I. Background
Unification occurred on October 3, 1990. The successor state
of the Federal Republic of Germany is a federation of 16 states or Lander, five
from the former German Democratic Republic. Germany is federal
parliamentary republic organized into three branches of government. The
executive is headed by the President, who is more than a figurehead, but has
less authority than the President of the French Republic. Executive power
is centered in the Chancellor and his cabinet. The legislative branch is
bicameral, consisting of the lower house (the Federal Assembly or Bundestag) and
the upper house (the Bundesrat). The Bundestag is the more powerful of the
houses.
II. Legislation
After a law is signed, it must be published in the Federal Gazette
(official gazette), Bundesgesetzblatt (cited BGBl) (KK10.G47x). State law
is published in the local gazette (Gesetz-und Verordnungsblatt). Federal
statutes become effective by virtue of their publication, unless otherwise
indicated. Statutes issued from 1871 to 1945 appeared in the
Reichsgesetzblatt. The Bundesgesetzblatt is issued in two
parts. Part I (Teil I) contains legislation, including administrative
regulations and other important government pronouncements. Statutes and
codes must also be published here. Part I typically appears once a
week. Part II (Teil II) contains treaties and other international
agreements, as well as agreements between the Federal government and the
states. Regulations are published in the Bundesgesetzblatt or in
the Federal Bulletin (Bundesanzeiger, cited BAnz). The
Bundesanzeiger contains lesser ministerial decrees of the Federal
Republic, regulations of the states that are of general interest, as well as
announcements, circulars, etc. For certain regulations to be valid, notice
of its publication in the BAnz must appear in BGBl.
Selected full-text Federal legislation appears (in German) at Gesetze im Internet. For an
alphabetical list of available legislation, click on the Gesetze/Verordnungen
link on the left.
The German Law Archive has some
translations of German statutes. See also German Laws in English
Translation.
III. Constitution
The constitution of Germany is often referred to as the Basic Law (Grundgesetz, cited CG). The translated text of the constitution can be found in Constitutions of the Countries of the World (K3157.A2 B58). Each state also has its own constitution, but these constitutions are not widely available.
An English version of the constitution of Germany (as well as other German legal materials) may be found on the Web at http://www.servat.unibe.ch/law/icl/gm__indx.html.
IV. Codes/Statutes
The German legal system is based on the civil law tradition which
has at its core five codes: civil, civil procedure, commercial, criminal,
and criminal procedure. There are two sources of law in Germany -statute
and customary.
1. Statute (Gesetz) - includes the constitution, the codes and any
additional statutes. This also includes regulations of the
Federation, the Ministries of the Federation and the states. Local by-laws
and rules are not considered Gesetz.
2. Customary Law (Gewohnheitsrecht) - includes all general public practice
recognized as binding. Now a very limited source of new
law.
As a member of the European Union, Germany must also incorporate EU
law into its legal system. This body of law will not be discussed in this
guide.
1. Civil Code
The most important source of law is the German Civil Code
(Burgerliches Gesetzbuch, cited BGB) of 1896, Reichsgesetzblatt, p.
195. The civil code is divided into 5 books: the general part,
obligations, property, family, and inheritance. There is an English
translation available, The German Civil Code (as amended to January 1,
1992), S.L. Gosen (tr.) (Reserve, KK985 .51896 A52 1994). A recent
German commentary is Burgerliches Gesetzbuch: mit Einfuhrungsqesetz, O.
Palandt, (1998). (KK985 .51896 A6 P35). The German Federal Ministry of
Justice has a translation of the first two books here: http://www.gesetze-im-internet.de/englisch_bgb
Another version of selected provisions from Books I and II of the German Civil Code is also
on the web.
An English translation of some recent civil statutes, including the recent
Law of Obligations and portions of the Standard Contract Terms Act, is on the
web at the German Law
Archive (http://www.iuscomp.org/gla/index.html).
2. Code of Civil Procedure
Zivilprozessordnung (ZPO) of 1877 in Reichsgesetzblatt, p. 97.
The consolidated text of 1950 is in Bundesgesetzblatt Teil I, p.
