Democratic, federal, legal and social state with a republican form of government. The Basic Law (Constitution), adopted on May 23, 1949, is in force. The Basic Law enshrines fundamental freedoms, the duty of the state to protect human dignity and the right to free development of the individual (this applies not only to Germans, but also to foreigners), the rights and freedoms of citizens, including .h. freedom of assembly, union, movement, choice of profession, etc., the principle of equality, the principle of the rule of law, the principle of separation of powers. The idea of the rule of law is complemented by the principle of the social state: the duty of the state to implement the principle of social justice and protect the socially weak.
The constitutional principle of a federal structure means that not only the federation, but also each of the 16 federal states has statehood. The Basic Law clearly states the division of competencies between the federation and the states, in particular, in the largest 10th section - the division of powers in the tax and budget spheres (the principle of budgetary federalism, the mechanism of financial equalization).
The Basic Law is based on the principle of representative democracy: all power comes from the people, but they exercise it only during elections and transfer its implementation to special legislative, executive and judicial bodies. The Basic Law, taking into account the experience of the Weimar Republic, provides for the restriction or prohibition of the activities of political forces if they seek to cause damage to the democratic system or eliminate democracy even by democratic methods.
The head of state is the federal president. He is elected for a term of 5 years (with the possibility of one re-election) by the Federal Assembly, a constitutional body specially convened for this purpose. The President mainly performs representative functions (primarily in the international legal sphere), accredits and appoints ambassadors, appoints and dismisses federal judges, etc. Based on the results parliamentary elections he proposes to the Bundestag a candidacy for the post of Federal Chancellor and can dissolve the Bundestag if it does not support the Chancellor's declaration of confidence. The president is a supra-party unifying factor, standing above the daily political struggle, but it is he who formulates political and social guidelines for citizens.
The Federal President since July 1, 1999 is Johannes Rau (SPD). His predecessors were: T. Heus (FDP, 1949-59), G. Lübke (CDU, 1959-69), G. Heinemann (SPD, 1969-74), W. Scheel (FDP, 1974-79), K. Carstens (CDU, 1979-84), R. von Weitzsäcker (CDU, 1984-94), R. Herzog (CDU, 1994-99).
The highest body of legislative power and body of popular representation is the German Bundestag, elected by the people for a term of 4 years. The main work on preparing laws takes place in specialized committees. Plenary sessions are usually used for parliamentary debates on major issues of domestic and foreign policy. During its functioning, the Bundestag adopted about 5,000 laws. Most bills are introduced by the federal government, a smaller part by members of the Bundestag or Bundesrat. Bills undergo three readings and are adopted by a majority vote (except for amendments to the Basic Law, which require a qualified majority).
The head of the highest legislative body is the President of the Bundestag. Since October 26, 1998 it has been Wolfgang Thierse (SPD). He has deputies, each of whom represents a parliamentary faction.
As a result of the 2002 elections, the Bundestag was formed with 603 deputies. The ruling coalition of the SPD and Union 90/Greens has 306 (that is, it is only 4 votes above the line absolute majority), the right opposition CDU/CSU and FDP have 295, the PDS has 2 seats.
The second chamber of the German parliament is the Bundesrat. This is a representation of the 16 federal states, and its members are not elected: it is formed from members of the state governments or their representatives; their number depends on the number of inhabitants in the state (North Rhine-Westphalia, Bavaria, Baden-Württemberg and Lower Saxony each have 6 representatives, Hesse - 5, Saxony, Rhineland-Palatinate, Berlin, Saxony-Anhalt, Thuringia, Brandenburg and Schleswig-Holstein - 4 each, Mecklenburg-Vorpommern, Hamburg, Saarland and - 3 each). The functions of the Bundesrat include the approval of federal laws if they affect significant interests of the Länder (especially in the field of public finance). When amending the Basic Law, the consent of 2/3 of the members of the Bundesrat is required. The Chairman of the Bundesrat is elected in a certain order from among the prime ministers of the states for a period of 1 year. He acts as the federal president when he is unable to do so.
The highest executive body is the Federal Government. Formed on October 22, 2002, the government consists of 13 federal ministries: foreign affairs; internal affairs; Justice; finance; economics and labor; consumer protection, food and agriculture; defense; families, elderly, women and youth; health and social care; transport, construction and housing; environment, nature conservation and reactor safety; education and scientific research; economic cooperation and development. 10 ministers are members of the SPD, 3 are representatives of the Alliance 90/Greens bloc.
The head of the highest executive body is the Federal Chancellor. He is the only member of the government who is approved by the Bundestag, and he alone is accountable to it. Only he forms the cabinet, determines the sphere of activity of ministers and determines the main directions of government policy.
Since October 1998, Gerhard Schröder (SPD) has been Federal Chancellor. His predecessors in this post were: K. Adenauer (CDU, 1949-63), L. Erhard (CDU, 1963-66), K. G. Kiesinger (CDU, 1966-69), W. Brandt (SPD, 1969- 74), G. Schmidt (SPD, 1974-82), G. Kohl (CDU, 1982-98).
The Federal Constitutional Court, which is elected on a parity basis by the Bundestag and the Bundesrat, oversees compliance with the Basic Law.
Elections to all bodies of popular representation are universal, direct, free and equal by secret ballot. The right to vote is granted to all citizens over 18 years of age. Elections to the Bundestag are held according to a majority-proportional system: each voter has 2 votes, one of which he gives to a specific candidate in his constituency, and the second for a specific party. Only parties that receive at least 5% of the valid “second” votes or 3 direct mandates can enter the Bundestag.
The main parties are represented in the Bundestag: SPD (chairman - G. Schröder); CDU (A. Merkel); FDP (G. Westerwelle); Union 90/Greens (A. Beer and R. Bütikofer); CSU operating in Bavaria (E. Stoiber); PDS (G. Zimmer).
There are many other parties: in the last elections, in addition to the 6 named, 18 more parties participated in the party list ballots, but none of the latter received even 1% of the votes (the best results are for the right populist and nationalist parties: “Schill” - 0, 8%, Republicans - 0.6%, NPG - 0.4%). A number of parties have regional significance, such as the Danish minority party in Schleswig-Holstein. There are many trade union organizations in the country (about 70) that express and protect the economic and socio-political interests of employees. The largest of them is the Association of German Trade Unions (UNP), which includes 8 separate industry trade unions, the largest of which are Verdi (management and service sector workers) and IG Metal (metallurgy, metalworking and mechanical engineering) - numbering 70 % of the number of SNPs. The total number of members of trade unions included in the UNP is declining: in the end. In 2002 it amounted to 7.7 million people, while in 1998 there were 8.3 million, and in 1993 10.3 million people. There are also some other professional associations operating in the country, for example, the Trade Union of German Officials, the Trade Union of German Employees, and the Association of Christian Trade Unions. But in general, the level of organization of hired workers in the country is below 50%, and in the Western lands - less than 30%. The decrease in the number of trade unions does not mean that the influence and importance of the trade union organizations themselves have also decreased proportionately. They continue to have a strong influence on policymaking.
Germany is different big amount others public organizations and unions: there are more than 300 thousand of them and they include the majority of the country’s population. Thus, in the country there are more than 85 thousand sports societies, covering 1/4 of the population, 2 million people. there are singing societies, etc.
Entrepreneurs are better organized than workers: 80% of entrepreneurs in industry, banking and belong to unions. The Federal Association of German Employers' Unions (FONSR) is the parent organization of employers (private entrepreneurs), designed to realize their socio-political interests. It includes 46 specialized (industry) employers' unions. Together with trade unions, they are two sides of the social partnership mechanism.
The Federal Union of German Industry (FSNP) is the main federal organization that unites 34 industry unions of entrepreneurs. The vast majority of industrial firms are members of one or more business unions. The main traditional task of the FSNP is to express and protect the common interests of entrepreneurs and their unions, coordinate some of their actions, as well as political interaction with the federal government and parliament (and lobbying influence on them when resolving fundamental economic and political issues).
Their own parent unions also exist in craft production, insurance, banking, etc. Only members of the liberal professions (doctors, lawyers, architects, etc.) have 78 unions united in the Federal Union of Liberal Professions.
Important coordinating functions are also performed by the German Association of Chambers of Commerce and Industry (GOTCI), a voluntary association of chambers of commerce and industry representing the interests of companies at the local and regional level.
Germany's domestic policy is aimed at maintaining law and order and ensuring constitutional rights and freedom. With the help of the Federal constitutional court disputes between the federation and the states are resolved, parties and political organizations are checked for compliance with the Basic Law, and guarantees of the rule of law and the administration of independent justice are ensured.
An important component of domestic policy in Germany is immigration policy. The emphasis is on integrating foreigners living in the country while limiting their influx. In 1992, Germany accepted 80% of citizens who sought asylum in EU countries (mainly for political reasons). After the adoption of new legislation in 1993, limiting the right to obtain asylum, the influx of foreigners in Germany began to decrease.
Germany pursues its foreign policy in close alliance with its partners in the European Union and NATO. The main directions of German foreign policy: further development of the EU, deepening integration not only in the economic, but also in the domestic and foreign policy spheres, as well as the formation of a common foreign and security policy; transforming the institutional structure of the EU to increase the effectiveness of the Union in the context of globalization and EU enlargement to the east; ensuring effective integration of new members into the EU; strengthening pan-European cooperation within the OSCE; further development of NATO and transatlantic cooperation, avoiding tension and conflict within the organization when disagreements such as those that arose regarding the operation against; strengthening the role, primarily of the UN, and more active participation of Germany in their activities; strengthening and respect for human rights throughout the world; expansion of partnerships with EU neighboring countries - the Mediterranean, Middle East and CIS regions; security sustainable development in the world, preventing the occurrence of global disasters.
