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Perjury, what Perjury? German Witnesses and the Oath

German Civil Court Judges rarely put a Witness under Oath

Section 154 German Penal Code (Strafgesetzbuch) is titled „Meineid“, which is the German word for perjury, i.e. lying under oath to certain German authorities, either in a German court of law (Gericht) or in another official proceeding.

However, in real life, prosecution for perjury is very rare in Germany. This is not because all Germans are perfectly honest and no one lies in German court rooms (trust me, there is plenty of lying), but because not many German judges demand a witness to swear an oath. Not even when the judge is rather sure that he or she was just lied to by the witness.

Why does German law (appear to) employ such a soft approach towards „lying witnesses“ in civil procedure? This post describes the method of hearing witnesses in a German civil lawsuit and explains why many civil law court judges in Germany are hesitant to put a witness under oath.

Witness Evidence in German Civil Litigation

First, you must remember that there is no jury in a German court of law (more here). The case is decided by a professional judge only. The German approach is that a witness shall be questioned by the judge (instead of by the parties) and shall tell „the story as the witness remembers it“. The witness shall coherently describe what he or she recalls, i.e. in a freely worded statement which is uninterrupted by constant questions by a party’s legal counsel. „Coherently“ („im Zusammenhang“) is the important buzzword here, see section 396 para. 1 German Code of Civil Procedure. This German civil procedure statute explicitly prohibits a rapid fire cross-examination style questioning of a witness.

The method of hearing witnesses in German civil litigation is therefore the exact opposite of the rather aggressive „question by question“ approach used in the United States. German civil procedure rules do not believe in pressuring or leading witnesses. Instead, the German judge asks the questions rather broadly and then lets the witness speak. A typical question by a German civil court judge would be:

„What, if anything, do you recall about the meeting between X and Y on that day?“

It is only at the end of the witness hearing, i.e. after the judge has asked all questions which he or she deemed relevant, that the party’s legal counsels are then allowed to pose follow up questions (s. 396 para. 2 and 3 German Code of Civil Procedure). If a legal counsel gets too aggressive with this, the judge may step in and tell the German lawyer that the court does not consider the question relevant or that the question has already been answered by the witness. Judges usually give the lawyers some leeway and also let them ask additional questions even if the relevance is not immediately obvious. This also applies to leading questions (in German called Suggestivfragen): although not allowed under German civil procedure rules, German lawyers often pose such leading questions and the judge usually lets it slip. However, the court has the last say on whether a question is admissibleor not (s. 397 para. 3 German CPR).

Why are German Witnesses not put under Oath?

It fits the picture of this generally restrained and unaggressive approach of hearing witnesses in German civil trials, that a German witness is also very rarely put under oath (vereidigt). It would be considered a sign of general mistrust, if each and every witness would be put under oath even before he or she has started to give their testimony. Thus, under German law, a witness is generally being questioned without having to swear an oath. Much less an oath on the bible. Yet, the black letter law of German civil procedure rules does set out the circumstances under which a witness shall be put under oath in a German civil court.

According to s. 391 German code of civil procedure:

… a witness is to be placed under oath if the court believes this is mandated in light of the significance of the testimony, or in order to procure a truthful statement, provided that the parties to the dispute do not waive having the witness placed under oath.

At first glance, this reads as if most witnesses in a German civil procedure will be put under oath, especially if the judge has doubts about the truthfulness of the witness. Strangely, the opposite is true. Hardly any witnesses are put under oath (vereidigt). Not even when the judge believes that the witness has just lied to the court. This is due to statistical evidence and psychological studies which show that once a witness has begun to lie in court, he or she will almost never turn around and admit that they have been untruthful. Instead, they will stick to their story, even if it is clear to everyone in the court room that the testimony cannot be true and even if the judge thus threatens to put the witness under oath (which can be done after the testimony), which would raise the criminal charge from a simple „false testimony“ (uneidliche Falschaussage according to s. 153 German Penal Code) to a felony charge (Verbrechen) of „perjury / lying under oath“ (Meineid, s. 154 German Penal Code), the minimum sentence for which is one year in prison.

