Understanding Germany's legal system (1)
In this and next month’s issue of MUNICH FOUND we will be looking at the German legal system. Here we shall give a general overview of the judicial structures in this country; next month will be devoted to practical advice and information. Roughly speaking the legal system in Germany distinguishes between Civil Law (Zivilrecht), Criminal Law (Strafrecht) and Administrative Law (öffentliches Recht). The concepts of Civil Law and Criminal Law will probably be familiar to most people from English-speaking countries. The field of Administrative Law, however, will be new. It includes, for example, laws concerning immigration, tax law and social law. The court structure in Germany consists of five major jurisdictions. By far the largest is the ordentliche Gerichtsbarkeit, which translated literally means “ordinary jurisdiction.” For historic reasons (in the past it was the only jurisdiction with trained judges) the ordentliche Gerichtsbarkeit covers the entire jurisdiction for civil (except for employment-related matters) and criminal matters—employment-related issues are dealt with by the Arbeitsgerichtsbarkeit. The Verwaltungsgerichtsbarkeit is the administrative jurisdiction covering all public law disputes of a nonconstitutional nature except for those that are subject to either the Sozialgerichtsbarkeit (courts having jurisdiction over social matters, such as disputes over welfare, etc.) or the Finanzgerichtsbarkeit (jurisdiction of the tax courts). As the Federal Republic of Germany is a republic of states, organization of the courts is shared between the Federation (Bund) and the 16 states (Länder). For each of the five major jurisdictions described above, Germany maintains supreme courts on the federal level in addition to the Federal Constitutional Court (Bundesverfassungsgericht). The constitution also provides for other federal courts, such as the Federal Patent Court. All other courts are run by the states; the law applicable in those courts is federal law as well as state law. First instance courts for civil litigation (the majority of cases and probably the ones most relevant to you) are—depending on either the amount in dispute or certain jurisdictions set by law (e.g. housing matters)—either the Amtsgericht (municipal court) or the Landgericht (district court). The court of appeal for those courts is either the Landgericht or the Oberlandesgericht (provincial high court). In Berlin, incidentally, the latter is called the Kammergericht. For a specific division of the Amtsgericht dealing with matters of family law, the Familiengericht (family court), the Oberlandesgericht acts as court of appeal. First instance court for employment-related matters is the Arbeitsgericht, and the court of appeal for it is the Landesarbeitsgericht. In civil cases handled at the Amtsgericht, where the amount being disputed does not exceed € 5,000, representation by an attorney is not obligatory for the litigants (Prozessparteien). Still, representation by an attorney might be recommended for two reasons: first, the official language in the Amtsgericht (as with all other German courts) is German. If your German is not sufficient, it could turn out to be very difficult to follow the court procedure and to represent yourself at the same time in an adequate fashion. Secondly, language skills are not everything. Lawyers deal with various personal, business, property and family-related issues and transactions on a daily basis. No one else has the training and experience to advise and represent you in an adequate fashion on issues relating to the law. For example, as a non-lawyer you might not know what evidence to collect and what to bring to court. Generally, receiving legal advice and involving a lawyer early on can spare you anxiety and save you money. In addition, your opponent might be represented by a lawyer, which would automatically put him in a stronger position. Part 2 follows next month.