From the German point of view, the sustainability of global development presupposes, first of all, ensuring a fair balance of interests between North and South. Therefore, development assistance remains among the most important priorities its foreign policy. The central tasks remain of disarmament, arms control and non-proliferation of weapons of mass destruction. In relations with the Russian Federation, the German foreign policy leadership adheres to a position of cooperation and agreement, nevertheless remaining within the framework of strict pragmatism.
European policy, partnership with, as well as relations with the EU's neighbors are the absolute priorities of Germany's foreign policy.
Since 1973, Germany has been participating in various peacekeeping activities under the auspices of the UN. Since 1995, Germany's military contingent has been part of the peacekeeping forces under NATO command in and then in Kosovo. In November 2001, the Bundestag, with a majority of only 2 votes, voted for the first time for the participation of 3,900 soldiers in an anti-terrorist operation outside Europe (in) and thereby expressed a vote of confidence in the government.
The armed forces (Bundeswehr) consist of the Army, Navy, Air Force, as well as medical units and support services. Universal conscription is in effect (service period is 10 months). Conscientious objection to military service is permitted: it is replaced by alternative service (13 months). The number of Bundeswehr after 1990 decreased significantly and as of April 2003 amounted to 291,157 people. (including in the ground forces - 199,304, in the naval forces - 24,722, in the air force - 67,131). The armed forces of the Federal Republic of Germany are an integral part of the NATO military structure.
In June 1995, a program was announced for “adaptation of the structure of the armed forces, territorial defense management and deployment of the Bundeswehr,” which marked the beginning of the reorganization of the armed forces and their division into main defensive forces, rapid reaction forces and the basic organization of the armed forces. Defense spending amounts to about 1.5% of GDP (in the 2003 budget - 28.3 billion euros).
The Federal Republic of Germany has diplomatic relations with the Russian Federation (established with the USSR in September 1955).
State in Central Europe.
Territory - 357 thousand square meters. km. The capital is Berlin.
Population - 81.8 million people. (1997), 92% are German.
The official language is German.
Religion - the majority of believers are Christians (Protestants and Catholics).
Throughout most of the Middle Ages and modern times, Germany was in a state of feudal fragmentation. In 1701, one of the largest German states - Prussia - became a kingdom. In 1871, the unification of the country was completed and the creation of the German Empire was proclaimed. As a result of the November Revolution of 1918, the monarchy was overthrown. In 1919, the democratic Weimar Constitution was adopted. 1919-1933 - Weimar Republic in Germany, 1933-1945. - National Socialist dictatorship. In 1949, on the territory of the occupation zones of the USA, Great Britain and France, it was proclaimed federal Republic Germany, and in the Soviet zone of occupation the German Democratic Republic. In 1990, Germany was reunified.
State structure
According to the form of government, Germany is a federation, which includes 16 states. The federal structure has no national basis. Each state has its own constitution, an elected legislative body - a unicameral Landtag (in Bavaria it is bicameral) and a government headed by the Prime Minister.
The Constitution (Basic Law) of 1949 is in force. According to the form of government, Germany is a parliamentary republic. The highest organs of the state according to the Constitution are the Federal President, the Bundestag and Bundesrat, the Federal Government and the Federal Constitutional Court. The political regime is democratic.
Legislative power is exercised by Parliament, which, in accordance with the Constitution, is considered unicameral, but in fact consists of two chambers - the Bundestag (literally: Federal Congress) and the Bundesrat (literally: Federal Council). The parliament itself is the Bundestag, which consists of 496 deputies elected by direct universal elections for a period of 4 years. Article 50 of the Basic Law characterizes the Bundesrat as the body through which the states participate in the legislation and administration of the federation and in the affairs of the European Union. The Bundesrat consists of 69 people appointed by the state governments for 4 years from among its members. Each land has from 3 to 5 votes depending on the population. The chambers elect their chairmen and form permanent committees. Meetings of chambers are usually open, unless deputies decide to hold a closed meeting. The Basic Law defines the range of issues relating to the area of exclusive legislative competence of the federal parliament and to the area of competing legislative competence of the center and the states. In addition, Article 75 of the Basic Law lists those issues on which parliament can issue general regulations.
The procedure for adopting federal laws is as follows. The bill is adopted by the Bundestag and immediately transmitted to the Bundesrat. If the Bundesrat does not approve the bill, it can demand the convening of a conciliation committee within two weeks, in which members of both houses are represented. If the committee proposes any changes to the adopted bill, it must be reconsidered by the Bundestag. A bill approved by the Bundestag a second time may be rejected again by the Bundesrat within a week. Then the bill is sent to the Bundestag for the third time, and if a majority of the members of the Bundestag vote for it, it is considered adopted.
The Bundestag also has control powers over the government. They manifest themselves in the forms of interpellations (requests), oral questions, in the work of investigative commissions, and in the right to demand the resignation of the government.
Head of State - Federal President, elected by a special body - Federal Assembly for 5 years. The powers of the President are typical for the head of a parliamentary republic. He promulgates laws, participates in government meetings, appoints and dismisses officials, and has the right to pardon. The President is the representative of the Federal Republic of Germany (FRG) in relations with other states. On behalf of the Federal Republic of Germany, he concludes treaties with them, accredits and receives ambassadors. Most acts of the President require mandatory countersignature (signature) of the head of government or the relevant ministers who are responsible for them.
All executive power belongs to the Federal Government, headed by the Federal Chancellor. In addition to the latter, the government includes the vice-chancellor, ministers heading ministries, and ministers without portfolio. The President nominates a candidate for the post of Chancellor, who is elected by the Bundestag (if he does not receive a majority of the votes of the members of the Bundestag, the President can dissolve the chamber). Ministers are appointed and dismissed by the President on the proposal of the Chancellor. The powers of the government are very extensive. In fact, it carries out all the functions of governing the state. His position in the field of legislation is also quite strong. The government has the right of legislative initiative, and its bills have priority. If such a bill is rejected by the Bundestag, the President, at the proposal of the government and with the consent of the Bundesrat, may declare a state of “legislative necessity”, and then the approval of the Bundesrat is sufficient for the adoption of this bill.
In accordance with the Basic Law, members of the government are responsible only to the Chancellor.
The role of the Chancellor in the state mechanism of the Federal Republic of Germany is extremely large. In fact, it determines the main line of the country's domestic and foreign policy. If he resigns, the entire government must resign. The Bundestag cannot express no confidence in the entire government or its individual members, but only in the Chancellor. The Chancellor is removed from office only if a new Chancellor is elected (the so-called constructive vote of no confidence - as opposed to a destructive vote, which does not require a new candidacy for the post of head of government).
Legal system
general characteristics
The foundations of the legal system of Germany were laid after the unification in 1867 of a number of states under the leadership of Prussia into the North German Union, which then became, in 1871, the German Empire. At the same time, for quite a long time, before the publication of the corresponding all-German laws, the legislative acts and legal customs of the principalities, cities and other territorial entities included in it continued to operate in the empire. Legislation recreated in the 19th century. The all-German state was developed mainly on the basis of the laws of Prussia, Bavaria and Saxony and, to a lesser extent, other states. The Prussian Land Code of 1794, which covered many branches of law, the Bavarian Criminal Code of 1813 and the earlier Bavarian Judicial and Civil Codes of 1753 and 1756, the Saxon Civil Code of 1863, the Hanoverian Code of Civil Procedure of 1850 had a great influence. On the territory of some states that became part of the German Empire, which were once occupied by Napoleon’s army, the French Civil Code of 1804 and other Napoleonic codes introduced during that period remained in force. The influence of these laws on the formation of the legislation of the German Empire is obvious. Finally, when preparing projects, common law was also taken into account, which was a complex interweaving of norms dating back to Roman and canon law and the legal customs of the ancient Germans.
With the formation of the North German Union, a slow but consistent process of publishing all-German laws began, during which the previously developed Commercial Code of 1866 and the Criminal Code of 1871 were initially adopted, then the Civil Procedure and Criminal Procedure Codes, the Law on the Judiciary of 1877 and only in 1896 - the Civil Code (these codes are called codes according to the terminology accepted in Russian pre-revolutionary literature).
Many of the codes and other laws adopted during this period continue to be in force, taking into account the changes and additions made to them during the period of the German Empire, which existed until 1918, during the period of the bourgeois-democratic Weimar Republic (1919-1933) and after the formation of the Federal Republic of Germany in 1949. Some of the legislative acts and changes in legislation from the period of the Nazi dictatorship (1933-1945) remain in force, since they were not repealed either by the relevant decisions of the Allied Control Council, which held all power in Germany in 1945-1949, or by legislative bodies or bodies of constitutional supervision of the Federal Republic of Germany (thus, the term “Imperial Law” is retained in the names of some acts).
