German History and Law (1918 – today) Germany Today (since 1990) In 1990, Germany finally reunified when the GDR peacefully joined the West German Federal Republic of Germany. After reunification, the Basic Law remained in force. It is now the constitution of the unified Germany, and – accordingly – the foundation of german law.
Constitutional Framework: German Basic Law Basic Rights Legislative Powers and Legislation of the Federation Federal Government Judiciary
Constitutional Framework: German Basic Law Basic Rights • Freedom of expression, Art. 5 GG • Every erson shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no consorship. • These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor. • Art and scholarship, and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
Basic Rights • Freedom of assembly, Art. 8 GG • All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission. • In case of outdoor assemblies, this right may be restricted by or pursuant to a law.
Basic Rights • Freedom of faith, conscience, and creed, Art. 4 GG • Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be invoilable. • The undisturbed practice of religion shall be guaranteed. • No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.
Basic Rights • Occupational freedom; prohibition of forced labor, Art. 12 GG • All Germans shall have the right freely to choose their occupation or profession, their place of work, and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law. • No person may be required to perform work of a particular kind except within the framework of a traditional duty of community service that applies generally or equally to all. • Forced labor may be imposed only on persons deprived of their liberty by the judgement of a court.
Basic Rights • Property, inheritance, expropriation, Art. 14 GG • Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. • Property entails obligations. It s use shall also serve the public good. • Expropriation shall only be permissible for the public good. It may only be ordered by or pusuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.
Basic Rights • General personal freedoms, Art. 2 GG • Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. • Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.
Basic Rights • Equality before the law, Art. 3 GG • All persons shall be equal before the law. • Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for woman and men and take steps to eliminate disadvantages that now exist. • No person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinion. No person shall be disfavored because of disability.
Constitutional Framework: German Basic Law Basic Rights Structure of Basic Rights Freedom Equality Human Rights Civil Rights Expression Assembly Property Occupation Faith
Constitutional Framework: German Basic Law Legislation and Legislative Powers of the Federation Federation exercised it s legislative power in almost all areas of business law German Private Law German Civil Code BGB Mercantile Law Labour Law Industrial Law German Commercial Code (HGB) Mother´s Protection Law (MuschG) Competition Law (UWG and GWB) Protection Law against unwarrented dismissal (KSchG) Intellectual Property Rights (PatG, UrhG etc)
Constitutional Framework: German Basic Law Federal Government The Cabinet of Germany (German: Bundeskabinett, Bundesregierung) is the chief executive body of the Federal Republic of Germany. It consists of the Chancellor and the cabinet ministers. The details of the cabinet's organization are set down in articles 62 to 69 of the Basic Law. Article 64 Paragraph 2 states that the Chancellor and the ministers have to be sworn in when taking office. The Chancellor is responsible for guiding the cabinet; the Chancellor decides what direction their policies will take and bears the responsibility. The cabinet ministers have the freedom to carry out their duties independently but must follow the Chancellor's directive. This is known as the Ressortprinzip or principle of departmentalization. The Chancellor decides the scope of each minister's duties. If two ministers disagree on a particular point, the cabinet resolves the conflict by majority vote (Kollegialprinzip or principle of deference). The Chancellor directs the government's administrative affairs. Details are laid down in the government's Geschäftsordnung (rules for internal procedure) which states, for example, that the cabinet has quorum if at least half of the ministers including the chair are present.
Judiciary Germany has an independent judicial branch. Since the independence of the judiciary of Germany is historically older than democracy in Germany, the organization of courts is traditionally strong, and almost all state actions are subject to judicial review. Besides a so-called "ordinary" judicial branch that handles civil and criminal cases, which is in turn comprised of four levels of courts up to the Bundesgerichtshof in a fairly complex appeals system, there are separate branches for administrative, tax, labour, and social security issues, each with their own hierarchies. Courts are generally in the hands of the states, except for the highest courts of each branch, which are federal, respectively, to maintain a certain degree of unity in jurisdiction.
Judiciary Federal Constitutional Court "ordinary" judicial branch Administrative Branch Federal Court of Justice Federal Administrative Court Federal Level Appelate Court (Oberlandesgericht) Higher Administrative Court (Oberverwaltungsgericht) District Court (Landgericht) Administrative Court (Verwaltungsgericht) Local Court (Amtsgericht) State Level
The Federal Constitutional Court (Bundesverfassungsgericht) is a special court established by the German Basic Law. The sole task of the court is judicial review. It may therefore declare public acts unconstitutional and thus render them ineffective. Most importantly, the Court does not serve as a regular court of appeals from lower courts or the Federal Supreme Court (BGH) as a sort of “superappellate court” on any violation of federal laws. Its jurisdiction is focused on constitutional issues, the integrity of the Basic Law and the immediate compliance of any governmental institution in any detail. Even constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Basic Law. The court ist also concerned with Constitutional Complaints (Verfassungsbeschwerde): any person may file a complaint alleging that his or her constitutional rights (basic rights) were violated. Judiciary Federal Constitutional Court
Judiciary Ordinary judicial branch and Administrative Courts Ordinary judicial branch Administrative Courts Private Law Public Law Criminal Law
Judiciary Private Law Public Law The law concerning anybody and not exclusively a public athority. Examples: lease contract (Mietvertrag), contract for services (Dienstvertrag). The law executed by government is a privelege of public authority. Examples: tax assessment (Steuerbescheid), administrative fine (Bussgeldbescheid). Administrative Branch Ordinary judicial branch
Judiciary Private Law Public Law The law concerning anybody and not exclusively a public athority. Examples: lease contract (Mietvertrag), contract for services (Dienstvertrag). The law executed by government is a privelege is a privilege of public authority. Examples: tax assessment (Steuerbescheid), administrative fine (Bussgeldbescheid). Leading Principle Leading Principle Whenever a governmental authority engages a legal privilege and prejudices a right of a person, the governmental authority has to state a reason. Every person shall have the right to create his legal relationships as he wants to. He does not have to justify his acts.
Conclusion Legislation Federal Government Judiciary Enacts statutes Executes statutes Controls Government