Introduction
Resources
- Slides, Tutorial Slides
- Theory: Sources of Law (Slides), Areas of Law (Slides), Legal Families (Slides)
- Courts: Types of Courts, Forum and Costs, Burden of Proof (Slides)
What is Law?
What do Lawyers do?
They apply the law, duh. For example, considering theft of a movable thing, they argue whether the thing is movable, whether the act constitutes theft, and whether the perpetrator can be held liable. Lawyers also consider the legal consequences of actions, such as whether a contract is void or enforceable.
Law Theory
In continental Europe, the source of law is statutory law, which is created by the legislature (codification). In contrast, in common law systems, the source of law is case law, which is created by judicial decisions (doctrine of precedent). In addition to statutory and case law, there are also other sources of law, such as customary law and international law.
Private and Public Law
Private law governs (horizontal) relationships between individuals and entities, such as contracts, torts, and property law. Public law governs (vertical) relationships between individuals and the state, such as constitutional law, administrative law, and criminal law. For example, a contract dispute between two companies would fall under private law, while a criminal case involving theft would fall under public law.
Private law is based on the principle of freedom of contract, allowing parties to freely negotiate and agree on the terms of their contracts. Public law, on the other hand, is bound by rules, which require that all actions taken by the state must be authorized by law, based on fundamental rights and equal treatment.
Law and Contracts
Contracts are not law because they are only binding for two parties (usually), while law is binding for everyone. However, contracts are based on legal principles and must comply with the law to be enforceable. For example, a contract that involves illegal activities is void and cannot be enforced.
Courts of Law
Court decisions enable the use of bailiffs, which are officers of the court responsible for enforcing court orders, such as collecting debts or seizing property. Courts also have the authority to impose fines and other penalties on individuals or entities that violate the law. For example, if a company fails to pay a debt, a court may order the bailiff to seize the company’s assets to satisfy the debt.
German Court Hierarchy
- Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe; for constitutional matters; lower courts have to follow its decisions
- Federal Court of Justice (Bundesgerichtshof) in Karlsruhe
- Higher Regional Courts (Oberlandesgerichte), 24 in Germany
- District Courts (Landgerichte), 120 in Germany; for matters above 10k€
- Magistrate Courts (Amtsgerichte), 650 in Germany; these also keep registers (land etc)
Except for magistrate courts, lawyers are mandatory.
Forum and Costs
Forum is the place where a case is heard. Usually, the case will be held in the court of the defendant, but there are exceptions, such as when the contract specifies a different forum or when the case involves inheritance or a vehicle accident.
While outside of the court, lawyers charge by the hour, in court, they charge according to the value of the case. The court also requires a deposit to cover court costs. The lawyer and court fees are covered by the losing party, or proportionally shared if both parties lose.
Burden of Proof
The burden of proof determines who has to prove their argument in court, or conversely, who could profit from the court not being able to prove the other party’s argument. In general, the burden lies on the litigant - the person suing needs to prove. Without proof, even correctly applying the law will not win a case. In some cases, the burden of proof is reversed when it’s practically impossible for one party to prove something.
Five types of soutes can be used for proof:
- Witnesses: However, they have to credible and when not paying attention intentionally might be unreliable. In court, witnesses must tell the truth.
- Documents: While forgeable, paper is an excellent proof.
- Experts: Especially in building or vehicle accidents, experts can provide valuable insights. However, they can be biased and are not always reliable.
- Inspection: The court can inspect the scene of an accident or the condition of a product to gather evidence. However, this can be time-consuming and may not always provide conclusive evidence.
- Interrogation: The court can question the parties involved to gather information. However, this can be biased and may not always provide reliable evidence.