Constitutions in transition
Constitutions in transition

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Constitutions in transition

3.1.1 Germany

The general shape of civil law legal systems is clear. Germany is only one example among a number of countries that employ a civil law legal system. It is based around five codes:

Substantial codes of law

  • constitution – Basic Law (Grundgesetz (GG))
  • civil code – Bürgerliches Gesetzbuch (BGB)
  • criminal code – Strafgesetzbuch (StGB)

Procedural codes

  • civil law procedural code – Zivilprozessordnung (ZPO)
  • criminal law procedural code – Strafprozessordnung (StPO)

No jury participate in criminal law proceedings in Germany. However, this legal system allows the participation of lay persons in the form of Schöffen. These are persons that volunteered to support the judge, but are not legally trained assistance. They are especially deployed in criminal law proceedings relating to juvenile crimes. In this way, the legal system wants to ensure that the approach to criminals that are not adults is heard and taken into account. It is a way of protecting the under-aged from an unnecessarily strict application of the law. The legally untrained Schöffen influence the judge’s opinion by representing society’s view on juvenile crimes. The youth is looked at as a person with issues and need for protection, not just as a legal subject.

The judge’s role has been explained quite explicitly and does not need much further elaboration. However, it is worth noting that the decisions of the highest German court, the Federal Constitutional Court (Bundesverfassungsgericht), can have an impact on the legal system. This occurs not in the way of creating new law but in the way of effecting the interpretation of existing law or aiding the implementation of new laws.

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