533. Translated version is Code of Civil Procedure Rules of the Federal
Republic of Germany, S. Goren (KK3815.5 1877.A6 A52 1990), but note that
this Code has been significantly changed. A recent German commentary is
Zivilprozessordnung, J. Albers (2004) (KK3815.51877 A6 A42x 2004).
3. Commercial Code
Handelsgesetzbuch (HGB) of 1897 in Reichsgesetzblatt, p. 219.
Translated version, The German Commercial Code, S. Goren (2nd ed.
Rev.) (RESERVE KK2045.51897.A52 1998). See also Business
Transactions in Germany (KK2086.B87 1983-), which contains commentary
and translated legislation, and German Commercial Code, M.
Peltzer (3rd rev. ed.) (KK2045.51897 A5213 1995). A German commentary is
Handelsgesetzbuch, A. Baumbach (KK2045.51897A7G47 1995).
English translations of some commercial statutes are on the web at the German Law Archive (http://www.iuscomp.org/gla/index.html).
4. Criminal Code
Strafgesetzbuch (StGB) of 1872, last revised in 1987. Consolidated text
in Bundesgesetzblatt Teil I, p. 945 and 1,160. Translated version,
The Penal Code of the Federal Republic of Germany (KK7975 .51871
A52 1987). See also German Criminal Law, G. Harfst (tr.)
(KK7975.51871.A52 1989). A recent German commentary is Strafgesetzbuch
und Nebengesetze, E. Dreher (KK7975.519871.A6D73 1993).
An English
translation of the Criminal Code is on the web at the German Law Archive (http://www.iuscomp.org/gla) (choose
"Statutes").
5. Code of Criminal Procedure
Strafprozessordnung (StPO) of 1877, revised in 1987 in
Bundesgesetzblatt Teil I p.1,074 and 1,319. Translated version, The
German Code of Criminal Procedure (KK9405 .51877 A6 N5413x 1965). See also
Comparative Criminal Procedure ( KJC9405.C66x 1996). A recent German
commentary is Strafprozessordnung, Kleinkrucht (KK9405 .51877A6K53x
1995).
An English translation of the Criminal Procedure Code is on the web at the German Law Archive (http://www.iuscomp.org/gla) (choose
"Statutes").
There is no current official codification of German laws. The most
widely used unofficial compilation of most in-force legislation is Deutsche
Gesetze, H. Schonfelder (KK35.5.S34 1994)). Commonly known as
"Schonfelder." This looseleaf publication has a subject index and is
arranged by code in order of importance, ie. Basic Law, then the Civil Code,
etc. Most codes are published commercially and contain comments and
annotations. These are called "Kommentare" or commentaries and are very
highly respected in Germany. Several commentaries are listed above.
The Schonfelder and commentaries are only available in German.
Besides the translations listed above, there are many more English
translations of German codes and laws available. Listed below are some of
the most frequently used sources as well as relevant MNCAT subject
searches. These subject searches will retrieve both English and German
language materials. Please note that all translations should be taken with
"a grain of salt" because nothing is as authoritative as the original source.
