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2015年11月4日 星期三

Munich 8. A Brush with German Justice (慕尼克.8:與德國法治擦身而過)


This is a building very close to the Hauptbanhof, a building I saw the first day I arrived in Munich. But I did not find out what it was until the day when I was on my way to the Marienplatz. Its a building very much like that of the toy museum there but it was built for a purpose very far from that of providing fun to children. It's one of the law courts.

Unlike in Hong Kong, which follows the common law system of England and Wales with originally three sources of law: the common law, the rules of equity and  statue law and from 1983 on, the Basic Law (the source of our written constitutional law), German law is subject to many different influences: until the Middle Ages, early Germanic law was derived from the laws of the Salian Franks and other tribes but from the Renaissance on, Roman law as set by Justinian in the Corpus iuris civilis.became increasingly important as the basis of its common law (Gemeines Recht) in most parts of the German speaking world and the same prevailed far into the 19th century. As the Holy Roman Empire was a multi-racial and multi-cultural aggregate, there were numerous local variations according to the different local traditions and religions and such laws were eventually codified into some 3000 sets of local rural Weistümer (aka Holtinge or Dingrodel) laws and only in the superior imperial courts of justice, the Reichskammergericht,  were there procedural codes in addition to those of Corpus Iuris Canonici (Canonical law) which formed an important source of the ecclesiastical laws and courts, the old Corpus Iuris Civilis. (civil law). In the 18th century, Prussia established an innovative code of laws with the Allgemeines Landrecht für die preußischen Staaten (General National Law for the Prussian States), a law which
after the July Revolution of 1830,adopted some of the Code Napoleon  which itself was split into the Code civil, the Code pénal and the Code d'instruction criminelle, sources which  strongly influenced the German legal tradition, especially in the Grand Duchy of Baden. For two decades after the unification of Germany in 1871, major legal reforms were instituted to standardize the criminal and procedural laws of different parts of Germany, culminating in the Bürgerliches Gesetzbuch (Book of Civil Law or "BGB"), some of which are still in force today. But the various states still managed to retain some of their own local laws, now incorporated under the the Basic Law.

The most important principle of the BGB is Privatautonomie, which states that all citizens have the right to decide their own affairs without interference from the state, especially in the disposal of their property according to their will and the creation of contracts with partners as they wish. Because of this, most of the rules in the BGB only supplement contractual terms where they do not appear expressly in the relevant contracts. However, in the last few years there has been a tendency towards more regulation, especially between a professional and a consumer, declaring contracts which place an undue burden on one party invalid. Other groups of people that enjoy protection are minors and people in a weak economic position. 

The laws of Germany are interpreted and administered through a system of law courts established and governed by part IX of the Grundgesetz für die Bundesrepublik Deutschland (the Basic Law of the Federal Republic of Germany 1949). Article 92 of the Basic Law  states that "the judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder." Unlike the Anglo-American adversarial system, the German courts follow the Roman inquisitorial system under which the judges are actively involved in investigating the facts of the case, instead of acting merely as an impartial referee between the prosecutor/plaintiff and the defendant under the adversarial system. The courts are traditionally strong:  almost all federal and state actions are subject to judicial review. 
Germany's judiciary is not subordinated to the legislature because the Basic Law directly invests supreme judicial power in the Constitutional Court as well as other federal courts and the courts of each Länder, and decisional law has greater importance, though not to the extent of common law systems. German courts are hierarchically organized as specialist, regional, and  federal courts 

The court system adjudicates
(1) public law (öffentliches Recht), that is, administrative law (civil-government litigation or litigation between two government bodies) and criminal law, and

(2) private law (Privatrecht).

German law is mainly based on early Byzantine law, specifically Justinian's Code, and to a much lesser extent the Napoleonic Code.
There are 5 basic types of Specialized Courts dealing with five different kinds of matters: administrative, labour, social, fiscal, and patent law. Like the ordinary courts, they are hierarchically organized with the state court systems under a federal appeals court plus the Federal Constitutional Court: viz. 