Never say never

Now, even if the majority of German civil judges tend to be unwilling to demand a witness to swear an oath, not all judges are the same. And, sometimes, even an otherwise laid back German judge can get angry if the witness tries to play the court for a fool too obviously. Thus, a smart trial lawyer can get the judge to make an exception to the „no oath practice“. An often successful strategy for this is to ask the court to summon the same witness again at a later date to question that witness about other aspects of the case or about new facts which came to light through the (false) witness testimony. At the same time, the court is asked to inform the witness that he or she will then be put under oath. That way, the witness has a few weeks to consider the situation and think about the consequences of keeping up the false statement. In my experience, the chances of the witness starting to backpedal are much higher if you give them some time to reconsider.

If the witness still keeps on lying, this is, of course, not without consequences, even under German law. If proven, the false statement is punished under s. 153 German Penal Code as „undeidliche Falschaussage“. Furthermore, the party that loses the German civil lawsuit can sue the lying witness for damages based on tort (e.g. in the form of accessory to fraud). Depending on the circumstances, lying in court can also constitute other criminal offences under German law (e.g. libel, slander etc.).

Practical Court Room Advice

Whenever you think it possible that a witness in German civil case may lie in the oral hearing, you should diligently prepare a strategy for that scenario. Collect factual evidence for you own version of events to prove the witness wrong. Then, in the actual court hearing, let the witness tell his or her story without interrupting right away. Do not immediately show to the witness that you know he or she is lying. That only makes the witness wary and more careful. Instead, use what I like to call an „Inspector Columbo“ approach, i.e. let the witness finish their version with as much detail as possible. Then raise certain issues which do not fit in his or her story. One by one and very calmly. Only at the very end of the witness questioning you might want to make it clear that you consider the witness an outright liar. Depending on the reaction of the witness, you may get the court to demand the witness swearing an oath after all.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

How to File for Divorce in Germany

Checklist for (uncontested or contested) Divorce Proceedings in Germany

The German statutes dealing with the divorce of a marriage and the substantive requirements for the same are s. 1564 to 1568 German Civil Code (Bürgerliches Gesetzbuch, BGB). The specific civil procedure rules applicable to divorce cases in Germany are contained within s. 133 FamFG (German Code on Family Matters) which also refers to certain sections of the German Code of Civil Procedure.

Different sets of procedural rules apply to the various aspects of a German divorce (e.g. rules for the divorce itself, for maintenance, property separation, pension redistribution, child custody etc.). This makes it somewhat tricky to identify the correct set of rules, even for German lawyers if they are not experts in family law matters. In case you think we make German divorce procedure rules sound overly complicated, here is a typical Family Procedure statute. Check it out for yourself:

Section 113  Application of Provisions from the Code of Civil Procedure

(1) In marital matters and in family dispute matters, sections 2 through 22, 23 through 37, 40 through 45, 46 sentences 1 and 2, sections 47, 48, and 76 through 96 shall not be applicable. The general provisions of the Code of Civil Procedure and the provisions of the Code of Civil Procedure concerning proceedings before the Regional Courts shall be applicable mutatis mutandis.

(2) In family dispute matters the provisions of the Code of Civil Procedure concerning proceedings on claims arising from a deed, proceedings on claims arising from a bill of exchange, and proceedings for payment orders, shall apply mutatis mutandis.

(3) In marital matters and family disputes, section 227 (3) of the Code of Civil Procedure shall not be applicable.

(4) In marital matters, the provisions of the Code of Civil Procedure in respect of: 1.  the consequences of ignoring or refusing to provide explanations of facts; 2.  the prerequisites for modification of the lawsuit; 3.  the determination of the form of procedure, an early first court hearing, preliminary proceedings conducted in writing, and the statement of defence; 4.  a conciliation hearing; 5.  the effect of admissions before a court; 6.  acknowledgment; 7.  the consequences of ignoring or refusing to provide explanations concerning the authenticity of documents; and 8.  waiver of placing the opponent, witnesses, or experts under oath shall not be applicable.

(5) Upon application of the Code of Civil Procedure, in place of the term: 1.  “procedure” or “legal dispute” the term “proceeding,” 2.  “complaint/action” the term “application,” 3.  “plaintiff” the term “applicant,” 4.  “defendant” the term “respondent,” 5.  “party” the term “participant”  shall be used.

