Provide the comparative analysis of judicial system of Germany and France

Provide the comparative analysis of judicial system of Germany and France.

Word count: 1636

Introduction

At this time of the history we cannot call one`s governing style better than others. It would be fair to say the same for judicial system. Because the Romanian civil law gave birth to other pieces, so that others could modern it. This paper will be exploring the history of both Germany and France`s judicial system, the differences, the advantages of ones over another`s and finally tries to conclude it with some proper ending.

Body

France

To begin with, as France exercising separation of powers like any other countries, judicial power of the constitutional organization is independent of the other two. In the system there`s something called esprit de corps which means feeling pride and mutual loyalty for the members of a group. In addition, judges undergo different training rather than lawyers and they have membership in a judicial civil service. Coming for the court structure, in France it is divided in to public law courts and private law courts and criminal law courts. Namely, public law courts deal with most disputes involving administrative parties, while the criminal courts take care of the criminal complaints and prosecutions relating to criminal offences. Last one, commercial, employment and civil matters are dealt by the private law companies. Again mentioning the separation of powers, regular courts are not given the control over the executive or administrative agencies. This was left for administrative tribunals; shortly regular courts do not have any right to pass on the constitutionality of acts of parliament. Furthermore, because of the comprehensive codifications in criminal and civil law, the scope of the function of courts is restricted than in the common law system where judges are actively making the law. On the surface it looks unusual that administrative tribunals are not in the part of the judicial power because in large scale they perform the same kind of function. For this reason, they are in connection with the Judicial Organization of France.

The judicial authority is considered to be the guardian of individual liberty under the Constitution. The independence of the judicial authority is guaranteed by the President. A disciplinary council for judges is accepted to be the High Council of the Judiciary (le Conseil Superieur de la Magistrature); it further gives assist to the President of the Republic by presenting the nominations for judges of the Court of Cassations and First Presidents of the Courts of Appeal. It also has power on giving opinion on nominations by the Minister of Justice of all other judges. The High Court of Justice is specialized in the purpose of trying criminal charges against members of the Government and also to judge the only act for which the President of the Republic is accountable, namely, high treason.

The judicial system of France had relatively few changes with long continuous traditions and specifically changes were of a minor nature. Although the courts of modern countries bear high similarity to each other, in this area it is more than certain attributes and characteristic which bear upon the nature of the legal system organization in which the courts function. To get the true meaning behind that relationship in France, it is necessary to learn the organization and nature of the magistrature; as in this connection the qualifications and the attitudes of the individuals who, as a group, operate the judicial organization is a must to explored. The upcoming words include a description of the administrative tribunals, although regular courts constitute the heart of the system.

Although we refer magistrate as a judge, in English, but in France it has three meanings and in this case only one meaning includes judges in it, because there are other magistrates that serve for the Public Ministry and Ministry of Justice. It should be distinguished when there are obvious similarities between these three. Magistrature assise is referred to those who sit as judges and diced cases litigated to them. The magistrates which serve as adjuncts of the court to assist in the judicial process are the Public Ministry members and referred as magistrature debout or parquet.

Germany

The judicial system of Germany gives one a primary impression of this dual classifications of horizontal hierarchy also as vertical hierarchy. Before examining each court separately, it is better to ascertain the general picture of the distribution of those courts. There are three principal spheres they are ordinary jurisdiction, administrative jurisdiction and constitutional jurisdiction. The labor courts and the regular courts are the parts of the ordinary jurisdiction. The administrative jurisdiction consists of the general administrative courts and the special administrative courts for tax and finance matters and the special administrative courts for social matters like, social insurance and social security. There is a separate hierarchy in the usual pattern of courts of first instance, highest court and intermediate appellate court, in each of this five court systems.

For general jurisdiction ordinary courts are established. In addition, matters that does not fall for special administrative courts` jurisdiction presumably go to these ordinary courts. There are approximately twenty thousand judges in all our courts and about fifteen thousand of them are ordinary court judges.¹

In the field of ordinary civil jurisdiction concerned with litigation between private individuals, one branch became so important that a separate set of courts was established for these particular cases. The so-called labor law questions (Arbeitssachen) include litigation involving employment contracts, disputes between management and labor as to the existence and interpretation of collective bargaining agreements, claims against a fellow employee with regard to torts committed in the course of common employment, and so forth.² But at this point it may sound strange but labor courts have started very long time ago; their origin goes to 1807 while Napoleon`s kingdom.³ In Germany it remained not steady because of the territorial problems until the Labor Court Act 1926, only after that it saw some steady increase in importance.

The administrative courts are independent courts, separated from the administrative authorities and subject only to the law; their judges have the same position as the judges in the ordinary courts. It is not surprising that specialized courts were started, almost 100 years ago, in order to deal more satisfactorily and efficiently with technical matters like taxation and administration and social insurance. Similarly, among the administrative courts, a further specialization has taken place, so that there has developed a separate system and hierarchy of courts for tax matters, and still another for social insurance matters, leaving all other matters to the general administrative courts.

It is believed that training, selection and stinting students does a lot of job for them to improve their work, the way they think. But in common law systems judges come from successful practitioners, because there is no particular training for them. Thus, civil law countries mostly lean on training rather than practicing. When it comes to deciding cases, the French court does not see a specific problem in its resemblance to or difference from a prior case, but rather in its relation to the pattern of general principles of the written law in reference to which a decision will be reached.

As in the case of France, the description of the situation in Germany must begin with the assertion that judicial decisions are not considered as a regular formal source of law, and that with the exception of some decisions of the Federal Constitutional Court, they are not binding as precedents. However, it would be not only incomplete but also incorrect to stop at that point, because the decided cases are generally consulted and often followed. Even without the status of binding precedents, judicial decisions are extensively cited by both practitioners and judges, and they are often given what might be called de facto consideration and application. The reasons for this treatment can be seen in the organization and procedure of the judicial system. As in France, the German courts conjointly acknowledge the belief of
urisprudence constante, or a series of consistent selections on a similar
point, and this can be referred to as standige Rechtsprechung. However, this may be
carried an additional step in Germany than in France, as a result of custom could be a recognized official supply of law, and if a call of a federal high
court is repeatedly followed thus on bethought of a general observe of
the courts, the rule of the case becomes binding as "customary law"
(called Gerichtsgebrauch)

Conclusion

The place and the performance of the legislation and judicial selections within the common law, and within the civil law are not all contained inside onerous and fast attributes that the square measure reciprocally exclusive. Every system has sure strong characteristics of a general and comprehensive nature that has come to be particularly known with it. However, this does not stop a country classified in one system from having or incorporating some measure of the normal options of the opposite. In such cases, the measure is sometimes comparatively tiny, and in their basic nature the 2 systems remain what they need been and what they're. The matter isn't to fuse or assimilate these 2 nice legal systems, neither is there any purpose to a relative analysis concerning the quality and the advantage. Every serves the society within which it developed and within which it functions. In every country, the system could be a living organism that breathes and grows and adjusts to serve the requirements of society.

Bibliography

“‘Judicial Diversity in France, the Unspoken and the Unspeakable,’” (January 8, 2018) accessed March 8, 2021

“Correction: The Hog Cycle of Law Professors: An Econometric Time Series Analysis of the Entry-Level Job Market in Legal Academia” (2016) 11 PLOS ONE

Dainow J, “Issue 1 Article 1 Fall 1961 Comparisons of the Civil Law and Common Law Systems” 37 Indiana Law Journal Indiana Law Journal accessed March 7, 2021

“France - Law & Practice - Litigation 2014 - