is no doctrine of a binding precedent (stare decisis) in Germany. However, the longer there is a coherent line of precedents by higher courts, the less likely it is that a lower court will deviate from the established case law. Furthermore, law scholars play an important role in legal debates. With their critical voices, they strongly influence the development of the law. Handbooks
statutes amended. Judicial Practice
In civil matters, the judicial practice generally takes an adversarial approach. As a basic rule, courts will only consider the facts presented by the parties. The submission of evidence is also the responsibility of the parties, and the court is strictly bound by what the parties submit to it. However, the taking of evidence is the task of the court only, and the judge plays the leading role in defining issues and supervising the proceedings. In special legal matters, such as custody or marriage, the adversarial principle is completely replaced by an investigative model. In general, a judgment can only be based on the facts presented orally at the hearing. However, procedural law allows the parties to refer to their written plead- ings in the hearing. Therefore, in practice, court pro- ceedings are mainly conducted by means of written submissions. 1.2 Court System The German court system is divided into five different jurisdictional branches: • “ordinary” courts dealing with civil and commercial matters and criminal matters; • labour courts; • administrative courts;
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