Commentaries on the similarities and differences between the German and the French court systems

A court is an institution that the government sets up to settle disputes through a legal process. People come to court to resolve their disagreements. Did Bill Jones run a red light before his car ran into John Smith's, or was the light green, as he says it was? Did Frank Williams rob the bank? Courts decide what really happened and what should be done about it. They decide whether a person committed a crime and what the punishment should be. They also provide a peaceful way to decide private disputes that people can't resolve themselves.

The "Adversary Process"

Courts use the adversary process to help them reach a decision. Through this process, each side presents its most persuasive arguments to the "fact finder" (either a judge or a jury) and emphasizes the facts that support its case. Each side also draws attention to any flaws in its opponent's arguments. The fact finder then decides the case. American judicial tradition holds that the truth will be reached most effectively through this adversary process.

Impact of Court Decisions

The work of the courts may affect many people besides those directly involved in the lawsuit. For example, the Supreme Court's decision in the 1954 case Brown v. Board of Education, that it was unconstitutional to require white children and black children to attend separate schools, meant not only that plaintiff Linda Brown could enroll in a formerly all-white school, but also that other African-American children could, too. (Of course, this didn't happen overnight; court orders implementing the decision were not always obeyed.) Court decisions not only tell those involved in the case what their rights are, but also tell other people how the courts would probably decide similar cases. When the decision is made by a court with a broad geographic reach, such as the U.S. Supreme Court or the supreme court of a state, it can provide guidance to people who are considering legal action and may help them resolve their dispute without going to court

Whether the country is classified within the civil law group, the common law group, the Scandinavian group, or the socialist group, the pattern of govern- ment seeks to effectuate their fundamental political philosophy. In the civil law group of the so-called Romanist legal systems, two of the most significant are the French and German

Similarities between the German and the French court systems.

Firstly, there are almost the three usual levels of regular courts: the courts of first instance, the intermediate appellate courts, and the highest court.

Secondly, French legal systems and German legal systems are belong to civil law. The popular legal form of French and German applied is statute law, not be precedent. Legislation is the activity of parliament. The court applies regulations to judge. Precedent seems to repair defects of statute law. Therefore, the jurisdiction of making law is not belong to the court.

Thirdly, there is a discernment between the judicial court system and the administrative court system.

Fourthly, both the judicial court system of France and Germany have the provisions of the highest level of jurisdiction: consider the proceedings and applying the law. If there is a mistake, the judgment will be canceled and the case will be transferred to the appellate court which has the same level for retrial.

Fifthly, judicial protection agencies in both countries have procedure about abstract supervison and specific supervision.

Sixthly, the highest administrative court in both countries only have the jurisdiction to consider the judgement of lower courts. However, in some particular situations, with cases affecting public order, it can recieve these cases and judge.

Seventhly, judges are usually accredited to courts and they work all one’s life. Besides, members of judicial protection agency work by term, concurrently, they are not reappoint as this position.

Differences between the German and the French court systems.

The division following to areas.

As in France, all courts are maintained by the supreme political power, which, however, in Germany was divided between the Federal Government (the Reich) and the states, as in the United States. Prior to 1934, the majority of the courts were state courts, their organization being regulated by federal statute. Only the supreme court (the Reichsgericht) in the hierarchy of the ordinary law courts and some administrative courts were maintained by the Reich. When the National-Socialist government abolished the sovereignty of the states by the Statute on the Reconstruction of the Reich, of January 30, 1934 all courts became immediate organs of the Reich[1].

Structure.

The courts in France are also divided into two parts - the judicial courts (those dealing with criminal and civil laws), and the administrative courts[2]. While the courts in Germany are also divided into 5 parts. There are judicial courts, administration courts, social courts, labour courts and financial courts[3].

In Germany, the court structure is divided between ordinary jurisdiction and specialized courts. The ordinary jurisdiction consists of the civil and criminal jurisdiction. The specialized courts are the administrative courts, the finance courts, the labor courts and the social courts. In addition, there is the constitutional jurisdiction, which consists of the Federal Constitutional Court and the constitutional courts of the Länder.

However, in France, there is only the system of specialized courts within main court system. France does not contruct specialised court system as well as German.

Unlike Germany, France does not have a specific court for tax matters[4].

Division following to types of affair.

In France, the civil courts settle private disputes between individuals such as divorce, inheritance, property... but do not impose penalties. The criminal courts judge individuals who have committed offences.

In Germany, there is no the division between civil court and criminal court. Civil affairs and criminal affairs are under the jurisdiction of judicial courts.

Judicial courts.

In France, judicial courts are organized in three tiers, each of increasing importance: trial courts (Tribunal d’Instance), high courts (Tribunal de Grande Instance)[5] and appeal courts (Cour d Appel).

In Germany, judicial courts are organized in four tiers, each of increasing importance: the local courts (“Amtsgerichte”), the regional courts (“Landgerichte”), the higher regional courts (“Oberlandesgerichte”) and the Federal Court of Justice (“Bundesgerichtshof”).

Administrative courts.

In Germany, the system of the general administrative courts includes two levels within the state competence, and the top level is federal[6].

As in France, administrative law cases cannot be brought before the ordinary courts. Unlike the French, however, the German administrative courts are not organized as a single hierarchy with a supreme administrative court (the French Conseil d'Etat) at the top. There are not only different sets of administative courts in each of the former states, but there is also a bewildering multitude of hierarchies of administrative courts of the Reich, each one dealing with a separate topic. They are under the control of the Council of State, which examines cases on appeal[7].

Administrative courts of France is both the judicial agency and the executive body. However, administrative courts of Germany is only the judicial agency.

Judicial protection agency.

There is a third unique aspect of the judiciary in France - the Constitutional Council (Conseil constitutionnel). This branch oversees review of statutes before they are enacted as well as overseeing national elections and answering questions from citizens regarding the constitutionality of laws. The Conseil constitutionnel is made up of nine members. Three are appointed by the president, three by the head of the National Assembly, and three by the head of the Senate.

In Germany, judicial protection agency is administrative court with function about ensuring the constitutionality of laws.

Legal personnel.

Not all members of the bench are professional judges. 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 usu- ally being in the majority. This large-scale participation of laymen in the administration of justice distinguishes the German system from the French (where laymen-participation plays a rather modest role).

With Germany, in the commercial courts, the lay members are business men of high standing and reputation. They do not change from day to day or from case to case as the aldermen in the criminal courts do but are appointed by the government for a period of three years with the possibility of reappoint- ment, which usually takes place. Unlike the French, the German tribunals dealing with commercial transactions are not composed of business men exclusively, but of two business men and a professional presiding judge.