Civil Law: General Structure Flashcards
What are the main points of German legal System
- Codified laws created by a legislative body.
- Abstract rules covering all aspects of law.
- Legal provisions (Bestimmungen) consist of requirements and consequences; judges ensure the facts fulfill specific provisions.
- Judges mainly contribute to interpreting and refining laws.
What are the main points of Common Law System:
- Laws developed through judicial decisions (precedents).
- Judges apply or create law based on past cases or new decisions.
- Focuses on whether current case facts align with precedent.
- Judges play a central role in law creation and adaptation.
What are the protective rights outlined in the Bill of Fundamental Rights (Grundrechte) in the German Legal System?
They are protective rights of the citizens against the powers of the state.
What is the Principle of the Rule of Law (Rechtsstaatsprinzip) in the German Legal System?
- Every power requires a law that allows the state to act.
- The state may not act contrary to existing law.
What are the three powers of the state in the German Legal System?
Legislative
Administrative
Judicial
How does the German Legal System ensure a counterbalance or protection of citizens?
Through principles such as the Rule of Law, the Bill of Fundamental Rights, and the legal remedy of constitutional review (Verfassungsbeschwerde), which provide a counterbalance to the powers of the state and constitutionalize politics.
What are the key characteristics of Criminal Law in the German legal system?
- Only the state has the authority to inflict punishment.
- Criminal law is part of public law but traditionally viewed as an independent area of law.
- It also includes laws on lesser offences (Ordnungswidrigkeiten).
What does Public Law regulate, and how is it executed?
- Regulates matters between the state and citizens (senior-subordination relationship).
- Organizes the state and its organs.
- Execution is regularly carried out by bound authorities.
What are the defining features of Private Law?
- Regulates matters between citizens.
- Based on the principle of private autonomy.
- Implementation is handled by courts and execution by enforcement bodies.
- Also applies when public authorities act as private individuals.
What is Substantive Law (Materielles Recht), and what does it govern?
Governs the creation, transfer, and termination of legal rights and duties, forming the foundation of legal institutions like contract law and tort law
What is Adjective Law (Formelles Recht), and what does it include?
- Describes all provisions that enforce or implement substantive law and the rights of legal subjects.
- Includes: Procedural law (Prozessrecht) and Rules for the conduct of litigation (e.g., evidence collection).
What are the three main sources of law and their characteristics?
Statute Law:
* Abstract general rules (e.g., BGB, StGB, HBO).
* Applicable in an unlimited number of cases.
Decisions of the Courts:
* Binding for involved parties.
* Superior court decisions influence lower courts (quasi-normative force of ratio decidendi).
* Bound by constitutional value judgments, especially fundamental rights.
* Federal Constitutional Court decisions are binding for all authorities and courts.
Customary Law:
* Integrates cultural and historical norms.
* Consequences arise from long-standing customs, traditions, and values.
How is the hierarchy of laws structured in the German legal system?
European Law: Primacy of application.
German Federal Law:
* Constitution (GG).
* Federal law (e.g., BGB).
* Statutory instruments (e.g., StVO).
German State Law:
* State Constitution (e.g., HV).
* State law (e.g., HBO).
* Statutory instruments (e.g., HCoSchuV).
Note: Federal law supersedes state law.
What are the four approaches to legal interpretation?
Grammatical:
Meaning of words in common or specific legal language and Rule of grammar.
Historical:
Parliamentary history and intent of the legislator.
Teleological:
Purpose and meaning of the rule.
Systematic:
Context of the rule within the legal system.
