Germany Trial Law

German procedural law found its fundamental regulation in the judicial laws of the Reich (laws on the judiciary, civil procedure, bankruptcy and criminal procedure), which entered into force on 1 October 1879 and in 1898 were adapted to the codification of the Bürgerliches Gesetzbuch.

Gmdiziario sorting. – The ordinary contentious jurisdiction is governed by the law on the judiciary (Gerichtsverfassungsgesetz, GVG.) Of January 27, 1877 (text of March 22, 1924). The power of jurisdiction is exercised by independent courts, subject only to the law. All disputes on civil rights and criminal law relationships for which the competence of authority or administrative courts have not been established, nor are special courts intended or permitted by the laws of the Reich, fall within the competence of the ordinary courts. A legal dispute is civil law when the disputed object falls within the sphere of private law. In order to know about this, according to the dominant opinion, it must be established that the relations of the parties, and consequently their respective rights and duties, are not a consequence of subjection to superior authority. For this qualification it is necessary to preferably rely on the classification of the matter in question, made by law. The courts, with the exception of private arbitration courts, are all state courts; an ecclesiastical jurisdiction or jurisdiction conditional on belonging to a specific confession has no effect on civil rights. The difference between the courts of the Reich and the courts of the Länder fell following the assumption of the justice complex by the Reich (April 1, 1935)

Ordinary courts are divided into local courts (Amtsgerichte), regional courts (Landsgerichte), higher regional courts (Oberlandsgerichte ; that of Berlin: Kammergericht) and court of the empire (Reichsgericht). In civil cases the local courts judge by means of a single judge. Their sphere of action is vast and has been extended by the provisions introduced to ease the jurisdiction. As a rule, they constitute the first instance for proceedings concerning property rights up to a value of RM 1000, unappealable up to RM 100. and without consideration of value for disputes, for example, relating to rents, services and alimony. For other cases, the first instance is given by the regional court, which decides by means of civil chambers (and in some places also chambers of commerce), usually collegially (three judges); however, in a certain number of cases, the single judge (Zivilprozessordnung, § 349). From the sentences of the local court there is an appeal (by decision of last resort) to the regional court; against the decisions of the latter there is an appeal to the higher regional court and, for cases worth at least 6000 RM., to the supreme court.

In criminal cases, local courts decide on minor offenses by means of individual judges, but generally by means of the court of scabins (Schöffengericht), consisting of a professional judge and two scabins. The sentences of the court of first instance can be challenged, on free choice, or by appeal to the petty criminal chamber (kleine Straffkammer) of the Landsgericht (one judge, two scabini), or for review at the Oberlandsgericht (three judges) only in the case of minor offenses; from the sentence of the court of the scabins there is an appeal to the large criminal chamber of the Landsgericht (three judges, two scabini) or with the revision to the Oberlandsgericht. For crimes such as, for example, perjury, murder and murder, infanticide, serious arson, the court of assizes (Schwurgericht), composed of three judges and six scabins, forms a single college to establish both guilt and sentence and meets at the Landsgericht. Certain special crimes (eg relating to bankruptcy) are judged, according to the emergency decree of June 14, 1932, by the great criminal court as a court of first instance.

In special jurisdiction the highest courts are, alongside the Reichsgericht, the labor court and the Reich court for hereditary farms (Reichserbhofgericht).

Civil trial. – The code of civil procedure (Zivilprozessordnung, ZPO.) Of January 30, 1877 has lost its primitive homogeneity through many additional laws which have brought about profound changes. The text of the notification of November 8, 1933 and of the law of October 24, 1934 is currently in force.

The ordinary trial, up to the moment of the definitive sentence, rests on the principle of the hearing, for which the parties are given the option to adduce arguments and offer evidence. The parties thus have the process itself. The most important principle of the civil process is the principle of immediacy, as a result of which the whole process takes place before all judges in hearings and in the taking of evidence. In general, not exactly, as it is up to the debate, this principle is identified with that of orality, which in Germany is continually studied to intertwine appropriately with the use of writing.

In the assumptions of evidence the principle of immediacy has been neglected a lot in the last decades, especially for the purpose of saving; but now it is again enjoined by the supplementary law of 1933; the taking of evidence through the presiding judge is only allowed to a very limited extent. A more energetic concentration of the process was given by the even more decisive prescriptions aimed at obviating the protraction of the process. For decades, there has been a tendency towards a decisive direction of the trial by the court. The supplementary law of 1933 (§ 138 ZPO.) Also places as a legal axiom the prohibition of lying in the trial. The supplementary law then replaced the deferred oath and the judicial oath by taking the party as a witness, subjecting this evidence to the free appreciation of the judge.

Compulsory execution is regulated in part by the ZPO.; enforcement on immovable property is primarily subject to the Auction and Enforcement Administration Act of 24 March 1897 (text of 20 May 1898, Gesetz über die Zwangsversteigerung und Zwangsverwaltung).

The legal basis for the organization of the Bar in Germany is given by the Bar Law (Rechtsanwaltsordnung) in the text of the notification of 21 February 1936.

Criminal trial. – The Code of Criminal Procedure (Strafprozessordnung) in the text of March 22, 1924 (with numerous subsequent modifications, of which the most notable are those of the law of June 28, 1935) reveals its directives in the position given to the Public Prosecutor and in the configuration of the hearing. The Public Prosecutor has the monopoly of the prosecution and in the case of well-founded suspicions the duty to the same (principle of legality as opposed to the principle of expediency practiced only as an exception).

The criminal trial, in some cases, can go through four phases: the preliminary phase for the collection of the accusation and defense material, the investigation which, opened by the investigating judge and independent from the Public Prosecutor, is carried out in order to enlighten the cause; the intermediate proceeding, intended for the discussion on the opening of the main proceeding, and finally the main proceeding which is closed by the hearing, in which the principles of orality, publicity and immediacy dominate, and by the delivery of the sentence. Some particularities are inherent in the prosecution for crimes of minors, regulated by the law of 16 February 1923 on juvenile courts (Iugendgerichtsgesetz: text of the law of 27 December 1926 and of the regulation of 14 June 1932). From the law for the modification of provisions of criminal law and criminal procedure (Gesetz zur Änderung von Vorschriftlen des Strafrechts und des Strafverfahrens) of 24 April 1934, the People’s Court (Volksgerichtshof) was created, for crimes of high treason and treason of the country (see on the matter the laws of June 28, 1935, April 18, 1936, with the execution regulation of the same day, the regulation of May 4, 1936 and the law of July 2, 1936). On January 1, 1934, on the basis of the law of May 12, 1933, military jurisdiction was re-established. The procedure is in accordance with the Ordinance on Military Criminal Courts (Militärstrafgerichtsordnung, 1 December 1898, text 29 September 1936).

Special Courts. – According to Answermba, the main special courts today are the labor courts, the proceedings of which are governed by the law on the labor court (Arbeitsgerichtsgesetz, AGG.) Of 23 December 1926 (new text of 10 April 1934, modified by law of 20 March 1935). Labor courts are competent, with the exception of ordinary courts, for labor relations specifically assigned to them by law. These are above all disputes concerning the employment relationship, on negotiations prior to the employment relationship or on its consequences and on civil crimes related to said relationship. The procedure tends to a very simple administration of justice, easily understandable and prompt, through a rigorous direction of the process by the president. The new text of the law and the amending law have regulated it from scratch jurisdiction and legal representation. With the exception of the higher bodies (Regional Labor CourtLandesarbeitsgericht, and Reich Labor Court, Reichsarbeitsgericht), in which the intervention of the lawyer is mandatory, lawyers can be procedural representatives, only if they are authorized on a case-by-case basis by the German Labor Front or if they have permission from the President of the Labor Court, since a different representation is absolutely not allowed. The supplementary law on civil trial has innovated only in the suppression of the oath of the parties and in the exclusion of the interrogation of the same under oath in the arbitration procedure.

ConcordatbankruptcyPaulian action. – On 1 April 1935 the new law on the concordat (Vergleichsordnung, VerglO.) Of 26 February 1935 came into force. The German bankruptcy system only knows the compulsory composition after the opening of the bankruptcy procedure. For a long time, the desire for the admission of an arrangement prior to this bankruptcy procedure had been felt. The decree on judicial supervision (Geschäftsaufsichtsverordnung) of 8 August 1914 and, after various modifications, the law on the concordat (Vergleichsordnung) of July 5, 1927, which, however, was criticized for too strong protection of the debtor. The new law on the concordat tends to restore economic life; the unworthy debtor is kept away from the composition procedure, special advantages for individual creditors are excluded and the influence of the composition judge is strengthened. The court exercises strong surveillance. The personal creditors of the debtor who participate in the composition procedure must be guaranteed at least 35% (in some cases 40%) of their claims. If the settlement attempt fails, a decision is made ex officio on the opening of the bankruptcy procedure.

The bankruptcy proceedings – bankruptcy law (Konkursordnung, KO.) Of February 10, 1877 (text of May 20, 1898, only here and there modified and completed after the coming to power of National Socialism) – serves as a judicial procedure for equal satisfaction, pro rata, of all present creditors of an insolvent debtor. Certain decreases, suffered by the debtor’s assets to the detriment of creditors even before the bankruptcy, can be traced back to the assets themselves by means of a right of appeal granted to the mass of bankruptcy creditors. Outside the bankruptcy procedure, this right is regulated, as a singular right of challenge for a damaged creditor, by the law of 21 July 1879 in the text of 20 May 1898 concerning the challenge of legal negotiations of a debtor outside the bankruptcy procedure.

Voluntary jurisdiction. – All civil law acts which require judicial cooperation to bring about a legal effect, but do not fall under contentious jurisdiction according to procedural law, are governed by the law on acts of voluntary jurisdiction (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit, FGG.) Of 17 May 1898, which has been repeatedly modified in individual points. As a complementary national law it regulates in general – then entrusting the refinement in detail to the law of each of the Länder (e.g., the Prussian law on voluntary jurisdiction of 21 September 1899) – process and jurisdiction, especially for the guardianship court and the court for succession, matters relating to registers (e.g. registers of associations, the matrimonial property regime, registers of commerce and cooperatives) and the activity of the land registry and civil status offices. The formal law of the land register has found its discipline, valid for the whole Reich, in the law on the land register (Grundbuchordnung, GBO.) In the text of the notification of 5 August 1935 and settlement of the following 8 August. It contains provisions relating to the authorities of the land register offices, the registrations in the land register, and the procedure in cadastral matters. Important special courts of voluntary jurisdiction are the authorities on the matter of “undivided rural inheritance” (Anerbenrecht), namely AnerbengerichteErbhofgerichteReichserbhofgericht, whose jurisdiction and the related proceedings have been regulated in the regulation on the proceedings concerning “undivided rural inheritance “(Erbhofverfahrensordnung) of 21 December 1936.

As legal experts in the field of the preventive administration of justice, “especially with regard to the documentation of legal facts”, they act as notaries, whose situation is determined by the notarial regulations of the Reich of February 13, 1937, supplemented by regulations of June 26, 1937 and of March 27, 1938. Notaries are charged with public functions and are grouped in the Reich Chamber of Notaries, which is a corporation under public law. They are under the supervision of the judicial administration of the Reich.

Germany Trial Law

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