In 1990, the German Democratic Republic joined the Federal Republic of Germany. The most important stage of this process was the first state agreement on the economic, monetary and social union of the Federal Republic of Germany and the German Democratic Republic, which entered into force on July 1, 1990. According to this agreement, all legislation of the German Democratic Republic in the economic and social fields was repealed, and the laws of the Federal Republic of Germany were introduced in its place. On August 31, 1990, the second state treaty was signed - on the mechanism for the entry of the GDR into the Federal Republic of Germany, and on October 3, 1990, the reunification of Germany took place, after which all the laws of the Federal Republic of Germany, its legal and judicial systems were successively extended to the territory of the German Democratic Republic.
The Constitution (Basic Law) of 1949 is of decisive importance in the system of current legislation of the Federal Republic of Germany. This document, which opens with a short preamble and a section on the fundamental rights of citizens, regulates in detail the issues of relations between the federation and all 16 states included in it - subjects of the federation, and also defines the system authorities, management and justice. In the field of legislation, competence is distributed in such a way that a vital role belongs to the federation, and the lands retain the regulation (in the order of competing competence) of issues related to education and culture, the activities of local authorities, management and police, etc. According to Article 73 of the Basic Law, the federation has exclusive competence on the most important issues, including including in the field of external relations, defense, monetary circulation, citizenship, cooperation between the federation and the states. Article 74 defines the competing competence of the federation and the lands (the exclusive competence of the lands is not fixed in the Constitution).
When interpreting laws in Germany (unlike many other countries) great importance attached to the materials of the commissions for the preparation of relevant acts.
Along with legislative acts, regulations issued by the Federal Government, federal ministers or state governments are recognized as important sources of law. Other by-laws play a much smaller role. Arbitrage practice in Germany has not traditionally been considered a source of law. Nowadays, the Federal Republic of Germany recognizes the important role of the Federal Constitutional Court and other higher judicial institutions, whose decisions are considered as a source of law both when applying the law and, especially, in the event of detection of inaccuracies or gaps in the legislation. Customs have essentially lost their role as sources of law.
In the period 1958-1963. in part III of the Bundesgesetzblatt, the “Collection of Federal Law” was published - a collection of the current legislation of the Federal Republic of Germany, systematized into nine “main areas of law”: 1) state and constitutional law; 2) management; 3) justice; 4) civil and criminal law; 5) defense; 6) finance; 7) commercial law; 8) labor law, social security, provision for war victims; 9) communications, means of communication, water transport.
Civil and related
branches of law
One of the most important acts in the system of current legislation of the Federal Republic of Germany remains the German Civil Code of 1896 (GGU), which at one time had a significant impact on the development of civil legislation in many countries. GGU was the result of more than 20 years of preparatory work German civilists who managed to combine the traditional construction of civil law institutions, characteristic of the German legal school, with the needs of the capitalist development of Europe at the end of the 19th century. Despite the somewhat abstract and overly theoretical nature of many norms, from the point of view of legal technology, the GGU is recognized as very perfect, in particular in its structure, rationality of presentation, and the unity of the terminology used. In a certain sense, it rivals the French Civil Code of 1804 in its significance and influence.
In the GGU, in contrast to the French Civil Code, the General Part is highlighted, which forms the first book (§ 1-240). It formulates institutions and norms that are generally valid for all civil law, and partly for other branches of law, and also sets out norms relating to the status of physical and legal entities, determination of legal capacity, expression of will, calculation of statute of limitations, and some other norms. In general, the structure of the very voluminous GGU, numbering 2385 paragraphs, corresponds to the doctrine of pandect law, which has received the greatest recognition among German civilists. This was manifested, in particular, in the separate interpretation of issues of the law of obligations and the right of ownership. Book two of the GGU is devoted to the law of obligations (§ 241-853), book three to property law (§ 854-1296), book four to family law (§ 1297-1921) and book five to inheritance law (§ 1922-2385). According to researchers, in the sections devoted to property rights, and especially in book three, the influence of German common law was to a greater extent, and in the section on obligations - the influence of Roman law.
To date, the GGU has not undergone any significant changes. Some complementary acts also participate in the regulation of civil law relations, the most important of which is the Law on general conditions treaties of 1978. In turn, the Constitution of 1949 contains norms essential for civil law. In particular, it established guarantees of property against arbitrary compulsory alienation and proclaimed a number of other personal and property rights, including equality between men and women, the rights of illegitimate children and the right of inheritance.
The second book of the GGU (“Law of Obligations”) sets out both general rules relating to the conclusion and execution of any contracts, as well as rules governing their specific types (purchase and sale, barter, loan, hiring, contract, etc.) and obligations from unjust enrichment and misconduct. Among the latter, violations of “public and commercial morality” are specifically highlighted.
In book three ("Property Law"), the institutions of property, possession and easements - the rights to use someone else's real estate - are developed in detail.
In the field of marriage and family law, the provisions of the original version of the State Civil Code, which allowed inequality of the sexes and illegitimate children in relation to legitimate ones, have now been changed by legislative acts that followed the adoption of the Constitution of 1949, in particular the Law on Equality of Husband and Wife in the Field of Civil Law of 1957 and the Law on the Legal Status of Illegitimate Children of 1969. The Federal Constitutional Court has also repeatedly declared certain provisions of the State Civil Code regarding the powers of spouses unconstitutional. Nowadays, in this area of legal regulation, it is not so much the provisions of the State Civil Code that apply, but rather independent acts adopted over the past decades. These included the Marriage Act 1946 as amended, the Adoption Act 1976 and especially the First Marriage and Family Law Reform Act 1976.
Marriage, according to the current legislation of Germany, must take place during a civil ceremony, and dissolution - in court, and one of the grounds for a claim for divorce is the fact that the spouses have lived separately for three years. Those entering into marriage can define their property relations in a marriage contract, the terms of which they have the right to change during the marriage.
Inheritance is currently regulated mainly by the norms of Book Five of the State Civil Code and provides for inheritance by law and by will. The following order of inheritance has been established by law: descendants of the testator, his parents and their descendants, his grandparents and their descendants, etc. The rights of the surviving spouse, who is recognized as one of the first-degree heirs, are specifically stipulated. Allowed various shapes wills: notarial, written, and also oral in the presence of three witnesses. When inheriting by will, the rights of the children and parents of the testator and surviving spouse are ensured, who can be deprived of their share of the inheritance only for justified reasons.
The trade law of Germany is now regulated by a complex of legislative acts, the most important of which is the German Trade Code (GTU) of 1897, which replaced the All-German Trade Code of 1861. Although the GTU acts as a supplement to the GGU, it represents a noticeable phenomenon in the history of bourgeois law. The subject of regulation of the GTU are only transactions carried out by merchants or trading partnerships equated to them.
GTU consists of four books. The first book defines in detail the concepts of “merchant”, “trading company”, “sales representative” and the rules for maintaining trade books. Book two contains general provisions about trading partnerships. Book three is devoted to trade transactions (purchase and sale, transport delivery, rental of premises for storing goods, etc.). Book four - regulation of maritime law, including issues of trade, transport and insurance.
Many provisions of the GTU were repealed over time or became invalid due to the adoption of new laws regulating in detail individual institutions of trade law. Among them important place occupies the Law on joint stock companies 1965, which consists of 5 books and regulates most issues related to the establishment, internal structure, activities and liquidation of joint-stock companies, with the liability of their founders and officers. There are also the Unfair Competition Act 1909 and the Anti-Restraints of Competition Act 1957 (both as amended), the Promotion of Economic Stability and Growth Act 1967, the General Conditions of Sale Act 1976 and other acts.
In the regulation of labor relations, along with the legislative acts of the center, the norms of the state constitutions, as well as decisions of the Federal Labor Court, are important. In this area, the Law on Promotion of the Right to Work of 1969, which has undergone several dozen amendments since its publication, the Law on Minimum Working Conditions of 1952 and the Law on Minimum Holidays for Employees of 1953, the Law on Medical Supervision, is currently applied. Workplace Safety Engineers and Other Occupational Safety Professionals Act 1973, Gender Equality at Work Act 1980, Promotion of Vocational Training through Planning and Research Act 1981, Employment Promotion Act 1985 and many other regulations.
During the existence of the Federal Republic of Germany, a number of acts were adopted providing for a certain participation of workers in the management of enterprises and associations through representation in production councils, and in the coal and steel industries, representatives of workers should make up half of the members of the production council, and one of their representatives should be included in the board of managers (laws on structure of enterprises 1952 and 1972 and other acts). In Germany, the principle of “freedom of collective agreements” has been proclaimed, allowing trade unions on behalf of workers to enter into agreements with employers on rates wages and other working conditions (in some cases, the collective agreement also applies to workers who are not members of the given trade union).
The right to form a trade union for the purpose of “protecting and improving working conditions and economic conditions,” as well as the corresponding right of entrepreneurs to create their own associations, is enshrined in the Basic Law (Article 9). In turn, the right of workers to strike is only derived from the above and other provisions of the Constitution of the Federal Republic of Germany, but is not directly mentioned in it (this right is enshrined in the constitutions of some states). The criteria by which the “legality” and legality of a strike are determined, as well as the real legal status of its organizers and participants, were established in Germany mainly on the basis of decisions of the Federal Labor Court. These decisions recognize as illegal strikes that undermine the “common good,” political strikes, solidarity strikes, strikes of civil servants, etc. An essential element of regulation labor relations in Germany are the “profession bans” established in government decrees of 1972 and 1976. and in the Joint Statement of the Federal Chancellor and the State Prime Ministers. They provide for refusal of admission to public service and dismissal from it for persons belonging to parties that pursue “unconstitutional goals.”
