The document provides an overview of access to justice and the court system in Germany. Some key points: - Germany's court system is divided between the federal government and states. Judges are appointed for life and are trained specifically in law. - Courts include ordinary courts that handle civil, criminal, family law cases, and specialized courts for administrative, labor, social, financial and patent law. There are multiple levels of appeal. - Access to justice is protected by the constitution and legal representation is required for some cases. Procedures aim to be efficient, with most cases resolved within months. Legal aid and insurance help provide access.

1. COMPARATIVE STUDY OFTHE STRUCTURE OF
THE COURT SYSTEM OF GERMAN LEGAL
SYSTEM AND FRENCH LEGAL SYSTEM
Sujata Kumari Muni

2. INTRODUCTION
• Access to justice is ensuring individual’s access to courts or guaranteeing
legal representation in the Court of law.
• There are many barriers to access to justice: where citizens fear to access to
the system; financially inaccessible (prohibitive court fee, lawyers fee, etc);
difficulty in accessing counsels/ lawyers; inadequate knowledge of their
rights & duties; weak justice system.
• Access to justice: formal and informal
• formal access to justice is basically adjudication of disputes by the courts which follow
the rules of civil and criminal procedure.
• informal access to justice includes alternative modes of dispute resolution such as
arbitration, conciliation, mediation, lok adalats and Nyaya panchayats, legal aid system
and so on.

3. ACCESSTO JUSTICE UNDERTHE GERMAN LEGAL SYSTEM
• German Constitution does not contain a specific provision guaranteeing a
comprehensive access to justice. such a right is widely recognized to follow
from general constitutional principles. This right is based on the rule of law
under article 20(2) and the basic rights of the parties to dispute.
• Independence of judiciary in Germany is older than its democracy.
• As per Global Competitiveness Report 2011-12 and many reports by World
Economic Forum, the corruption within judicial authorities are zero and
Germany is among the top five nations in the ‘Efficiency of Legal
Framework’ category.

4. Contd…
• German legal system is based on codes which form the basic foundation for
the work of both lawyers and judges.
• In most cases litigation is not necessary as German Lawyers and notaries
provide competent and pro-active advisory services which reduces the
burden on court.
• Among the European nations, Germany has the lowest number of lawsuits.
• As per Rule of Law Index 2011 published byWorld Justice Project, Germany
is second in the category ‘Access to Justice’
• The court summons ordinary witnesses and expert witnesses during trial of
the cases.This approach significantly accelerate court proceedings.

5. Contd…
• On the first hearing itself, the judge discusses the matter with the parties and
lawyers providing guidance to the issues. This helps parties in adapting the legal
strategies saving both time and money.
• The cases are heard on both factual and legal basis. The facts and legal basis on
which the courts shall pronounce their judgement are being made clear in advance.
Hence there is no unpleasant surprise decisions.
• German Courts are employed with judges who are expert with the subject area for
ensuring fair justice.
• Timely justice delivery system: German courts work very quickly and efficiently
with time bound manner.
• Matters having a value dispute not exceeding 5000 Euros are disposed of within 3 months.
• 1/3rd of cases over 5000 Euros concluded within 3 months and further 25% - 6M

6. Contd…
• The average duration of proceedings
• in the local courts is 4.5 months;
• district courts - 8.1 months;
• appellate proceedings in the district courts - 5.5 months,
• in the courts of appeal - 7.6 months.
There is approximately average time span of 12 to 18 months for a second appeal in the Federal
Supreme Civil Court. The performance of the labour courts corresponds to the situation of the
civil courts. (Source: Based on the statistics available at the website of German Federal Agency
of Justice)
• The documentary evidence carries more weight than evidence given by witnesses.
• The enforcement of the judgment can not be delayed on the ground of appeal before the
Appellate Court.

7. Contd…
• Mediation and conciliation: form an integral part of German civil
proceedings. At any stage of the proceedings, the judges can persuade the
litigants to resolve their disputes by out-of-court settlements.
• When no agreement is reached through mediation, the parties are open to
resort to arbitration or approach the formal courts
• The court and lawyer’s fees are prescribed by law and are always based on
the value of the matter in dispute.
• In Germany one can easily find highly qualified legal experts having
specialised knowledge in different areas who are proficient in many
languages.

