German Judiciary

German Judiciary in Europe

History

By the Judicature Act—Gerichtsverfassungsgesetz—of 1879, the so-called “regular litigious” jurisdiction of the 820 courts of law was rendered uniform throughout the empire, and the courts are now everywhere alike in character and composition; and with the exception of the Reichsgericht (supreme court of the empire), immediately subject to the government of the state in which they exercise jurisdiction, and not to the imperial government. The courts, from the lowest to the highest, are Amtsgericht, Landgericht, Oberlandesgericht and Reichsgericht. There are, further, Verwaltungsgerichte (administrative courts) for the adjustment of disputes between the various organs of local government, and other special courts, such as military, consular and arbitration courts (Schiedsgericht).

In addition to litigious business the courts also deal with non-litigious matters, such as the registration of titles to land, guardianship and the drawing up and custody of testamentary dispositions, all which are almost entirely within the province of the Amtsgerichte. There are uniform codes of criminal law (Strafgesetzbuch), commercial law and civil law (Bürgerliches Gesetzbuch), the last of which came into force on the 1st of January 1900. The criminal code, based on that of Prussia anterior to 1870, was gradually adopted by all the other states and was generally in force by 1872. It has, however, been frequently emended and supplemented.

The lowest courts of first instance are the Amtsgerichte, each presided over by a single judge, and with jurisdiction in petty criminal and civil cases, up to 300 marks (£15). They are also competent to deal with all disputes as to wages, and letting and hiring, without regard to the value of the object in dispute. Petty criminal cases are heard by the judge (Amtsrichter) sitting with two Schöffen—assessors—selected by lot from the jury lists, who are competent to try prisoners for offences punishable with a fine, not exceeding 600 marks (£30) or corresponding confinement, or with imprisonment not exceeding three months. The Landgerichte revise the decisions of the Amtsgerichte, and have also an original jurisdiction in criminal and civil cases and in divorce proceedings. The criminal chamber of the Landgericht is composed of five judges, and a majority of four is required for a conviction. These courts are competent to try cases of felony punishable with a term of imprisonment not exceeding five years.

The preliminary examination is conducted by a judge, who does not sit on the bench at the trial. Jury courts (Schwurgerichte) are not permanent institutions, but are periodically held. They are formed of three judges of the Landgericht and a jury of twelve; and a two-thirds majority is necessary to convict. There are 173 Landgerichte in the empire, being one court for every 325,822 inhabitants. The first court of second instance is the Oberlandesgericht, which has an original jurisdiction in grave offences and is composed of seven judges. There are twenty-eight such courts in the empire. Bavaria alone has an Oberstes Landesgericht, which exercises a revising jurisdiction over the Oberlandesgerichte in the state. The supreme court of the German empire is the Reichsgericht, having its seat at Leipzig. The judges, numbering ninety-two, are appointed by the emperor on the advice of the federal council (Bundesrat). This court exercises an appellate jurisdiction in civil cases remitted, for the decision of questions of law, by the inferior courts and also in all criminal cases referred to it. It sits in four criminal and six civil senates, each consisting of seven judges, one of whom is the president. The judges are styled Reichsgerichtsräte (counsellors of the imperial court).

In the Amtsgericht a private litigant may conduct his own case; but where the object of the litigation exceeds 300 marks (£15), and in appeals from the Amtsgericht to the Landgericht, the plaintiff (and also the defendant) must be represented by an advocate—Rechtsanwalt.

A Rechtsanwalt, having studied law at a university for four years and having passed two state examinations, if desiring to practise must be admitted as “defending counsel” by the Amtsgericht or Landgericht, or by both. These advocates are not state officials, but are sworn to the due execution of their duties. In case a client has suffered damage owing to the negligence of the advocate, the latter can be made responsible. In every district of the Oberlandesgericht, the Rechtsanwälte are formed into an Anwaltkammer (chamber of advocates), and the council of each chamber, sitting as a court of honour, deals with and determines matters affecting the honour of the profession. An appeal lies from this to a second court of honour, consisting of the president, three judges of the Reichsgericht and of three lawyers admitted to practice before that court.

Criminal prosecutions are conducted in the name of the crown by the Staatsanwälte (state attorneys), who form a separate branch of the judicial system, and initiate public prosecutions or reject evidence as being insufficient to procure conviction. The proceedings in the courts are, as a rule, public. Only in exceptional circumstances are cases heard in camera.

Military offences come before the military court and serious offences before the Kriegsgericht. The court-martial is, in every case, composed of the commander of the district as president, and four officers, assisted by a judge-advocate (Kriegsgerichtsrat), who conducts the case and swears the judges and witnesses. In the most serious class of cases, three officers and two judge-advocates are the judges. The prisoner is defended by an officer, whom he may himself appoint, and can be acquitted by a simple majority, but only be condemned by a two-thirds majority. There are also Kaufmanns- and Gewerbegerichte (commercial and industrial courts), composed of persons belonging to the classes of employers and employees, under the presidency of a judge of the court. Their aim is the effecting of a reconciliation between the parties. From the decision of these courts an appeal lies to the Landgericht where the amount of the object in dispute exceeds 100 marks (£5). (1)

Resources

Notes and References

  1. Encyclopedia Britannica (11th Edition)

See Also

Further Reading

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