The Federal Republic of Germany has a widely developed social insurance and welfare system, the funds of which are formed partly from the state budget, partly from contributions from entrepreneurs and to a large extent through deductions from employees' wages (there are other, less significant sources of replenishment of these funds).
German legislation provides for the payment of various types of unemployment benefits, assistance in retraining those who have lost their jobs, and incentive measures for entrepreneurs opening new jobs. There is a system of old-age pensions for workers and employees, as well as rural owners, disability pensions in connection with occupational diseases and industrial accidents. Benefits are paid for temporary disability, maternity benefits, and benefits for raising children. Under certain conditions, additional payments are made to people renting housing, and social assistance is provided to young people and those who find themselves in difficult living conditions. Legislation on all these issues is a complex conglomerate of acts, including some sources of labor law, in particular the Law on Promotion of the Right to Work of 1969 (it sets out measures to assist the unemployed, etc.). The central place in the system of legislation on social insurance and security is occupied by the Social Code, consisting of ten books, which came into force in 1975-1982. The laws on social security (as amended in 1982), on federal child benefits (as amended in 1986), and on social assistance (as amended in 1987) also retain their independent significance.
Over the past decades, a movement in favor of protecting the environment from pollution, caused primarily by car exhaust gases and waste, has been very actively developing in Germany. industrial production. Under the influence of supporters of this movement, a system of environmental regulations arose as an independent branch of legislation (most of these acts are federal). An Act passed in 1974 established the Federal Ministry of the Environment. Relevant departments established in individual states monitor established standards for the proper quality of water and atmospheric air and, together with the federal authorities and the public, fight against entrepreneurs and other violators of environmental legislation. Important This struggle also emphasizes the improvement of the taxation system according to the principle “who pollutes the most, pays more.” Among environmental laws, the predominant acts are those aimed at preventing specific types of harmful effects on the environment: the Law on Measures to Ensure the Elimination of Waste Oils of 1968 (as amended in 1979) and the government decree of 1987 adopted in development of this Law, the Law on the Reduction of air pollution due to lead additives in diesel fuel 1971, Aircraft Noise Protection Act of 1971, Air Pollution, Noise, Vibration and Similar Pollution Protection Act harmful influences 1974, the Law on Preventive Protection of the Population from Harmful Radiations of 1986, the Wastewater Law (as amended in 1987) and the Nature Conservation Law of 1976 (as amended in 1987), which aims to protect landscapes, flora and fauna.
Civil procedure in Germany is regulated by the Code of Civil Procedure, adopted simultaneously with the Law on the Judicial System and the Code of Criminal Procedure in 1877 (in force since 1879). During its existence, this Code has undergone relatively minor changes, mainly associated with the publication of the German Civil Code of 1896 and the German Commercial Code of 1897 and with reforms in the judicial system. In 1950, a new edition of the Code of Civil Procedure was published, taking into account previous changes.
Criminal law
The current criminal legislation of Germany is largely based on the German Criminal Code of 1871 (the historical name of the Code). It was based on the Prussian Criminal Code of 1851, which underwent significant additions and changes. The Criminal Code of 1871 basically corresponded to the theoretical concepts of the classical school of bourgeois criminal law. He declared the formal democratic principles of bourgeois legality and carefully regulated the institutions of the General and Special parts of criminal law. It enshrines the principle that only acts that are expressly prohibited by law at the time of their commission are punishable. All of them were divided into crimes, misdemeanors and violations - depending on the severity of the punishments provided for them by law. The punishment system included the death penalty, various types of imprisonment (prison, confinement in a fortress, arrest), fines, confiscation of property and loss of rights. The use of corporal punishment, which was permitted by the legislation of some of the states that became part of the German Empire, was not provided for by the Code of 1871. The death penalty, which had previously been abolished in Saxony and three other German states, was reintroduced throughout the German Empire with the adoption of the Code (the sentence was carried out by cutting off the head).
Before the establishment of the fascist dictatorship in Germany, commissions were created more than once to reform the Criminal Code of 1871. They prepared eight drafts of the new Code, none of which were implemented. However, during the period of the Kaiser's Empire and the Weimar Republic (1919-1933), several dozen changes and additions were made to the text of the Code, which were mainly of a private nature. Criminal laws issued in Germany during the Nazi rule and partially included in the Criminal Code served as the justification for the regime of lawlessness, mass repression and terror created in the country. After the defeat of fascism and by virtue of the Potsdam Agreements (as well as the decisions of the Allied Control Council, which exercised supreme power in the country during its occupation), throughout Germany, the criminal laws adopted from 1933 to 1945 were in principle repealed, and the Criminal Code was restored. as amended until 1933
Almost soon after the formation of the Federal Republic of Germany in 1949, preparations began for the reform of the Criminal Code of 1871. Since 1951, the Bundestag began issuing the so-called laws on changing criminal law, which mainly introduce private additions to the Special Part of the Criminal Code, carry out general modernization, “cleaning up "Criminal Code from outdated provisions, etc. For more radical changes affecting the basic institutions of criminal law, issues of punitive policy, the system of punishments and other measures of repression, Germany used a different form - the so-called laws on criminal law reform. Since 1954, the work of the Bundestag commission on the “great reform” began. The commission presented several preliminary and then an official draft of the new Criminal Code (1962), which was extremely reactionary and focused on imprisonment as a deterrent. In contrast to this document, a group of criminology professors presented in 1966 an “alternative project” that proposed a more flexible punitive policy and a liberal interpretation of the objectives of criminal legislation (widespread use of conditional refusal to impose punishment, the idea of resocialization of prisoners, etc.). Created in 1966, the Bundestag Special Committee on Criminal Law Reform tried to find a compromise by eliminating the most reactionary provisions of the 1962 draft and accepting some of the demands of the authors of the “alternative draft”, in particular on conditional sentencing and on the wording of certain articles relating to the most important legal institutions . The Committee considered it expedient to limit the reform to only the General Part of the Criminal Code. In a number of laws on criminal law reform adopted since 1969 (their entry into force was delayed more than once), a new edition of the General Part of the Criminal Code was approved and changes were made to the articles of the Special Part of the Criminal Code of 1871, which was left in force. To harmonize the two disparate parts of the Criminal Code, in 1974 an Introductory Law to the Criminal Code was published, numbering 326 articles - the largest in volume of all previously adopted in Germany. As a result of the reform, on January 1, 1975, the Criminal Code came into force in Germany, the General part of which was drawn up in the 60s. XX century, and a special part are the articles of the Code of 1871, although they underwent significant changes, but retained the previous system, numbering, and many wordings. After the “great reform” in Germany, separate acts were issued concerning some of the most dangerous crimes, in particular, laws on combating economic crime (the first - in 1976, the second - in 1986. ), Anti-Terrorism Law of 1986. Taking into account the accumulated changes, a new edition of the Code was published in 1987.
The latest amendments to the German Criminal Code were introduced in 1994-1995. 5 laws and a number of others. In particular, the rule on bribery of deputies was introduced into the Special Part (§ 108e), liability for homosexual acts was excluded (§ 175); The Law of June 27, 1994 significantly changed the 28th section of the Special Part “Criminal acts against the environment”, etc.
The current version of the German Criminal Code does not cover the entire range of criminal offenses - according to West German lawyers, regulations relating to them are contained in more than four hundred laws. An important innovation in the General Part of the Criminal Code, in force since 1975, is the abandonment of the previous three-member classification of criminal acts. From now on, they are all divided into crimes - those for which they face imprisonment for one year or more, and misdemeanors - for which they face imprisonment for a shorter period or a fine. As for “violations” - the least serious criminal offenses under the previous classification (they were punishable by arrest for up to six weeks or a small fine), most of them are now considered administrative offenses (primarily minor traffic violations). According to the Law on Administrative Offenses of 1968 (as amended in 1975), such illegal actions are punishable by a fine of up to 2,000 marks, as a rule. In 1984, the scope of administrative violations was significantly expanded.
The current criminal legislation of Germany provides for the so-called dualistic system of criminal sanctions: punishment and, along with them, correctional and security measures, which are prescribed depending on the “degree of danger posed by the offender.” The actual punishments include imprisonment and a fine (main punishments), as well as a ban on driving a vehicle for a period of one to three months (additional punishment). The death penalty was abolished by the Constitution of 1949 (Article 102), which excluded the use of this measure by the courts of the Federal Republic of Germany even for the most serious crimes of the Nazis. Imprisonment, introduced as a single form of punishment to replace the previous various types, can be imposed either for life or for a term (up to 15 years). Issues related to the regime of serving imprisonment, transfer from one punitive institution to another, etc., are decided not by the court that passed the sentence, but by the judicial chambers for the execution of sentences at the state courts. A sentence of up to six months' imprisonment can only be imposed if there are "special circumstances", taking into account harmful effects conclusions. The fine is imposed in “daily rates” (ranging from 5 to 360 rates) with the amount of one rate ranging from 2 to 10,000 marks, depending on the property status (usually the net income) of the convicted person.