As you can see, a German family lawyer must apply many different procedural rules, depending on what exact claim he or she is making. Rules of evidence may be different, as may terminology and the options to appeal a decision.

Why are German divorce procedure rules so complicated?

Up until the introduction of the FamFG in 2009, German divorce matters fell under the rules of the German Civil Procedure Code (Zivilprozessordnung, in short ZPO). While there was a special section in the German ZPO dealing with divorce, the underlying „spirit“ of the German ZPO was considered to be too aggressive and confrontational for family court matters.

In order to change this and make divorces (and other family law matters more „civil“), the new set of rules introduced by the German FamFG strives to make a divorce and everything that comes with it (maintenance and support obligations, separation of family assets, child custody and child visitation issues) less of a legal battle between „parties to a civil lawsuit“ but more of a constructive process of finding consensual solutions wherever possible.

This is also the reason for the different legal terminology in German divorce cases compared to normal civil litigation (participant instead of party, application instead of complaint etc.). So, if the spouses are still on reasonable speaking terms, a German divorce can be very quick and relatively stress free. This is especially true if both parties, or — to use the correct terminology — both participants to the divorce are willing to agree on the financial issues, as well as on child custody and visitation rights issues in a separate side agreement, called a Trennungs- und Scheidungsfolgenvereinbarung (Separation Agreement, Marital Settlement Agreement).

If the spouses are willing to take that route, then pretty much the only thing that remains for the German family court (Familiengericht) to do is to issue the divorce decree itself, i.e. the final court order on divorce. In German, this is called the Scheidungsbeschluss, s. 1564 German Civil Code  and , s. 142 para. 1 FamFG), or — in old terminology prior to the FamFG  — it was called Scheidungsurteil. Such an „amicable“ or uncontested divorce in Germany will take about 4-8 months.

If, however, the spouses — for whatever reason — can’t agree on all divorce related aspects amicably, the German divorce proceedings will take significantly longer, because statute s. 142 FamFG regulates that the divorce decree shall not be issued until all divorce related family matters have been sorted out, either by the participants or by the court. Therefore, our German family law experts always stress the fact that — wherever possible — the spouses should not make a divorce any more aggressive and confrontational than it has to be.

 

Checklist: Necessary Steps of a German Divorce

1. Legal Grounds for Divorce under German Law:

In 1976, Germany abolished the fault-divorce principle (Verschuldensprinzip). Since then, German substantive law (s. 1565 para. 1 German Civil Code) applies a no-fault divorce system and only knows one single ground for divorce, the failure (i.e. breakdown) of the marriage. The German expression is „Scheitern der Ehe“ (failure of marriage), also called „Zerrüttungsprinzip“.

According to the definition contained in s. 1565 para. 1 sentence 2 German Civil Code, the marriage has irretrievably broken down (failed) if the marital community of the spouses (eheliche Gemeinschaft) no longer exists and it cannot be reasonably expected that the spouses will restore it, i.e. that they will reconcile. It is up to the German Family Law judge (Familienrichter, usually just one judge) to assess the state of the marriage and to make a prediction as to the chances of any reconciliation. In practice, of course, a judge has no way of knowing how a husband and wife really feel. Thus, German law provides for and German courts do apply two rules in order to determine the fate of a marriage. The irretrievable breakdown of a German marriage shall be presumed (conclusive presumption, in German „unwiderlegliche Vermutung“), if:

There are thousands of German court rulings on the issue of when und under which conditions exactly a couple has been genuinely separated. A German couple can be „legally separated“ while still living in the same house or even apartment (s. 1567 German Civil Code). The decisive factor is whether they „live together“ or not. In practice this means, that they must not have meals together, one spouse should not do the other spouses laundry etc. Obviously, they must not share the same bedroom if they want to convince the German family court judge that they have split up for a full year already, in spite of having lived in the same property.

A highly debated legal issue is also whether a brief attempt to reconcile the marriage does set back the clock (usually, they do not). So, even if the two — a few months into being separated — try to live together again but after a few days or even weeks find out that they still hate each other, they do not have to start the one year term from the beginning.