8. THE COURT STRUCTURE UNDERTHE GERMAN LEGAL SYSTEM
• The judges in Germany base their judgments on legal codes.They don’t rely on precedents.
• Judicial system in Germany consist of 3 different types of courts.
• Ordinary courts,
• specialised courts,
• constitutional courts.
• The Federal Constitutional Court is Germany’s highest and most important judicial body.
• In Germany everybody has got the right to appeal to the Federal Constitutional Court in
order to check whether the action of a public authority is in accord with the German
constitution.
• The Federal Constitutional Court is the “last level of jurisdiction” and one will have to run
through all other possible instances before “going to Karlsruhe” which is the city where the
Court is located.This Court only deals with constitutional questions.

10. • Ordinary courts are competent for
• criminal matters,
• civil matters,
• matrimonial and family proceedings and
• non-contentious proceedings such as the maintaining of the company register.
• Ordinary courts are organized in four tiers, each of increasing importance:
• the local courts ,
• the regional courts ,
• the higher regional courts and
• the Federal Court of Justice
In criminal cases, each of the first three courts may have jurisdiction, depending on the nature and seriousness
of the crime. In civil proceedings, either the local or the regional court can be court of first resort.
• Appeals may mostly be lodged with up to two higher courts.
• The Federal Court of Justice in Karlsruhe represents the final court of appeals for all cases
originating in the regional and appellate courts and holds no original jurisdiction.

11. • Specialized courts deal with five distinct subject areas:
• administrative,
• labor,
• social,
• financial, and
• patent law.
• Administrative courts consist of
• local administrative courts,
• higher administrative courts, and
• the Federal Administrative Court.
• The jurisdiction of the administrative courts covers legal protection against all
administrative acts and other administrative proceedings. The administrative
courts handle all trials under public administrative law, except those that fall under
the jurisdiction of the social, finance or constitutional courts.

12. • Labour courts also function on three levels and address disputes under
private law arising from employment contracts and between management
and labour force as well as matters covered by the Works Constitution Act.
• Social courts, organized at three levels, rule on disputes from all areas of
social security.
• Financial courts have only got two levels and are dealing with taxation and
related matters.
• A single Federal Patents Court in Munich adjudicates disputes relating to
industrial property rights.

13. Who can give legal advice?
• Attorneys at law/Barristers :
• In civil law cases before the local district courts one is not obliged to be represented by an attorney at law. However, one has
to be represented by an attorney at law before the regional courts, the higher regional courts and the Federal Court of
Justice.
• The court also helps in appointing the attorney to represent in the court for the people having low economic means to
defend their cases in serious criminal offences. In smaller criminal offences one does not necessarily have to be represented
by an attorney at law.
• All attorneys at law have to be members of the Bar Council.The fees attorneys at law can charge are regulated by law .
However, fees can also be negotiated between the attorney at law and his client on an individual basis.
• Notaries:
The legal status of notaries in Germany is that of an “independent holder of a public office”. They are appointed in order to
certify legal transactions and perform other duties in the area of precautionary legal care. All notaries are members of the
chamber of notaries, where their business office is located.
• Registrars :
Registrars are independent providers of legal services.Their function and position is laid down in the German RegistrarsAct . If
one hasn’t got the means to pay an attorney at law the registrar can give first legal advice and assistance.
• Tax counsellors :
They can give advice in tax and accounting measures.

14. Appellate Court System
There are usually two types of appeal:
• “Berufung” (appeal on questions of fact or law) and
• “Revision” (appeal on questions of law).
Legal insurance:
There is a system of legal insurance. The insurance company will cover the costs if the
insured is involved in a legal proceeding. There are different types of legal insurance
which cover different types of legal disputes.
Legal Aid:
Before granting legal aid, the competent court will evaluate the chances of success in
the claim. For that purpose, a questionnaire is required to be filled by the litigant
which can be obtained from an attorney at law or directly at the competent court.