The system of correctional and security measures provided for by the current legislation of the Federal Republic of Germany includes, first of all, measures related to deprivation of liberty: placement in a psychiatric hospital, in an isolation ward for alcoholics and drug addicts for up to 2 years, as well as preventive detention or “internment for security purposes” for a period up to 10 years, additional deprivation
criminal process
Soon after the publication of the Criminal Code of 1871, the German Empire adopted the Law on the Judicial System of 1877 and the Code of Criminal Procedure (Code) of 1877. Both of these acts are considered to be in force to this day, although in updated editions that preserve their general structure and wording separate provisions. The Law on the Judicial System, to which the most important recent changes were made in 1975, distributes competence between the courts various systems, determines the jurisdiction of courts of general competence of the relevant authorities, regulates the organization of their activities, the rules for the meeting and voting of judges and other issues. The Code of Criminal Procedure of 1877, prepared largely under the influence of the French Code of Criminal Procedure of 1808, put the suspect in a powerless position during the investigation conducted by the police, but gave some rights to the accused (including the participation of a defense lawyer) during the preliminary investigation conducted by the prosecutor's office, and also an adversarial form of litigation with significant discretionary powers given to the presiding officer. During the period of the Nazi dictatorship, most procedural guarantees for the accused were abolished, and, in essence, the arbitrariness of judges was legally justified and established special courts for reprisals against opponents of the Nazi regime (Supreme People's Court, special courts of the lower level, etc.). Corresponding changes were made to the Law on the Judicial System and the Code of Criminal Procedure.
After the overthrow of fascism, the Law on the Judicial System and the Code of Criminal Procedure as amended in 1924 came into force throughout the entire territory of the occupation zones (by decision of the Control Council). Since the formation of the Federal Republic of Germany, the Code of Criminal Procedure has been significantly amended and supplemented, in particular by the Law on Minor Reform of Criminal Procedure of 1964: it expanded the rights of the accused to defense. Some of these changes and additions, in order to combat terrorists and other dangerous criminals, limited the procedural rights of the accused. Over the past decades, several editions of the Criminal Procedure Code of 1877 have been published - in 1950, 1964, 1975. Finally, in 1987, along with the new edition of the Criminal Code, a new, currently valid edition of the Criminal Procedure Code was published, still called the Code of Criminal Procedure of 1877. Significant amendments to its text were made by the Law on Combating Illegal Drug Trade and Other Manifestations of Organized Crime of 1992.
Judicial system. Control authorities
The Constitution of the Federal Republic of Germany distinguishes 5 main areas of justice (general, labor, social, financial and administrative) and establishes 5 corresponding court systems, each of which is headed by its own supreme body. At the same time, general courts have jurisdiction over all civil and criminal cases that are not within the competence of administrative justice bodies and other specialized courts. The activities of general courts are regulated by the Law on the Judicial System, relevant laws and regulations on them.
The Supreme Federal Court heads the system of general courts. It is located in Karlsruhe and consists of the chairman of the court, the presidents of the senates and members of the court. The Supreme Federal Court also has judicial investigators who prepare for the hearing of certain categories of criminal cases, the verdicts of which are appealed to this court. The Supreme Federal Court includes 11 senates for civil cases, 5 for criminal cases and 7 for consideration of special issues (cartel cases, lawyers, notaries, etc.).
The competence of the Supreme Federal Court in criminal cases includes the consideration of cassation appeals against the verdicts of the highest courts of the Land, rendered by them in the trial of the case at first instance, as well as against the verdicts of the jury courts and the grand chambers of the Land Courts, if they are not subject to cassation appeal to the highest court of the Land. The Supreme Federal Court may reconsider the case based on newly discovered circumstances in the event of both a conviction and an acquittal. Since 1969, he has not tried criminal cases at first instance.
The competence of the Supreme Federal Court for civil cases includes the consideration of cassation appeals against decisions made by the highest courts of the land. At the same time, he accepts for consideration complaints with a claim amount of up to 40 thousand marks with the permission of the highest court of the land, and a large amount- on your own initiative.
In Germany, cassation is understood as an appeal (revision) of a sentence or court decision on the grounds of violation of the law or its incorrect application, but not on the grounds of compliance of the verdict with the actual circumstances of the case. Cassation appeals are considered by the senates of the Supreme Federal Court, consisting of 5 members, headed by the chairman of the senate (some issues can be resolved by panels of 3 judges or individually). The Senate may reject the cassation appeal or recognize it as justified, in which case it has the right to either instruct a lower court to re-examine the case or make its own verdict or decision on it.
In the Supreme Federal Court, large senates are formed for civil and criminal cases, respectively, which make decisions on issues of fundamental importance for the relevant branch of law. The large senates include the President of the Supreme Federal Court (he presides over both Senates) and 8 members of the court, appointed by the President for a 2-year term. If it is necessary to eliminate discrepancies in the positions of the senates in civil and criminal cases, a joint grand senate is convened, which consists of the chairman of the Supreme Federal Court and all members of the large senates.
Of the general courts, only the Supreme Federal Court is a federal institution, and all lower ones are courts of the corresponding state. There are certain differences in the structure and competence of the general courts of individual states, but they are not significant.
The highest courts of the land act as courts of appeal and cassation and as courts of first instance. They are formed in all states included in the Federal Republic of Germany, ranging from one to four. (In Bavaria, the largest of them, there are 3 highest state courts and the Bavarian Supreme Court in Munich, which, along with the powers of one of the highest courts of the state, carries out in some categories of civil and criminal cases the functions of the Supreme Federal Court as an instance of cassation for the Bavarian courts.) In total, in Germany by 1990 there were 18 highest courts of the state and one such court in Berlin , where it is called Kammergericht (trial chamber).
Within each highest court of the land, headed by a chairman, the required number of senates for civil and criminal cases is formed, headed by their chairmen. As a court of first instance, the criminal senate, consisting of 5 professional judges - members of the highest court of the land, hears cases of treason, espionage, terrorist acts, etc. or cases of crimes that are within the jurisdiction of a lower state court, but are considered to be particularly significant or complex. As a cassation instance, the civil senates, consisting of 3 members of the highest court of the land, consider appeals against decisions and rulings of lower courts (some issues can be decided by judges alone). Criminal senates, consisting of 3 members of the highest court of the land, consider cassation appeals against sentences of district judges that are not subject to appeal, against sentences passed by land courts during an appeal, as well as against sentences passed by jury courts or grand chambers of a land court, but only in the case , if the cassation appeal is brought solely on the grounds of violation of the norms of land legislation, and not federal laws.
Land courts (by 1990 there were 92 of them in Germany) hear cases at first instance and at second instance (consider appeals against decisions and sentences of lower courts). Within each land court, headed by its chairman, chambers are formed for civil (including commercial) cases and for criminal cases. The civil chambers sit in a composition of 3 professional judges, headed by the chairman of the state court or the chairman of the chamber. Cases that are not of great complexity can be considered by judges alone. Chambers of commercial affairs operate as part of a presiding judge - a member of the land court and 2 non-professional judges equal to him, appointed for 3 years from among experienced businessmen based on the conclusion of the chambers of commerce and industry. Some categories of disputes are resolved by the chairman of the chamber alone. According to the Law on the Judiciary, commercial cases include a clearly defined range of cases on disputes arising between participants in transactions, members of trading partnerships, disputes over bills, on the application of the Law on Checks, on the protection of trademarks, etc.
The competence of the chambers for civil and commercial cases includes the consideration at first instance of cases with a claim amount exceeding 3,000 marks, as well as cases of establishing paternity and certain categories of claims brought against the treasury, against judges and employees in connection with exceeding their official powers and etc. The chambers consider appeals against decisions and rulings of district courts, except for those categories of cases for which complaints are brought to the highest courts of the land. Complaints against decisions of local courts for claims amounting to 500 marks are not accepted.
The criminal chambers of the state courts hear at first instance cases of all crimes that are not within the competence of the district courts or the highest courts of the state. Their jurisdiction includes cases in which imprisonment for a term exceeding 3 years or forced placement to a psychiatric hospital. Cases at first instance are considered either by the criminal chamber, which acts as a jury, or by the large criminal chamber. Until 1975, the jury in Germany consisted of 3 professional judges and 6 sheffens - this is how jurors are called in Germany who participate in the trial of a case and, together with professional judges, make decisions on the guilt or innocence of the defendant and on the imposition of punishment. Nowadays the jury consists of 3 professional judges and 2 sheffens. It is convened if necessary to consider a criminal case on charges of premeditated murder or other crimes involving the creation of danger to human life (arson, explosions, attempted hijackings, robbery and extortion in aggravated circumstances, etc.).
The Grand Chamber of Criminal Cases, consisting of 3 judges and 2 sheffens, considers the bulk of cases of criminal attacks within the competence of the state courts. In those courts in the district of which the highest court of the land is located, a chamber is formed for cases of state crimes, mainly related to “threats to the democratic rule of law” and violation of prohibitions on the activities of illegal organizations. Since 1976, in many regional courts, large chambers for criminal cases have been separated into chambers for economic crimes related to violations of legislation on unfair competition, financial activities enterprises, taxes, etc. The Grand Criminal Chamber hears, on behalf of the State Court, appeals against sentences passed by the Scheffen Court in the district court.
To consider appeals against sentences passed by district judges alone, a small chamber for criminal cases is formed within the regional court, which consists of 1 member of the regional court and 2 sheffens.
District courts (their number was consistently reduced and by 1990 there were 550 in Germany and 7 in West Berlin) represent the lower level of the general court system. They may consist of one or several district judges (in some district courts there are over 30 of them). If there is only 1 judge in a district court, a permanent deputy is appointed from among the judges of the land. Civil cases are heard here by a single judge. The district judge has jurisdiction over property disputes up to 3,000 marks, as well as, regardless of the amount of the claim, disputes about the rental of housing and other premises, disputes between clients and hotel owners, between passengers and drivers Vehicle, tourists and travel agencies, etc. In district courts, there are one or more judges who specialize in considering the entire range of matrimonial and family cases, including divorce, payment of maintenance for children, etc.