If a spouse wants a quicker divorce, i.e. does not want to wait out the one year (or three year) separation period, that spouse can claim one of three statutory exceptions to the principle of a mandatory separation period. These hardship clauses (Fälle der Unzumutbarkeit) which allow for a quicker divorce, for instance in cases of physical or psychological abuse, are laid down in s. 1565 para. 2 and s. 1568 German Civil Code. The requirements are rather strict though and German family courts are reluctant to grant spouses such a fast track divorce.

2. Prepare and Execute the Marital Settlement Agreement

Wherever possible, the spouses (and their respective German legal counsels) should negotiate the terms of a Scheidungsfolgenvereinbarung (Marital Settlement Agreement). Ideally, this agreement contains all aspects that need to be dealt with: financial matters, child custody, visitation rights etc. There are certain restrictions under German law which prevent the spouses to waive all their rights. Therefore, German law also requires such a separation agreement to be recorded before a German notary public.

This German Marital Settlement Agreement can be signed at a very early stage, i.e. well before the parties even file for divorce. Taking care of these child custody and financial matters early on removes much of the tension and is thus a great way to keep on good speaking terms. It also spares the children having to watch their parents quarrel for months.

But in some case, the spouses are simply not willing or able to come to an amicable solution. In such a case, the German family court will have to decide on every single issue, from maintenance and asset separation to  pension splits and everything child related. This, obviously, can take months or even years.

3. Filing for Divorce in Germany (Divorce Petition)

Either spouse may file for divorce with the competent German Family Law Court (Familiengericht) in the court district where the couple has (had) their residence. Unless the divorce is based on a hardship clause, the application shall be filed approximately two months before the separation period ends, i.e. after about 10 years of living separate. According to s. 133 FamFG, the divorce application (divorce petition) must contain at least the following information:

  • marriage certificate
  • name(s) and date(s) of birth of minor children and their place of usual residence; birth certificate(s)
  • a statement whether the spouses have reached agreement on the issues of parental custody, visitation, child support, maintenance payments to spouse, the marital home and household property
  • whether there are any unresolved legal matters pending.

At least one spouse must be duly represented by a qualified German legal counsel

4. Divorce Decree (Final Judgment of Divorce)

Once all aspects surrounding the separation and divorce have been resolved and the judge is convinced of the irretrievable breakdown of the marriage, the German Family Law Court hands down the divorce decree (Scheidungsbeschluss, or Scheidungsurteil in old terminology). This divorce decree is, however, not immediately binding. Unless both spouses waive their right to appeal the decision (Verzicht auf Rechtsmittel), the divorce only becomes legally binding (rechtskräftig) two weeks from the day the written court order has been served to the parties.

 

Our law firm specialises in U.S.-German and Anglo-German legal matters. This includes drafting pre-nuptial agreements for German-American and German-British couples. We also advise and represent international couples with regard to separation and divorce in Germany. In case you are in need of an English speaking German family lawyer, don’t hesitate to call or send us an email. 

More information on litigation and legal fees in Germany is available in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Equitable Relief in Germany

How to get Equitable Relief (Equitable Remedy) under German Law

Equitable relief, also known as equitable remedies, is a legal concept which was historically developed by the old English courts. Thus, the terms equitable relief and equitable remedy are only being used by lawyers in common law jurisdictions where such judicial remedies are still available today.

In practice, seeking equitable relief means that a Plaintiff asks the court to award a non-monetary judgment against a Defendant. For example, an order requiring the Defendant to do something, i.e. to perform a specific act (thus the legal term „specific performance“); or an order requiring the defendant to refrain from doing something (this is typically called an „injunction“, in German „Unterlassung“).

Contracts drafted by lawyers in common law jurisdictions contain Equitable Remedy Clauses as standard boilerplate clauses. Lawyers from non-common law jurisdictions (like Germany, France or Spain), usually do not really understand what to make of these terms, especially since the expression „equitable“ is not self explanatory. Still, German business executives sign contracts and CDAs which contain such equitable remedy clauses all the time, often without having a real clue what this would mean in case of a legal dispute.

The situation becomes especially confusing if a German lawyer uses an English language contract template (which is based on English or US law and thus contains such equitable relief clauses) and then simply modifies the template by making the contract subject to German laws and giving German courts exclusive jurisdiction. This happens all the time in German-British or German-US business relationships. Sometimes applicable law and jurisdiction clauses are changed at the last minute when the parties want to close the deal and the executives think it a good idea to agree on German, Austrian or Swiss law as a „compromise“. In all these German speaking countries, no lawyer or judge will know what equitable relief is. What will happen in an international legal dispute, if the business partners must go to a German (or Austrian or Swiss) court of law and find such an equitable remedy clause in the relevant agreements?

