Professional Documents
Culture Documents
The German Judicial System
The German Judicial System
The German Judicial System
Summary
A. Introduction
Seite 3
B. Juriciary in Germany
Seite 4
Seite 4
2. Who
a.
b.
c.
d.
Seite 6
3. Legal remedies
a. Berufung
b. Revision
Seite 7
4. Enforcement of judgments
Seite 8
5. Defense/legal insurance
Seite 11
Seite 11
C. Special procedures
Seite 12
Seite 12
Seite 13
Seite 15
4. Insolvency procedure
Seite 16
Seite 17
D. Helpful vocabulary
Seite 18
E. Useful adresses
Seite 19
December 2010
A. Introduction
B. Judiciary in Germany
The judicial system in Germany comprises basically three different types of
courts: Ordinary courts, dealing with criminal and most civil cases, specialised
courts, such as the administrative, labour, social and fiscal courts, and finally
constitutional courts which are competent for judicial review and constitutional
interpretation.
b. Ordinary courts
Ordinary courts are competent for criminal matters, civil matters, matrimonial
and family proceedings. Furthermore for non-contentious proceedings such as
the maintaining of the company register.
Ordinary courts are organized in four tiers, each of increasing importance:
the local courts (Amtsgerichte), the regional courts (Landgerichte), the
higher regional courts (Oberlandesgerichte) and the Federal Court of Justice
(Bundesgerichtshof).
In criminal cases, each of the first three courts may have jurisdiction,
depending on the nature and seriousness of the crime. In civil proceedings,
either the local or the regional court can be court of first resort. Appeals may
mostly be lodged with up to two higher courts.
c. Labour courts
Labour courts handle disputes under private law arising from employment
contracts and between management and labour force as well as matters
covered by the Works Constitution Act. Labour courts have got three instances.
They are for example competent for the question whether an employee has
been fairly dismissed or not.
d. Administrative courts
The jurisdiction of the administrative courts covers legal protection against all
administrative acts and other administrative proceedings. The administrative
courts handle all trials under public administrative law, except those that
fall under the jurisdiction of the social, finance or constitutional courts.
Administrative courts have also got three levels.
e. Social and Financial courts
The social courts rule on disputes from all areas of social security. They have
also got three instances. Financial courts have only got two levels and are
dealing with taxation and related matters.
c. Registrars (Rechtspfleger)
Registrars are independent providers of legal services. Their function and
position is laid down in the German Registrars Act (Rechtspflegergesetz).
If you havent got the means to pay an attorney at law the registrar can give
you first legal advice and assistance (Beratungshilfe). If you need further
advice from a professional attorney at law the registrar can give you a voucher
for legal assistance (Beratungshilfeschein). With this voucher you can get
legal advice from an attorney and have to pay only 10 Euros for this service.
d. Tax counselors (Steuerberater)
In Germany, tax counselors are called Steuerberater. They can give you
advice in tax and accounting measures.
Since the German tax law is considered to be one of the most complicated in
the world it can be helpful to consult a tax counselor e.g. for your annual tax
declaration if you are obliged to pay taxes in Germany.
3. Legal remedies
If you are not satisfied with a judgment there are usually two types of appeal,
Berufung (appeal on questions of fact or law) and Revision (appeal on
questions of law). You have to be aware though that in civil law proceedings
at ordinary courts an appeal is only possible if the amount in dispute is higher
than 600 Euros or if the first instance considers a decision by a higher court
essential in order to assure consistency in jurisdiction.
a.Berufung
The Berufungsinstanz (instance of appeal) represents a second instance
where you can challenge the decision of the lower court both in legal terms
and in terms of fact. In civil law cases you are though only allowed to bring
forward new facts of the case under very limited circumstances while in a
criminal legal proceeding all facts of the case are reevaluated.
b.Revision
The Revisionsinstanz (instance of revision) only allows a petitioner to
question in legal terms whether substantive law has been applied correctly
and whether the fundamental procedural Regulations have been observed.
While in criminal legal proceedings the parties can directly invoke the
Revisionsintanz in civil law cases it is only possible after the decision of the
Berufungsinstanz and if this decision is left to appeal on a point of law.
4. Enforcement of judgments
If you have succeeded in a legal proceeding you will get a legal title which
you can enforce. In Germany it is the Gerichtsvollzieher (bailiff) or the
execution court in the judicial district of the adverse partys residence who is
competent for the enforcement of legal titles.
Titel, Klausel, Zustellung: After having obtained a legal title (Titel), you
will have to ask the authority to execute (Vollstreckungsklausel) which will
be endorsed on your judgment. The therefore endorsed title has to be notified
to the adverse party (Zustellung).
According to European legislation you have also got the possibility to enforce
a legal title from one European country in another European country.
As a British citizen you have succeeded in a legal proceeding
that was taking place in Great Britain against a company that
is based in Germany. You have got the possibility to enforce this
title in Germany.