Criminal cases in a district court can be heard either by a single judge or by a court of sheffens. The district judge alone hears cases brought by private prosecution, in addition, criminal acts classified as misdemeanors, and, finally, at the proposal of the prosecutor, cases of certain crimes for which a more severe sentence is not expected than for misdemeanors. those. more than one year of imprisonment.
The district judge, with the consent of the accused, can impose a sentence by means of a "punishment order" issued without a trial, based on materials submitted by the prosecutor's office or the police. However, in this case, imprisonment cannot be imposed, and the “punishment order” is executed only if, within a week, the convicted person does not demand that it be canceled and a trial be held.
The court of sheffens sits consisting of 1 district judge and 2 sheffens, constituting a single panel. Scheffens are recruited to perform duties according to lists of candidates drawn up by the community council from among citizens living in it who have reached 30 years of age and have no restrictions (criminal record, physical or mental illness, job responsibilities and etc.). Scheffen courts have the right to consider criminal cases of crimes that are not within the exclusive competence of the state courts or the highest courts of the state, but on the condition that the punishment they impose does not exceed 3 years of imprisonment. If the case submitted to this court is of great complexity or volume, then at the request of the prosecutor, an expanded composition of the court of sheffens is formed - 2 professional judges and 2 sheffens. The same composition is necessary for the trial of a case transferred for a new trial from a higher court.
The system of general courts includes juvenile courts as independent units. They hear cases of offenses involving minors between the ages of 14 and 18, as well as young people under the age of 21 if the court considers their behavior to be “adolescent in nature”. These same courts can hear cases of violations by adults of the interests of minors or cases in which minors are required to be questioned as witnesses. The same kind of judicial institutions include in the state courts the juvenile chambers (composed of 3 professional judges and 2 sheffens) and in the district courts - the sheffens court for minors (composed of a professional judge and two sheffens) and a judge for minors. Persons with experience working with young people (usually one of them is a woman) are appointed as chiefs for juvenile affairs.
Among the specialized courts operating in Germany along with general ones, labor courts occupy an important place. They are designed to consider disputes between employers and individual employees on issues of wages, leave, dismissal, as well as conflicts between trade unions and associations of entrepreneurs, including the legality of a strike or closure of an enterprise, and other issues. This system is headed by the Federal Labor Court in Kassel, which consists of 5 senates. In them, panels of 3 professional and 2 “honorary” judges (they represent entrepreneurs and trade unions, respectively) consider cassation appeals against decisions of lower courts of this system. In each of the German states there is 1, and in North Rhine-Westphalia - 2 state courts for labor matters.
In such courts, panels are formed consisting of 1 professional judge and 2 or 4 (depending on the category of the case) “honorary” judges representing the interests of entrepreneurs and workers. The regional labor courts act as an appellate authority to which decisions of lower courts are appealed.
Labor courts - the lowest authority of this system (there were 107 of them in Germany) - consider all labor conflicts in the first instance. They form boards with the same composition as in the land courts for labor cases. In these courts, measures are taken to resolve conflicts, if possible, through compromise.
The system of courts on social issues was created to consider conflicts related to social insurance, payment of benefits to the unemployed and those who “returned to their homeland,” provision of free or preferential medical care and so on. The system of these courts is headed by the Federal Court, which, like the Federal Labor Court, is located in Kassel. It consists of 12 senates, which hear appeals against decisions of lower courts. In each of the German states there is a state court for social issues (appeal instance), and throughout the country there are 48 courts for social issues, which consider in the first instance all disputes within their competence. In the Federal Social Court and the relevant state courts, cases are heard by panels of 3 professional and 2 “honorary” judges, and in lower courts by panels of 1 professional and 2 “honorary” judges. The composition of “honorary” judges is formed on a parity basis: one representative each of the parties involved in the conflict (from insured workers or the unemployed and from entrepreneurs, from health insurance funds and from doctors serving patients at the expense of these funds, etc.).
The financial court system was created primarily to consider cases related to the payment of taxes and customs duties. By 1990 it included the Federal Financial Court in Munich and 15 financial courts, 1-2 in each state. The Federal Financial Court has 8 senates, where panels of 5 professional judges consider cassation appeals against decisions of financial courts exclusively on issues of law, and only if the dispute concerns amounts exceeding 10 thousand marks. In the financial courts, which are courts of first instance, but corresponding in rank to the highest courts of the land, cases are heard in panels of 3 professional judges and 2 “honorary” judges.
The administrative justice system in Germany was created to consider complaints from individuals and legal entities against the actions and acts of authorities government controlled, as well as disputes between local authorities, if these complaints and disputes do not fall within the competence of other courts. Filing a complaint with the administrative justice authorities, as a rule, can only follow after a protest has been lodged with the administrative body or official against whose actions the complaint is being made, and then a complaint has been filed, but not satisfied, with the administrative body that is superior to them.
This system is headed by the Federal Administrative Court, located in Berlin. In its structure there are 12 senates, mainly engaged in the consideration of cassation appeals against decisions of lower administrative courts, consisting of 5 professional judges. In the same composition, the senates of the Federal Administrative Court consider (as the first and last instance) a relatively small number of cases within the exclusive competence of this court - in disputes of an unconstitutional nature between the Länder or between the Länder and the federation, on appeals from the federal government demanding that the activities of a particular association of persons, as well as in certain types of claims against federal authorities.
Higher administrative courts are formed one at a time in all states of Germany, except for Lower Saxony and Schleswig-Holstein, where there is a common court for 2 states. Their competence includes the consideration of appeals, and under some conditions, cassation complaints against decisions and rulings of administrative courts, as well as, in exceptional cases, the most important cases at first instance. Cases in the highest administrative courts are heard by panels consisting of either 3 professional and 2 “honorary” judges, or (in some states) only 3 professionals.
Administrative courts consider at first instance, consisting of 3 professional and 2 “honorary” judges, the overwhelming majority of cases within the competence of administrative justice bodies. By decision of the administrative courts, the appealed act of a government body can be canceled or the rights of citizens or institutions violated by the actions of officials can be restored.
The named 5 highest judicial bodies, which head individual court systems (general, labor cases, etc.), are independent and independent. In the event of contradictions between their positions on any significant legal issues, the General Senate of the highest federal courts is convened, in accordance with the Basic Law (Article 95), which makes a decision that is binding on the courts of all systems, thereby ensuring the unity of judicial practice.
Some specialized courts, including those at the federal level, also function as independent judicial institutions. These are, in particular, the Federal Disciplinary Court and the disciplinary courts of the states, which hear complaints from civil servants against the actions of the authorities, as well as the Federal Patent Court, sitting in Munich.
The Federal Constitutional Court, established in 1951, occupies a special place among the highest state and judicial institutions of the Federal Republic of Germany. It is located in Karlsruhe and consists of 2 senates with 8 members of the Federal Constitutional Court each. The work of the entire court and the first Senate is headed by the Chairman of the Court, the work of the second Senate is headed by the Vice-Chairman. The Federal Constitutional Court resolves controversial issues of interpretation of the Constitution, disputes regarding the relationship with the Constitution of other federal laws and laws issued by state authorities. The powers of the Federal Constitutional Court include the possibility of repealing, on the grounds of contradiction to the Constitution, laws adopted by the German Parliament and the state authorities, any decrees of the government and other governing bodies and, finally, for the same reasons, decisions of any judicial authorities, including the highest federal courts. The Federal Constitutional Court has the right to declare the activities of various organizations and associations of citizens unconstitutional. An important function of the Federal Constitutional Court is to consider complaints from communities and individual citizens about violations of their fundamental constitutional rights by government authorities. Most of the states that make up the Federal Republic of Germany have their own constitutional courts, whose competence is limited to interpreting the provisions of the state constitutions and considering complaints about violations of the rights enshrined in them. The decisions of these courts are not subject to appeal.
Judges of federal courts are officially appointed to their positions by the President of the Federal Republic of Germany, which is preceded by a decision of the relevant minister (for appointment to the Supreme Federal Court - the Minister of Justice, for appointment to the Federal Labor Court - the Minister of Labor, etc.). However, candidates for judicial positions must first obtain the approval of a special commission, which includes the relevant German minister and the heads of the relevant state departments, as well as 11 commission members elected by the Bundestag. Elections are held in commissions, usually from several candidates.
The filling of positions in the state courts occurs in different ways. In some states, judges are appointed by the Prime Minister, in others - by the Minister of Justice of the given state. In some lands, the appointment is preceded by the election of a candidate by a special commission - an election committee consisting of deputies of the state parliament, judges and lawyers. In most states, in addition, appointment to a judicial position in any of the state courts requires the approval of ministers who are members of the Cabinet. All judges are appointed to their positions for life.
Only judges of the Federal Constitutional Court are directly elected by the Federal Parliament of Germany for a term of 12 years: half by the Bundestag and half by the Bundesrat. Judges can only be removed from office by decision of the Federal Disciplinary Court for Judges and Prosecutors or the Land Disciplinary Court. Disciplinary proceedings are initiated by the Minister of Justice of Germany or one of the states. Judges retire upon reaching 65 years of age (members of the Federal Constitutional Court are 68 years of age).