15. Appointment, tenure and retirement of judges
• The appointment of judges in Germany are made by the executives with some involvement of judiciary
through participation in judicial electoral committees and advisory boards.
• Judges must be well trained. However, judges are not chosen from the field of practicing lawyers.
• They follow a distinct career path.
• The academic study of law is based on two “State Examinations”. To become a lawyer, one must take the
First State Examination after 8 semesters of legal study.
• Successful candidates are given traineeships funded by the state. Students can then take the Second Stage
examination and on the basis of rankings from the exams, students will apply for posts in a particular Land.
• According to research findings only 10% of trainees become judges. Judges who are recruited will spend
three years on probation and the German Judiciary Act enables probationary judges to be dismissed
relatively easily within the first two years.
• There are other routes into the judiciary. In particular it is possible for prosecutors, civil servants and
professors to apply to become judges. For instance, civil servants may apply to join the social law courts
where they might have relevant expertise.

16. Recruitment and appointments in ordinary courts
• A judge will usually begin his career at a court of first instance in the employment
of one of the Lander, therefore the Lander administrations has responsibility for
organizing recruitment. Within the Lander the Ministry of Justice usually organises
this process, however in some of the Lander appointments for the social and labour
courts come within the scope of the Ministry of Labour and Social Affairs.
• Although there are regional variations, the process generally starts with an
application by the candidate. In most of the Lander, applicants will appear before a
recruitment commission and present their application. These commissions vote on
the application; this vote is then considered by the appointing authority who may
be the Minister of Justice or the president of a court. Where these commissions do
not exist it is the appointing authority who will make the decision usually on the
basis of the written documentation and an interview. The exact procedure followed
differs between the Lander and indeed from court to court. Unsuccessful
candidates can in theory apply for a judicial review of the decision.

17. Appointment of Federal Court Judges
• The federal authorities elect the judges to the highest federal courts i.e. the
Federal electoral committee and relevant Minister are jointly responsible for
making the decision.
• The Federal electoral committee comprises the 16 Lander Ministers of Justice and
16 members of the Federal Parliament. The Federal Minister concerned acts as a
nonvoting chair of the sessions.
• There is no formal recruitment process as exists at the beginning of a judicial
career; rather each individual member of the Committee has the right to present
candidates.
• The judiciary can participate through a body representing judges known as the
presidential council. This council gives an advisory opinion on the personality and
aptitude of the candidates. Each court system has a Presidential Council composed
of the president of the court and other judges, at least half of whom are elected.

18. Appointment of Constitutional Court Judges
• The Federal Constitutional Court has 16 judges which sit in two divisions or
senates. Half of these judges are elected by upper chamber of Parliament and half
by the lower chamber. Constitutional Court judges are judges or professors
qualified for judicial office.
• The Federal Minister of Justice draws up two lists of eligible candidates, one
consisting of judges from the highest federal courts and the second consisting of
persons suggested by the parties in the Federal Parliament or the various Lander
governments.
• Constitutional Court judges are appointed for a fixed term of 12 years so there is no
career; judges and professors return to their old posts.
• The methods used to appoint Constitutional Court judges differ between the two
chambers of Parliament.
• There is no minimum age requirement for promotion to higher judicial office.

19. Removal of Judges
• Article 30 of the German Judiciary Act specifies that a judge for life can only be removed from
office without his own written consent in a number of specified circumstances including:
• in judicial impeachment proceedings;
• in formal disciplinary proceedings;
• in the interests of the administration of justice and
• on changes being made in the organisation of the courts.
• The discharge from office on the first three grounds can only be ordered by a judicial decision.
These decisions are made by the Judicial Service Court.
• The Judicial Service Court may suspend a judge from office pending dismissal proceedings by an
order known as an interlocutory order. However dismissal of a judge is rare.
• In relation to federal judges, there is a specific chamber at the Federal Court of Justice that
makes final decisions on disciplinary proceedings, transfer of judges, dismissals and retirements
due to ill health.
• There is a special provision in the Constitution which provides for removal of federal judges: if a
federal judge breaches the constitutional order then the Bundestag may by a 2/3 majority
request the Federal Constitutional Court to transfer, retire or dismiss the judge (Article 98).

20. Diversity in Judiciary:
• The numbers of women who have become judges has significantly
increased in recent years. In 1970 6% of the judiciary were women. In 2002,
just over 30% of the judiciary were women. However research has
highlighted that there are difficulties for women in gaining promotion as
candidates would have to seek trial periods of secondment which can be far
from home and consequently many women do not consider promotion.
• Ethnic minority judges are a rarity in the judiciary in Germany as there is a
minimum condition for those who hold judicial office to be a German
national.