(A)  Ordinary courts, dealing with criminal and most civil cases.
       Criminal Trial courts are organized as follows:
(1)Amtsgerichte  strafrichter   with  1 judge for criminal offences with maximum  sentence of less than two years.
(2) Schöffengericht  with 1 or 2 judges, 2 lay judges  for criminal offenses with maximum jail term between two and four years.
(3) Landgerichte  (große Strafkammer or Staatsschutzkammer)  with 2 or 3 judges, 2 lay judges for cases with maximum jail term exceeding four years, cases where the prosecutor decided to be not tried by Amtsgerichte, and minor political crimes.
(4) Schwurgericht or Wirtschaftsstrafkammer  with 3 judges, 2 lay judges, specially constituted Strafkammer for felonies for capital offences and economics crimes.
(5) Oberlandesgerichte  (Strafsenat ) with 3 or 5 judges for serious political crimes

The appellate courts in criminal matters are composed of:
(1) Landgerichte (kleine Strafkammer) with 1 judge, 2 lay judges for appeal for review of facts and law from the Amtsgerichte.
(2) Oberlandesgerichte  (Strafsenat ) with 3 judges for appeal for error of law from certain decisions of Amtsgerichte as well as appellate decisions of kleine Strafkammer.
(3) Bundesgerichtshof (Federal Court of Justice) ( Strafsenat ) with 5 judges  for appeal for error of law from trial decisions of the Landgerichte and Oberlandesgerichte.


(B)  Specialized Courts
(1)  Administrative law courts.(Verwaltungsgerichte) consist of local administrative courts, higher administrative courts, and the Federal Administrative Court. In these courts, individuals can have wrongful administrative acts overruled.e.g many lawsuits have been brought in administrative courts by citizens against the government concerning the location and safety standards of nuclear power plants. The Federal Administrative Court (Bundesverwaltungsgericht) is the highest administrative law court.
(2) Finance courts (Finanzgerichte), also called tax law courts or fiscal courts, hear only tax-related cases and exist on two levels. The Federal Finance Court (Bundesfinanzhof) is the highest tax law court.
(3) Labour law courts.(Arbeitsgerichte) also function on three levels and address disputes over collective bargaining agreements and working conditions. The Federal Labour Court (Bundesarbeitsgericht) is the highest labour law court
(4) Social law courts.(Sozialgerichte), organized at three levels, adjudicate cases relating to the system of social insurance, which includes unemployment compensation, workers' compensation, and social security payments. The Federal Social Court (Bundessozialgericht) is the highest social law court
(5) The Federal Patent Court hears certain intellectual property cases on patents, utility rights and trademarks. In patent, utility rights and trademark matters there is a bifurcation of judiciary responsibilities in Germany between the Federal Patent Court and the various German Regional Courts. This bifurcated court system has a long tradition in Germany and is based on the notion that decisions of the Deutsches Patent- und Markenamt (German Patent and Trademark Office) shall be checked by a particular court created for that purpose, namely, the Federal Patent Court in Munich.The Court of appeals is in all cases the (ordinary) Federal Court of Justice of Germany.patent

(6) Constitutional law courts, focusing on judicial review and constitutional interpretation.Each one of the Länder has its own state constitutional court. These courts are administratively independent and financially autonomous from any other government body. For instance, a state constitutional court can write its own budget and hire or fire employees, powers that represent a degree of independence unique in the government structure. The courts of each state are also directly authorized the Basic Law for the Federal Republic.The Federal Constitutional Court (Bundesverfassungsgericht, or BVerfG) is the supreme constitutional court established by the constitution or Basic Law of Germany. Since its inception with the beginning of the Federal Republic of Germany, the court has been located in the city of Karlsruhe—intentionally distanced from the other federal institutions in Berlin (earlier in Bonn), Munich, and Frankfurt.
The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institution with the constitution. Constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz (per the "eternity clause"), those being the principles of democracy, republicanism, social responsibility, and federalism.

By far, ordinary courts are the most numerous: there are now 828 ordinary courts (687 local, 116 regional, 24 appellate, one federal), 142 labour courts (122 local, 19 appellate, one federal), 69 administrative courts (52 local, 16 higher, one federal), 20 tax courts (19 local, one federal), 86 social courts (69 local, 16 appellate, one federal) and 17 constitutional courts (16 State Constitutional Courts, one Federal Constitutional Court). 