Criminal offenses are investigated primarily by the police services, which are subordinate to the federal authorities or the minister of the interior of the respective state. Preliminary investigations in a relatively small number of the most complex criminal cases are carried out by the prosecutor's office with the participation of police services. In some cases, by way of “judicial investigation,” investigative actions are carried out by investigative judges, whose duties are usually performed by district judges.
The prosecutor's office or, on a private complaint, the victim brings charges, but the trial is carried out with the mandatory participation of the prosecutor. The prosecutor's office has the authority to refuse to take a case to trial, in particular when the accused or his relatives have been seriously injured as a result of a traffic accident. In cases provided for by law, representatives of the prosecutor's office also take part in the proceedings of civil cases.
Prosecutor's offices are located at general courts of all levels. The Supreme Federal Court consists of the Federal Prosecutor General and the federal prosecutors subordinate to him (all of them act under the general leadership of the Minister of Justice of the Federal Republic of Germany). The Federal Prosecutor General is appointed by the President of the Federal Republic of Germany with the consent of the Bundesrat.
At the highest courts of the land, state courts and district courts there are corresponding prosecutors, the general direction of which, in turn, is exercised by the Minister of Justice of each of the states. The powers of district prosecutors (these are theirs) official name) are limited - they can only appear in local courts. Officials of the prosecutor's office are obliged to follow the legal instructions of superior prosecutors.
Defense of defendants in criminal cases, as well as the interests of parties in other categories of cases, is carried out by lawyers. The participation of a lawyer in the consideration of criminal and civil cases by a single judge in a district court is not necessary, except in certain cases specified by law. Lawyers must represent the interests of parties in higher courts in labor cases and can appear in social courts, financial courts and administrative courts.
To be admitted to the practice of law, a graduate of the university's law faculty must undergo an internship for 3-4 years in the courts, with prosecutors and lawyers, pass a series of exams before a commission at the highest court of the land, and only after that receive the appropriate permission from the department of justice of that land, at the court which he intends to practice. Every lawyer in the Federal Republic of Germany is obliged to open his own office at the specific highest court of the state or state court in which he is admitted to practice as a lawyer. Lawyers operating in the district of a particular high court of the state form one (sometimes, if there are more than 500 of them, two) bar associations. A special panel is formed by lawyers admitted to conduct cases in the Supreme Federal Court (by decision of the Minister of Justice of the Federal Republic of Germany after a strict selection by a special commission). All existing bar associations in Germany are united into the Federal Association. This association, in particular, takes measures to provide free or preferential legal assistance to the poor.
The supreme financial control body is the Federal Audit Office (Bundesrechnungshof). According to Part 2 of Article 114 of the Basic Law, the task of this body is to check the report of the Federal Government on the execution of the budget and on property and debts for the next financial year, as well as checking the economy and correctness of economic and budgetary management. The Federal Audit Office submits its reports annually to the Bundestag and the Bundesrat.
The President and Vice-Presidents of the Chamber are elected by the Bundestag and the Bundesrat on the nomination of the Federal Government and are officially appointed by the Federal President for a single 12-year term. Other members of the Chamber are also appointed by the Federal President on the proposal of the Chairman of the Chamber. All members of the Chamber enjoy judicial independence.
In Germany there is no single ombudsman service; its functions are performed by several bodies. Since 1957, there has been a Bundestag Commissioner for the Army, elected for a term of 5 years, whose competence includes the protection of military personnel as citizens. The role of the ombudsman at the federal level is also performed by the Petitions Committee formed by the Bundestag in accordance with Article 45c of the Constitution, which is obliged to examine requests and complaints submitted to this chamber. According to the Act on the Powers of the Petitions Committee of the German Bundestag of 1975, this body, if possible, submits a monthly report to the Bundestag on the petitions examined with its recommendations. In addition, the Committee, in accordance with the Rules of the Bundestag, must report annually on its activities.
There are institutions similar to the ombudsman at the level of federal subjects. In 1970, the institution of the Commissioner for the Protection of Privacy was created in the state of Hesse; in 1974, the position of a civil Ombudsman was established in the state of Rhinehalt-Westphalia - an attorney for citizens, reporting to the Assembly of this state.
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Germany is a parliamentary federal republic. At first glance, the complex and specific system of relationships and interaction between various authorities and management at the federal and state levels is a balanced structure that allows political decisions to be made taking into account both federal and local interests.
Bundestag
The highest legislative power belongs to the federal parliament - the Bundestag (Bundestag). Members of the Bundestag are elected by direct and secret ballot for a term of four years.
context
Half of the deputies are elected in constituencies according to a majoritarian system by direct voting, the other half are elected from party lists in each state using a proportional system. It is the second vote of the voter that forms the party-political structure of the Bundestag, and the first vote only adjusts the personal composition of each faction. Both methods of forming parliament are organically fused with each other. This, in particular, is the difference from the electoral system in Russia, where the majoritarian and proportional systems for the nomination and election of deputies are separated from each other and each of them forms its own half of the parliament.
Parties that receive at least 5 percent of the votes on party lists in the elections can be represented in the Bundestag. The President of the Bundestag is officially considered the second highest official in the state after the Federal President.
Bundesrat
Bills adopted by the Bundestag requiring amendments to the Constitution of the Federal Republic of Germany and relating to the relationship between the federation and the states, as well as affecting the interests of the federal states, must be approved by the representative office of the federal states - the Bundesrat - in order to enter into force. The Bundesrat consists of representatives appointed by the state governments from among their members. Each federal state has, depending on its population, a number of votes from three to six.
What are the functions of the head of state?
The head of state is the federal president, who is elected by a specially convened federal assembly (Bundesversammlung) for a five-year term. The same person can be elected president no more than two times in a row. The Federal Assembly is convened by the President of the Bundestag and consists of members of the Bundestag and the same number of members elected by the state parliaments. It is the federal president who formally nominates the chancellor to parliament and then swears him in. He can even dissolve parliament if the chancellor is not approved or if the head of government loses the support of the majority in the Bundestag. This is exactly the procedure that was used in Germany in 2005 to achieve early elections.
The President appoints and dismisses ministers - but only on the recommendation of the Chancellor. The President of Germany does not have real power, performing representative and ceremonial functions. The president has the power to pardon convicted criminals. He stands above the parties and their immediate political interests. Despite the representative nature of the functions of the federal president, each of political parties Germany considers it his greatest success if he is elected from its ranks.
Central executive power
The highest executive body in Germany is the Federal Government (Bundesregierung). It is headed by the Federal Chancellor (Bundeskanzler). The Chancellor is elected for a four-year term by an absolute majority of the Bundestag. In accordance with the Constitution of the Federal Republic of Germany, the Chancellor determines the main provisions of state policy and is responsible for this, and forms the Cabinet of Ministers. The Basic Law provides for the prerogative right of the Chancellor to make fundamental decisions on a number of issues of domestic and foreign policy (Richtlinienkompetenz).
Federal ministers head their respective ministries. Specialized federal departments may be created under ministries. The specificity of the executive branch in Germany is that federal ministries carry out government policy, as a rule, not independently at all levels of the government structure, but only through similar executive authorities of the German states and locally. Exceptions are the ministries of foreign affairs, defense, some divisions of the ministries of finance, transport, and internal affairs.
Lands and communes
The Federal Republic of Germany consists of 16 states: North Rhine-Westphalia (capital - Düsseldorf), Bavaria (Munich), Baden-Württemberg (Stuttgart), Lower Saxony (Hannover), Hesse (Wiesbaden), Saxony (Dresden), Rhineland-Palatinate ( Mainz), Berlin (land city), Saxony-Anhalt (Magdeburg), Thuringia (Erfurt), Brandenburg (Potsdam), Schleswig-Holstein (Kiel), Mecklenburg-Vorpommern (Schwerin), Hamburg (land city) , Saarland (Saarbrücken), Bremen (city on land rights). Each of the states that are part of the federation has its own constitution and parliament - the Landtag. The lands are not sovereign states and do not have the right to secede.
The states of Germany, being relatively independent subjects of the federation, autonomously determine the structure of their executive authorities. As a rule, these structures are headed by state prime ministers elected by parliaments, who form state governments. Within the limits of their competence, these governments are formally completely independent from the government of the Federal Republic of Germany. In matters within the jurisdiction of the federation, they are entrusted with the implementation of the relevant national laws.
Federal lands are divided into communities, they are guaranteed the right of communal self-government. However government structure Germany - not three-, but two-stage, consisting of the state and federal levels. Municipal authorities and management are subordinate to the land governments and resolve issues within the jurisdiction of the lands themselves.
Executive power in Germany is exercised Chancellor, Government and President .
Federal Government of Germany consists of the Federal Chancellor and federal ministers.
The government is formed after the election of members of the Bundestag, who in turn elect the Chancellor, who takes a direct role in forming the cabinet of ministers. Ministers are appointed by the President on the proposal of the Chancellor.
The Government is directly dependent on the Bundestag and is responsible to it: the Bundestag can pass a vote of no confidence in the Government in the person of the Chancellor, which ultimately leads to the resignation of the Chancellor and the Government.
On the other hand, the Chancellor can raise the question of confidence in the Bundestag and if he does not receive a majority of votes, the President can dissolve the Bundestag and the Government resigns early. In addition, the Bundestag may be dissolved by the President if, in the final round of elections, the Bundestag does not approve the candidate for the post of Chancellor nominated by the President.