21. Similarities between German Legal System and French Legal System
• Both German and French legal system use “Civil Law”, that is codified and
originates from Roman Law.
• Both Germany and France use an inquisitorial system, where the judges are
actively involved in investigating the facts of the case.

22. Germany
Courts are divided between the Federal
Government (the Reich) and the states.
France
Courts are maintained by the supreme political
power
Judges are appointed by executives and they are
appointed for life.
The judges are trained in the law and, in
principle, appointed for life. Career judges are
considered as civil servants. Judicial
appointments in France are determined by the
country’s High Council of the Judiciary.
In civil cases the court is composed exclusively of
professional judges. But in commercial and labor
cases, in most criminal and in certain
administrative matters, the bench is composed
of professional judges and of laymen, the latter
usually being in the majority.This large-scale
participation of laymen in the administration of
justice distinguishes the German system from
the French.
In France, administrative law cases cannot be
brought before the ordinary courts. However,
the German has different sets of administrative
courts in each of the states, each one dealing
with a separate topic. All the various supreme
courts are of equal rank.There exists no
"Supreme Court" for Germany which exercises
final control over all courts of the country.
Differences between German Legal System and French Legal System

23. CASE LAW ANALYSIS
German Legal System
• As Germany belongs to the civil law tradition, case law is not considered a formal
source of law like the common law jurisdictions.
• German judges are not bound by precedent but, in pursuit of consistency, they are
likely to consider previous decisions of the higher court(s).
• German judges only interpret & apply the existing law to the facts before them.
• Though there are few records of German case laws in public domain, however one
of the most important case laws cited herein is as follows:This is a judgment
passed in 1993 by the German Federal Constitutional Court - Concerning
jurisdiction of the Court’s two senates - Bundesverfassungsgericht (Federal
Constitutional Court), Plenum, Decision of 15 November 1993.This was decided
on the basis of Article 14 (4) of the Law on the Federal Constitutional Court
(BVerfGG) which was published on the Federal Law Gazette in 1993.

24. The judgment was as follows:
• The Second Panel of the Federal Constitutional Court in addition to its present area of coverage, shall also be competent
for:
• review of specific laws (Articles 13 (6) and (11) BVerfGG) and constitutional complaints involving
• asylum law;
• the Aliens Act and international mutual assistance in criminal matters;
• the civil service and the employment status of employees of religious communities whose law is modelled on that of the civil service, including
disciplinary law in each case;
• military and civil alternative service, including disciplinary law in this field;
• criminal law and the law of criminal procedure, except for proceedings in which questions of the interpretation and application of Article 5 or 8 of the
Basic Law predominate;
• the execution of remand in custody and imprisonment and of custodial measures other than punishment for dealing with serious offences, as well as
the ordering and execution of other forms of deprivation of liberty;
• monetary fine proceedings;
• income tax law, including church tax law;
•
• It shall also be responsible for review of specific law and constitutional complaints in which
• the interpretation and application of international law or primary European law is of considerable significance;
• questions other than those involving the interpretation and application of Articles 1-17, 19, 101 and 103 of the Basic Law (GG) (also in connection with the rule
of law) predominate;
• as well as for complaints involving the civil jurisdiction (except for family law and law of succession) of complainants
whose surnames begin with the letters L to Z, and in which questions of the violation of the rights mentioned in Articles
101 (1) or 103 (1) GG predominate.

25. Conclusion:
• The comparative analysis of different Judicial systems equips us with the
understanding of a good perspective of the judicial systems prevalent in
other jurisdictions. Hence nature of the judicial system and their
distinguishing features including the mode of their justice delivery system,
nature of the trial prevalent in Germany and France, throws informative
light.
• The problem is not to fuse or assimilate these two great legal systems, nor is
there any purpose to a relative evaluation in terms of quality and merit.
Each serves the society in which it developed and in which it functions. In
every country, the legal system is a living organism which breathes, grows
and adjusts to serve the needs of society.
• Even we can Indianize some of the best features of both the system to fill
some vacuum spaces in our legal system, of course, after thoroughly
examining the relative merits and demerits in their features.