In this case, you must additionally to the above mentioned
steps apply to the relevant court in Germany for a declaration
that the foreign judgment is enforceable (exequatur) according
to Regulation (EC) 44/2001.
Example
In cross border case you will always have to consider two questions before
you go to court: Which one is the competent court and which law will this
court apply?
Assuming that you have been on holiday in Germany and
on this occasion you have bought a digital camera. Back
home you get aware that it is not really working as it
should and you therefore contact the trader in Germany
who denies any responsibility.
Excursus:
Applicable law
and competent
courts
You are now considering going to court, but will you have to seek a German
court or do your home countrys courts have jurisdiction?
The answer to this question gives Regulation (EC) 44/2001:
In general the factor determining jurisdiction is the domicile of the defendant:
Persons domiciled in a Member State shall, whatever their nationality, be
sued in the courts of that Member State.
According to this general rules, you would have to file your claim with the
German courts as the defendant is domiciled in Germany.
or
if the contract is for the sale of goods and
the consumer travelled from that country
to another country and there gave his
order, provided that the consumers
journey was arranged by the seller for the
purpose of inducing the consumer to buy.
or
If you are living in the French border region and you regularly
receive advertising leaflets from a shop in German, French law
will be applicable to a contract closed in this shop. But the
consumer could choose to go either to a French or a German
court.
Example
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5. Defense/legal insurance
If you want to insure the risk of having a legal dispute, you might conclude
a legal insurance (Rechtsschutzversicherung). The insurance company will
cover the costs if you are involved in a legal proceeding.
In Germany applies the general principle that the unsuccessful party
shall bear the costs of the proceedings: the looser pays!
If you decide to conclude a legal insurance you should carefully read all the
contract clauses. First of all there are different types of legal insurances. You
can often decide for what kind of disputes you want to have coverage (e.g.
rent, car accident or your employment contract). You are also often obliged
to cover your own risk with an amount of up to several hundred Euros.
Attention: Legal insurances often only cover disputes for the country where
they were concluded. If you need coverage from your legal insurance for
eventual disputes in Germany you should carefully check the terms and
conditions of your contract.
Example
http://ec.europa.eu/justice_home/judicialatlascivil/html/la_information_en.htm
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C. Special procedures
The following procedures are adapted to help you getting your right in a quite
simple and quick way e.g. when somebody in Germany owes you money, didnt
deliver the requested product or when you had a car accident in Germany.
Mahnverfahren
a. Mahnbescheid
There is a standardised form for this procedure. You can just fill in a
questionnaire where you mention the contact details of the debtor and the
sum in dispute. The competent court, which is for European citizens outside
Germany the Amtsgericht Wedding (Berlin) will not examine the facts of the
case. Furthermore no documents are required to prove your claim which
makes the whole procedure very simple compared to a lawsuit.
For this procedure you dont have to be represented by a lawyer. You have
to be aware though that the defendant has got the possibility to file a notice
of opposition against the Mahnbescheid. If the debtor contests the claim,
the court issuing the order (the dunning court) passes the legal dispute on to
the competent court for this case, if you have applied for the dispute to be
settled.
You can get the form for the Mahnbescheid online under
https://www.online-mahnantrag.de/omahn/Mahnantrag?_ts=8380101141121731582&Command=start
Attention: You will find further information about the judicial dunning
procedure on the homepage of the European Consumer Centre Germany under
the following address: http://www.eu-verbraucher.de/en/legal-procedures/
judicial-dunning-procedure/
There we also provide an English version of the questionnaire.
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b. Vollstreckungsbescheid
If the defendant doesnt file a notice of opposition, the creditor can apply
for an enforcement order (Vollstreckungsbescheid). The application for an
enforcement order can only be made after the time limit of two weeks for the
notice of opposition has been expired.
The enforcement order is already preliminary enforceable. If the defendant
doesnt file a notice of opposition within two weeks after he has received the
enforcement order, you are entitled to finally enforce your title which can be
considered as an equivalent to a court decision. With this title you will have
the possibility of compulsory execution for up to thirty years.
Attention: The Mahnverfahren is a convenient and cheap method to get
your money back from your debtor. It is a possibility to circumvent a time
consuming and costly court proceeding. It is especially advisable when your
claim is well founded.
Nonetheless, you will have a German title to be executed in another Member
State. You will therefore have to proceed in that Member State the procedure
of recognition of the title (exequatur) before you can execute.
In order to facilitate cross border means of civil redress, the European Union
has decided on 2 regulations settling rules for procedures which are even
easier and quicker to conduct than the dunning procedure: the European order
payment procedure for uncontested claims and the small claims procedure for
contentious claims not exceeding 2.000 .
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The form must include the key details, like the names and addresses of the
parties and their representatives, the name and address of the court to which
the application is made, the amount of the claim, the cause of the action
and the cross-border nature of the case. You will have to complete it in the
language of the Member State in which the court is situated. But thanks to
the availability of standard forms for the communication between the parties
and the court that are available in all EU languages language problems are
minimised.