Administrative Law
German Administrative Law in Common Law Perspective (KK5580.S56 2001)
European Administrative Law (KJE5602.S3913 2002)
s =
Administrative law Germany
Antitrust Law
German Antitrust Law (KK6456.M84 1999)
Commercial Laws of
Europe (KJC2041.3C66x)
Competition Law in Western Europe (K3856
.C65)
Business Transactions in Germany (KK 2086 .B87 1983)
s =
Antitrust law Germany
s = Antitrust law Europe
s = Competition law
Germany
Banking Law
German Banking Law (KK2188.A27196 A4 1990)
German Banking
System: An Introduction (KK2188.G465x 1986)
s = Banking law--Germany
Business and Commercial Law
Commercial Laws of the World (K1004.15. 1976)
Business Law Guide
to Germany (KK2058 .B87x 1988)
European Business Law (KJE2044.95
1991)
Commercial Laws of Europe (KJC2041.3C66x)
Digest of
Commercial Laws of the World (K1005.4.D54 1966)
Doing Business in
Europe (KJE959.B87D63 )
Business Transactions in Germany (KK
2086.B87 1983)
s = Commercial law Germany
s = Commercial law Europe
Intellectual Property
Industrial Property Laws and Treaties (K1500 .A48 1978)
Copyright and Related Rights Laws and Treaties
(K1411.6.C66x 2001)
German Industrial Property, Copyright and Antitrust
Laws (KK2636.A25 1996)
International Copyright Law and Practice
(K1420.5 .I58x 1988)
World Patent Law and Practice
(K1504.15.W67x)
s = Copyright Germany
s = Industrial
property Germany
s = Copyright, international
s =
Intellectual property (international law)
s = patents (international
law)
s = intellectual property (international law)
Labor Law
Labour Law and Industrial Relations in the Federal Republic of
Germany
(KK2860.W46x 1987)
International
Encyclopaedia for Labour Law (K1705.I57)
s = Labor laws and
legislation Germany
s = Labor laws and legislation, international
Real Property
Real Property in Germany (KK1323.R4 1991)
s = Real
property and taxation Germany
Taxation
Tax Laws of the World (KK 7104.5 1973x)
German Tax
& Business Law Guide (KK7105.6.G47)
European Taxation
(KJC 7101.3 .E87x).
s = Taxation Europe
s = Taxation law and
legislation Germany
To locate a translation or more information on a specific law or a specific
topic, see Foreign Law: Current Sources of Codes and Legislation in
Jurisdictions of the World, Reynold and Flores (Reference Office K38 .R49
1989). Other sources for information about the legal system and legal
research, see Charles Szladits Guide to Foreign Legal Materials: Germany
(KK76.K43x 1990), 2nd ed.), German Legal System & Laws
(KK147 .F67 2002) Germain's Transnational Law Research (Reference Office
K85 .G47), Modern Legal Systems Cyclopedia (Ref. K530.M62 1984).
There are many journal and law review articles which also discuss various
aspects of German law; see part VI of this guide.
The German Law Archive has some
translations of German statutes. See also German Laws in English
Translation.
The full text of all federal statutes published in the
Bundesgesetzblatt (KK10.G47x) may be obtained from the Web at http://www.jura.uni-sb.de/BGBl/suche.html.
This Web site is in German and requires one to know the title of the statute.
Another site for German law is available at Juristisches Internetprojekt
Saarbrücken (http://www.jura.uni-sb.de/Gesetze/).
In 2004, Lexis added Rechtssammlung, a database of business-related laws.
Laws are in German only. Lexis is available only to the Law School
students and faculty.
Selected English excerpts of a number of German codes are located on the
Internet. The University of Oxford, Institute of European and Comparative
Law provides a German Law Archive at
http://www.iuscomp.org/gla. The
Archive publishes cases, statutes, literature and bibliographies on German law
in English language. Here you will find statutes related to civil law,
commercial law, environmental law, and media law. Also of interest
at the German Law Archive is the Bibliography of German Statutes in English
Translation – Index. See also German Law: Resources in English at http://www.jura.uni-sb.de/english/glsindex.html.
V. Cases
Precedence does not exist formally in Germany. Cases do have binding authority over the parties, but not on future cases. Cases do, however, have persuasive value and lower court judges are aware of higher court decisions. Generally, English translations of German cases are not available.
The judicial structure consists of both Federal and state courts. The Organization of the Courts Act (Gerichtsverfassungsgesetz, cited GVG) is the principal piece of legislation for the courts. Also translated as the Judicature Act and the Constitution of the Courts Act. The main duty of the Federal courts (Bundesgerichte) is to act as the final appeals court for the state courts and to ensure the uniform interpretation and development of law in Germany. The courts of first instance handle state law questions. There are also specialized courts: administrative, labor, social and finance.
The Federal Constitutional Court (Bundesverfassungsgericht) has jurisdiction over constitutional disputes between states and the Federal government and over disputes among the Federal Constitutional organs in matters of basic rights. This court also has jurisdiction over disputes concerning constitutionality of laws.