Definition of Equitable Remedies

Legal dictionaries define equitable relief as non-monetary judicial remedies obtained when available legal remedies (i.e. monetary claims for compensation) cannot adequately redress the injury. The most relevant among the long list of equitable remedies applied by courts in common law countries are:

  • injunction
  • specific performance
  • rescission
  • equitable estoppel
  • declaratory relief.

As mentioned above, the terms equitable relief and equitable remedy are unknown in civil law jurisdictions like Germany, Austria, France or Spain. Simply because the whole legal concept of equity does not exist in these countries. However, civil law systems like Germany obviously also recognize a party’s need for judicial remedies like injunctions and orders for specific performance.

German Law Equivalents to Equitable Remedies

The systematic organization of German civil litigation is quite different from that in common law jurisdictions. Generally, German civil law categorizes civil lawsuits (Zivilverfahren) into these three types of civil actions (Klagearten):

  • Leistungsklage (Performance Action), e.g. claims for payment, specific performance, injunctions, disclosure of information etc.
  • Feststellungsklage (Action for Declaratory Judgment) according to s. 256 German Civil Procedure Code, e.g. court order confirming that someone is a beneficiary under a will (more on German contentious probate here); that somebody is the biological father of a child etc.
  • Gestaltungsklagen (Action for immediate change of legal right or status); only if permittet by German statutory law, e.g. the removal of a shareholder or partner in a German company or the dissolution of a German company, see s. 133 German Commercial Code, s. 323 German Civil Procedure Code

Quite obviously, this German categorization of civil actions does not match the common law distinction between equitable relief and other judicial relief.

How to identify the correct German Civil Action for a Claim

German civil law provides for a large number of specific types of claims (Rechtsansprüche), some are laid down in German statutes (Gesetze), some were developed by German case law (Rechtsprechung). German law knows numerous rights and obligations to perform a specific act (Anspruch auf Vornahme einer Handlung) or to refrain from a specific act (Unterlassungsanspruch). A core statute of German civil law in this context of equitable remedies is s. 1004 German Civil Code, (actio negatoria; Beseitigungs- und Unterlassungsanspruch) which is applied by the German courts as a general principle.

In certain legal areas, e.g. family law, corporate and commercial law, probate law, media law, the German civil code gives the Plaintiff specific rights which, in a common law system, would fall under the category of equitable remedies. In German media law (Presserecht), for example, there is the right to demand retraction (Widerruf, Richtigstellung, Berichtigung) from a newspaper or television network if they published objectively false information about a person. This is a special type of the general German specific performance remedy.

All these rights and obligations contained in the German civil code do correspond with specific types of action regulated in the German Civil Procedure Code (Zivilprozessordnung). German Civil Procedure Rules are rather flexible when it comes to the types of actions than can be brought before a German civil court. Section 253 Code of Civil Procedure merely requires the Plaintiff to clearly state in their written complaint (Klageschrift) what exactly the Plaintiff wishes the court to order the defendant to do or refrain from doing (eindeutiger Klageantrag).

The German legal term for injunction is Unterlassungsklage, which comes in many shapes and forms. In urgent matters, Plaintiffs can apply to German courts for preliminary injunctions or temporary restraining orders (TRO), in German referred to as einstweilige Verfügung or — in general — einstweiliger Rechtsschutz.

Many equitable remedy cases in Germany are thrown out because the complaint is too vague, e.g. „… the Defendant is ordered not to interfere with the Plaintiff’s business …“ Such a general wording would not be enforceable later on. Thus, a German court will not accept such a vaguely worded application.

The correct and diligent wording of civil litigation complaints in Germany is especially important if the Plaintiff applies for a preliminary injunction or a temporary restraining order (einstweiliger Rechtsschutz) because in these summary proceedings there is usually no time to correct and modify the complaint if the German court finds that it is not precise enough or otherwise unclear.