The functions of the Government include :
Implementation of laws adopted by Parliament;
Planning the political development of the country;
Carrying out management of government affairs and other issues;
Control over the activities of government bodies in the lands;
The Bundestag has the right to delegate legislation to the Government :
The government has the right to issue general regulations;
The government has the right to issue regulations to implement laws;
The government has the right to issue regulations that have the force of laws, but only on specific issues and with the consent of the Bundestag.
The government has the right of legislative initiative .
The government has been in power for 4 years. However there is cases of early termination of his authority :
In connection with the resignation or death of the Federal Chancellor;
Since the approval of the new Bundestag;
As a result of the vote of no confidence expressed by the Bundestag in the Federal Chancellor;
If the Bundestag rejects the question of confidence raised by the Federal Chancellor and the dissolution of the Bundestag by the President.
Thus, the fate of the Government largely depends on the Chancellor, and his resignation means the resignation of all federal ministers, and thereby the entire Government.
Three-tier system of executive authorities :
-Ministries, endowed with political functions;
-Departments middle management having supervisory functions;
-Departments of the bearing unit performing purely executive functions. Ministers appointed by the President on the proposal of the Chancellor. Ministers act independently within the framework of their competence and are responsible for this to the Chancellor, who can dismiss them.
Chancellor occupies a special position in the system of executive authorities, which is why the Federal Republic of Germany is often called a “chancellor’s” republic. In fact, the Chancellor is the head of the executive branch, since he heads the Government, forms its composition, and also has the right to dismiss ministers. The President takes a mediating role between the Chancellor and the Government, since without the approval of the President the Chancellor has no right to appoint ministers. The most significant power of the President is that he nominates a candidate for the post of Chancellor to the Bundestag. And if in the final round the candidate does not receive a majority of votes, then the President has the right to dissolve the Bundestag. In reality, this right is formal and in practice there have been no such cases. The President is in stable contact with the party that won the elections. That is why he nominates a candidate for the post of head of the Government and the leader of the winning party becomes Chancellor. Voting on this candidate can take place in three rounds. If the candidate receives an absolute majority of the votes of the members of the Bundestag, the President appoints him to the post of Chancellor.
The functions of the Chancellor include :
Determination of the main directions of domestic and foreign policy;
Forms the Government;
Manages the work of the Government;
Dismisses ministers and other issues;
The president The Federal Republic of Germany is elected by the Federal Assembly through indirect elections for a period of 5 years. As a rule, the winning party nominates a candidate for the post of head of state.
A person who has reached the age of 40 and has passive voting rights can become president. Elections are held in 3 rounds: the first two rounds require an absolute majority of votes, and the third - a relative majority.
The President can exercise his functions for two consecutive terms. The President cannot be a member of Parliament, the Government, or the Landtag of the Lands; he also cannot hold another paid position.
The powers of the President include :
Signing of federal laws;
Nominates a candidacy for the post of Federal Chancellor;
Appoints ministers;
Appoints judges.
Moreover, these and many other powers require the countersignature of the Chancellor. But a countersignature is not required in 2 cases: for the act of dismissal of the Chancellor and for the dissolution of the Bundestag. There is a procedure for removing the President from office. To do this, it is necessary for the Bundestag and the Bundesrat to bring charges against and send it to the Constitutional Court.
Plan:
Fundamentals of the German constitutional system
Form of government and public authorities
Development of Germany as a federation
Political parties
Question 1 Fundamentals of the constitutional system of Germany
After the defeat of Nazi Germany in 1945, the territory of the state was occupied by the victorious Allied countries: G.B., USSR, USA and France. In 1949, on the territory of West Germany, under the control of the occupation authorities of the USA, Great Britain, and France, the Federal Republic of Germany (FRG) was formed as a result of the adoption of the Basic Law - the Constitution. According to this constitution, Germany was open to the annexation of other German states. On the territory of East Germany, under the control of the USSR, is the German Democratic Republic (GDR), where a constitution was adopted on the Soviet model. A long period of coexistence between the two German states began, which ended in 1990 with the annexation of the GDR to the Federal Republic of Germany on the basis of the provisions of the Basic Law. From that time on, the Basic Law became the constitution of a united Germany.
The Constitution of the Federal Republic of Germany is a single codified legislative act - the fundamental law. The form of government of the Federal Republic of Germany is a parliamentary republic.
According to the constitution of the Federal Republic of Germany, it is democratic state, because all state power comes from the people. The people are the bearer of power and its only owner
Germany – legal state, because the constitution establishes the priority of human and civil rights and freedoms as the basis of social and state order, democracy as form of state, separation of powers, political pluralism, rule of law.
According to the Basic Law, Germany strives to become social by the state, i.e. such a state that influences the distribution of economic benefits in the spirit of the principles of justice in order to provide every citizen with a decent existence and guarantee everyone a living wage. At the same time, the German constitution proclaims the priority of everyone’s personal responsibility for their well-being.
Germany – federal state
Distinction between universal human rights and civil rights. A German is anyone who has German citizenship, refugees or other persons of German nationality, a spouse or descendants. The term “German” is identical to the term “citizen of the Federal Republic of Germany”.
Question 2 Form of government of Germany and public authorities
Parliamentary republic characterized by the proclamation of the supremacy of parliament, to which the government bears political responsibility for its activities. The formal distinguishing feature is the presence of the position of prime minister. In a parliamentary republic, the government is formed only by parliamentary means from among the leaders of the party that has a majority in the lower house. The participation of the head of state in the formation of the government is nominal. The government remains in power as long as it has the support of a parliamentary majority. In a parliamentary republic, government is of a party nature, which is not at all mandatory for a presidential republic.
A parliamentary republic, to a greater extent than a presidential republic, is characterized by a gap between the legal and actual position of all supreme bodies of state power. The supremacy of parliament is proclaimed, but in fact it works under the strict control of the government. The government is held accountable to parliament for its activities, but in fact parliament can almost always be dissolved by a government that has lost its confidence. The president is vested with extensive powers, but they are exercised not by him, but by the government. The parliamentary form is carried out in Italy, Germany, Switzerland, Ireland, Turkey, etc.
The head of state is the federal the president(Johanes Rowe), elected by a specially convened Federal Assembly for a term of 5 years. It consists of members of the Bundestag and members elected by the popular representatives of the states on the basis of proportionality. Most presidential acts require mandatory countersignature from the Federal Chancellor or the relevant minister. But the president has enough power to actively influence the country's politics:
he can participate in government meetings,
dissolves the lower house of parliament (Bundestag) on the proposal of the Chancellor,
proposes a candidate for chancellor to the Bundestag, but the president is obliged to appoint a person elected by the Bundestag as chancellor.
may declare a state of legislative necessity on the proposal of the government and with the consent of the Bundesrat (during this period, federal laws are adopted without the participation of the Bundestag).
Performs representative functions. He represents the Federation in international legal relations. Concludes agreements with other states on behalf of the Federation.
It is also important that the president does not bear political responsibility for his actions.
Does not exercise the traditional veto power of presidents over laws passed by parliament
Thus, the role of the president in the state mechanism of Germany is nominal.
The main place in the system of central authorities in Germany is occupied by federal government consisting of the chancellor and ministers. In Germany, the government is held accountable only to the lower house. Monitors the activities of government bodies in the lands. Monitors the implementation of federal laws by the lands.
Chancellor(Gerhard Schröder - SPD, Angela Merkel) The candidacy of the chancellor is proposed by the president and elected by a majority vote of the Bundestag. The election of a particular candidate as Federal Chancellor depends on the balance of political forces in the Bundestag. The leader of the party that wins the parliamentary elections becomes the chancellor. He actually appoints and dismisses ministers, and their number is not limited by the constitution. He actually performs the functions of the head of state. According to the constitution, the Bundestag can express no confidence in the Federal Chancellor (and this is considered a lack of confidence in the entire government) only if a successor is elected by a majority vote. At the same time, as a response to a vote of no confidence, the government may appeal to the president with a request for the early dissolution of the Bundestag.
The Chancellor determines the basic course and general political line of the Federal Government and directs the activities of individual ministers
The powers of the Federal Chancellor or Federal Minister end when the new Bundestag is convened, and the functions of a minister end upon termination of the powers of the Chancellor.
Legislative power belongs to a bicameral parliament Bundestag And Bundesrat(lawmaking) with a four-year term of office, elected by a very complex system. Parliamentary powers, while at first glance significant, when actually exercised, turn out to be very limited and completely controlled by the government (there is a party mechanism for subordinating deputies to the government).
Bundestag – is formed on the basis of universal direct, free, equal and secret elections. A personalized proportional system is used in elections. Half of the deputies are elected in constituencies, one deputy from each constituency. The other half is elected according to the land party lists. Each voter has two votes. The first vote is for a candidate in the electoral district, the second is for the land list of candidates of one of the parties. Both votes can be cast independently of each other.
Competence:
development of legislation, lawmaking, adoption of federal laws
approval of the federal budget,
election of the Federal Chancellor,
parliamentary control over the activities of the Federal Government
ratification of international treaties
Bundesrat– Approves or rejects laws passed by the Bundestag. Consists of members of the state representative offices, who appoint and recall them. Each land has at least three votes, the number of votes depends on the number of inhabitants. B. represents the interests of the subjects of the Federation.