Cases are not published by the government or even recognized by statute. The courts release for publication those decisions that are deemed important. The only truly official publication are certain judgments of the Federal Constitutional Court, published in the Bundesgesetzblatt.
Federal Supreme Court
Cases are published in two series, civil and criminal:
Entscheidungen des Bundesgerichtshofes in Zivilsachen (KK 989.B86x)
Entscheidungen des Bundesgerichtshofes in Strafsachen (KK7980.3 B86)
Every 10 volumes contains a cumulative index and there is a topical index to decisions, an alphabetical subject index, and an index to the statutes construed.
s= Law reports, digests, etc--Germany
Federal Constitutional Court
Entscheidungen des Bundesverfassungsgericht (KK4446.5. B86x)
The final issue for each year has an index of statutes construed, a subject index, and a chronological index. There is also a cumulative index every 10 volumes.
s = Law reports, digests, etc--Germany Because of the tremendous volume of German jurisprudence, privately published law journals are a valuable source for decisions. Some of the more important journals are Juristenzeitung (shelved alphabetically by title, 4th floor, For-S), Neue Juristische Wochenschrift (K.4.E87x) and Fundheft fur Offentliches Recht (KK4413.A1F86x). Each journal has some sort of subject or chronological index of decisions and an index of statutes construed.
Decisions of the Bundesgerichtshof (http://www.bundesgerichtshof.de/entscheidungen/entscheidungen.php), the Supreme Court, are now online as full text PDF documents. Coverage begins January 1, 2000.
Detailed discussions of Constitutional Court cases from 1951 to the present may be found on the Web at http://www.uni-wuerzburg.de/glaw/. Although this site is predominantly in German, brief English abstracts for each case are also provided. Cases are listed by date, docket number and parties involved.
A limited number of English translated judgments of the Federal Constitutional Court, the Federal Court of Justice and Federal Labour Court are available at http://www.iuscomp.org/gla. See also the English abstracts of some Federal Constitutional Court decisions at http://www.jura.uni-sb.de/Entscheidungen/abstracts/entsch-e.html. Finally, the Institute of Global Law of the University College London Faculty of Laws, in cooperation with the Institute of Transnational Law at the University of Texas School of Law has also created a database of over 500 German legal decisions translated into English. Decisions are from the the Bundesverfassungsgericht and the Bundesgerichtshof; they cover constitutional, administrative, contract and tort law. These German Legal Materials are available at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/toc.php.
VII. Dictionaries
For help with German legal terminology, you should consult a German legal
dictionary. The standard German-English dictionaries will also provide
some guidance.
Dictionary of Law: English - German (Reference Office,
K52.G4D53x 1990)
Dictionary of Legal, Commercial and Political Terms (Reference Office,
K52.G3W93 2000)
Law Dictionary: Technical Dictionary of Anglo-American Legal Terms
(Reference Office, K52.G4B473 1991).
VIII. Research Guides
Research guides are helpful in providing guidance on German legal research as
well as more information about the German legal system. See Anke Freckmann
& Thomas Wegerich, The German Legal System (KK 149 .F74 1999),
German Law & Legal System (KK 147 .F67x 1993), Charles Szladits'
Guide to Foreign Legal Materials : German (KK 76 .K43x 1990),
Introduction to German Law (Reference Office KK 147 .I58 2005), German
Legal System and Legal Language: A General Survey (KK 147 .F56x 2002),
and Foreign Law: Current Sources of Codes and Legislation in Jurisdictions
Around the World. Available from the Law Library's Law-Related Databases
page at http://www.law.umn.edu/library/ERDirectory.html,
or at http://foreignlawguide.com/ip/ for U
of M community members.
Another useful resource, particularly for comparative law questions, is
Raymond Youngs's English, French and German Comparative Law
(London: Cavendish, 1998). KJC147.Y68 1998.
A good web guide to available German law sources (both free and by
subscription) is Rita Exter & Martina Kammer, Legal Research in Germany at
the Crossroads of Traditional and Electronic Media: An Overview, http://www.llrx.com/features/germanlaw.htm
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