The court to which an application for an European order for payment has been
made considers whether the application conditions have been met. If the
conditions are met, the court issues the order as soon as possible and normally
within 30 days of the lodging of the application.
The judicial decision obtained as a result of this procedure will circulate
freely in the other Member States; the creditor will not have to undertake
intermediate steps to enforce the decision abroad like the above mentioned
exequatur. Only a translation of the title in the language of the Member State
where it shall be executed will be asked.
Attention: The form of the European order of payment will facilitate the
procedure of claiming your money back in another country of the European
Union. Whereas the dunning procedure is a two-stage process and its title
has to run trough the exequatur procedure in the country where you want to
execute it, the European order for payment procedure is enforceable after
one step and without exequatur.
You will find the questionnaire as well as further information under the
following addresses:
http://www.eu-verbraucher.de/en/legal-procedures/european-judicialprocedures/
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4. Insolvency procedure
If you have got a claim against a company and this company has meanwhile
declared insolvency you have got the possibility to register your claim in the
insolvency procedure.
Attention: When you have got a claim against a company that is based in
Germany and you dont know whether this company has declared insolvency
the European Consumer Centre Germany can give you further advice. We
can find out whether a company has declared insolvency and where you can
register your claim.
After a company has declared insolvency the competent court will transfer the
case to a liquidator. This liquidator will then decide whether it is possible to open
an insolvency procedure or whether this has to be rejected since the company
doesnt have any means to pay back its debts. In case the liquidator decides to open
the procedure you have got the possibility to register your claim at the liquidators
office. Be aware that only the liquidator and not the court is competent for the
registration of your claim.
You will find an English translation of a form for an insolvency procedure as well as
further information on our homepage under: http://www.eu-verbraucher.de/en/
legal-procedures/insolvency-procedure/
When your claim is considered to be well founded and it is asserted that the
company still has got the means to pay its debts, you will receive your money back
or at least a part of it (the insolvency rate).
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5. Administrative offence
Ordnungswidrigkeit
When you finally receive the notice of the committed offence, you have got
the right to appeal against this decision within two weeks. According to your
appeal the authorities can decide whether to reduce the requested amount or
even to renounce their last decision. Otherwise the authority will forward the
case to the competent court that will then decide over your appeal.
Attention: Due to a European Resolution there will most likely be the possibility
to enforce administrative offences that you have committed in a EU-Member
State in your home country. This possibility exists for fines higher than
70 Euros since November 2010.
Nonetheless, you should always carefully respect the traffic rules in each
European country.
If you are interested in further information about the legal system in Germany
or are facing one of the above mentioned problems the European Consumer
Centre Germany will give you further advice. Just contact:
Please note that even after an accurate research we can not guarantee for the
accuracy of the given information and therefore deny any liability for it.
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D. Helpful vocabulary
Amtsgericht: local court
Arbeitsgericht: labour court
Berufung: appeal (on issues of fact and law)
Betriebsrat: staff association / workers council
BGB: German Civil Code
Bundesgerichtshof: Federal Court of Justice
Bundesverfassungsgericht: Federal Constitutional Court
Finanzamt: tax office
Garantie: product warranty
Gewhrleistung: statutory warranty
Gebhren: fees
Gerichtsvollzieher: bailiff
Gteverfahren, Streitschlichtung: conciliatory proceedings
Kndigungsschutzgesetz: Employment Protection Act
Kndigungsschutzklage: action against unfair dismissal
Landgericht: district court
Mahnbescheid: court order/default summons
Notar: notary
Oberlandesgericht: higher regional court
Prozekostenhilfe: legal aid
Recht: law
Rechtsanwalt/Anwalt: attorney at law/barrister
Rechtsschutzversicherung: insurance of defence and recovery
Revision: appeal (on issues of law)
Richter: judge
Sicherheitsleistung: security lodging/provision
Steuerberater: tax counsellor
Strafzettel, Bugeld, Verwarnungsgeld: fines
Vollstreckungsbescheid: enforcement order
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E. Useful adresses
European Consumer Centre Germany
Rehfusplatz 11
As of March 2011: Am Bahnhofsplatz 3
D - 77694 Kehl
Phone: 0049/7851/99148-0
Fax: 0049/7851/99148-11
Web: www.euroinfo-kehl.eu
Mail: info@euroinfo-kehl.eu
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EURO-INFO-VERBRAUCHER e.V.
Kehl/Straburg
One address - Two services
European Consumer
Centre Germany
European Consumer
Centre France
www.euroinfo-kehl.eu
ECC-Net: European Consumer Centres Network
http://ec.europa.eu/consumers/ecc/index_en.htm
The ECC Germany is funded by the Federal Ministry of Justice (Germany) and
the Federal Ministry of Food, Agriculture and Consumer Protection (Germany),
following a decision of the German Parliament, as well as by the European
Commission.