As a rule, each decision on the initial employment of a judge and lifetime tenure or promotion of a judge is taken by the department of justice. Yet in some of the states there is some kind of a parliamentary body that needs to be heard or even has a say in some of the decisions on careers of individual judges (Richterwahlausschuss). The mostly decisive influence of the administration on the career of judges is exceptional in continental Europe, where mostly bodies of judges, elected by and within the judiciary take this kind of decision (e.g., France: conseil superieur de la magistrature, Italy: consiglio superiore della magistratura). By some it is regarded as a threat to judicial independence that with a view to their personal career judges might be inclined to specially regard possible political effects of their decisions or may choose to support a political party.

Federal judges are picked in an in-camera-procedure by a body composed of a Minister of the federal state, federal MPs and ministers of the states (article 95 para. 2 of the federal constitution). Candidates must be lawyers but do not have to be professional judges. There are neither public hearings, nor would the identity of any candidate even be disclosed to the public. Judicial members of the federal constitutional court are elected in turns by the federal chambers (article 94 of the federal constitution). This decision requiring a large majority, it usually follows a political compromise. Public discussion about candidates is very unusual.

In addition to professional judges, there are also Lay judges (Geschworenen or Schöffen) in Germany, which are short-term, politically appointed, non-professional judges. Except for most crimes for which the trier of fact is a single professional judge and serious political crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit alongside professional judges.Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception.In most cases, lay judges do not directly examine documents before the court or have access to the case file. The only statutory criteria is that lay judges must be citizens that have not been convicted of, or be under investigation for, a serious crime. However, people "ought not" to be chosen if they are under 30 years old, very high government officials, judges, prosecutors, lawyers, policemen, ministers, priests, or have lived in the community less than 1 year.In addition, people may refuse to serve if they are over 65 years old, members of the federal or state legislatures, doctors, nurses, pharmacists if working alone, housewives if overburdened, or have served as a lay judge in the preceding year.Applications can be made to become a lay judge by interested citizens, but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertising, and participation in fine penalty allocation.

The lay judges needed to staff the various tribunals are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councilors. Given the high threshold for inclusion on the municipal council lists, in practice these lists are first compiled by municipal bureaucracies and the political parties in Germany,but some municipal councils rely on the list of residents and generate names randomly. The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) who are also elected by two-thirds of the municipal legislature.Lay judges have historically been predominantly middle-aged men from middle class socio-economic backgrounds. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service employees, compared to only about 12% being blue-collar workers. A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewives, the relatively low number of private sector employees, and relative old age of lay judges

The procedural system of Germany is based on a highly active role of the judge or the judges. In all branches of jurisprudence the judge takes evidence himself, only assisted by the parties or their lawyers, although in some branches the court is limited to proof, referred by the parties. In court, both parties have the same rights and duties. Each side can (in higher courts must) require the services of one or several attorneys. They present facts and evidence for their version of the case of their own accord and without the help of the judge, who then makes his judgement independently. With exception of the social law some parts of the employment law the costs of all the participants of the lawsuit (including the costs of the opponent) have to be paid by the loser. 


This is one of the ordinary courts with both criminal and civil jurisdiction




Litigants gathered in front of the court awaiting their turn in a matrimonial matter


The sign outside the court: it has both civil and criminal juridiction



This is a federal court in Munich



The sign outside the Federal Court



The burden of justice is not light



One of the corridors in the Court



Another corridor of justice



The hall of the court: on the far side is the entrance




The dome of justice: it's round, with light shining through it from the sky




The stairs of justice




Mounting the steps to justice


The grounds of the hall of justice



A reception at one of the rooms of the court for a judge which has produced a book on personal injury claims




The dome of justice at close quarters




One of the judges in his chamber

One of the corridors outside a courtroom, full of documents. it looks deserted.



Various pamphlets on legal rights and holidays




 One of the court rooms, not too big, with tables for both sides




The small public gallery at the back in another court room



The bench for 5 judges with a bench for the lawyers



Some of the federal judges




Part of the façade of the federal court building




A fuller frontal view: very impressive


The other side of the halls of justice


The peaceful garden opposite the court


The statues in the garden


a closer view of the fountain



Towers of justice side by side, local and federal