More information on litigation and legal fees in Germany is available in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Switch from German Litigation to Arbitration

In German court, it’s never too late to agree to arbitration instead of litigation

If you find yourself entangled in German litigation (Zivilprozess), in particular business litigation, you and your opponent may not want to discuss your quarrels in the public eye. But can you still opt for arbitration even if the agreement between you and your German business partner does not contain an arbitration clause? Yes, you absolutely can. In fact, German civil procedure rules do encourage the parties to apply for the civil case to be transferred to a so called „Güterichter“ (arbitration judge).

German civil courts have installed special chambers for such arbitration proceedings at all levels, see for example High Court Hannover. That way, the parties get a fully qualified and independent German judge as their mediator / arbitrator and they do not have to shop around. Costs for such a professional judge as arbitrator are also considerably lower than those of private arbitrators, because – from a cost perspective – the arbitration is still part of the official lawsuit. Therefore, arbitration proceedings before a German state judge (instead of a private arbitrator) have become increasing popular in Germany over the last 15 years and there are hardly any high profile business lawsuits in open German court anymore.

Arbitration before a professional German judge

The only requirement for this switch from German civil litigation (i.e. a classic civil lawsuit) to German arbitration before a professional judge is that the parties agree to it. Acording to section 278 para. (5) German Cicil Procedure Rules, the court shall suggest such arbitration to the parties. In fact, even if the German court does not initiate such a transfer, the parties to the legal dispute can „force“ the court to transfer the case to the arbitration judge (Güterichter). From that moment on, the parties discuss the case in private, the hearings are no longer open to the public and everything that is discussed during the arbitration proceedings remains confidential. Not even the civil case judge (Richter im streitigen Verfahren) who has transferred the matter to the arbitration judge (Güterichter) will be informed about what went on in the arbitration proceedings. So even if the arbitration attempt ends up being unsuccessful, the parties go back to the initial judge and the original civil trial proceeds, neither party must fear to have disclosed any information detrimental to their German court case. Another advantage is that the parties can include additional aspects in an overall settlement agreement, i.e. they are not being bound by the core of the initial lawsuit.

Arbitration outside the German state court system

An alternative to having the civil lawsuit transferred to an arbitration judge (Güterichter) at the same German civil court, the parties can also opt for private arbitration. In that case, they choose their own arbitrator or arbitration panel and decide on their arbitration rules. The German civil court will then simply stay the proceedings according to section 278a para. (2) German Cicil Procedure Rules. In that case, costs will be higher, because such private arbitration is a separate proceeding and thus takes place outside the official cost schedule. Should the private arbitration attempt fail, each party can motion to the German civil court to resume the civil trial.

German Litigation vs. German Arbitration

In summary, switching from German civil litigation to arbitration (either before a German state judge or a private arbitrator) is usually a very good idea. Especially, if the parties do not wish the details of the civil dispute to become public. If the arbitration attempt fails, nothing is lost. Each party can simply state that they consider the arbitration unsuccessful. Then the regular civil lawsuit is continued and the German civil court will eventually issue a judgment.

More information on litigation and legal fees in Germany is available in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

German Law System

The System of German Civil Law

German law is a traditional civil law system based on Roman law principles (more precisely on the eastern roman emperor Justinian’s Code) and also heavily influenced by the Napoleonic Code. In modern times, obviously, European Union law has modified German civil law, especially in the areas of contract law, business law and consumer rights. In contrast to the common law systems of Anglo-American jurisdictions, the German law system is based on a comprehensive compendium of statutes, i.e. thousands of laws (Gesetze) and regulations (Verordnungen). We explain the German statutes most relevant for German civil litigation in this post and in our free brochure „Guide to Civil Litigation in Germany:

 

German Judicial System

While, strictly speaking, German judges are not bound by the judgments of other courts (precedent), not even by the rulings of the Bundesgerichtshof (BGH), i.e. Germany’s Federal Court of Justice, the judgements by the German higher courts  (Oberlandesgerichte and BGH) are usually being followed by German judges in the lower courts. Thus, where the facts of a case are similar to a case which was already decided by an Oberlandesgericht or even the Bundesgerichtshof, a court will usually not depart from the view of the OLG or BGH. This chart shows how the German civil courts are structured and how many judges hear a German civil lawsuit:

 

More information on litigation and legal fees in Germany is available in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

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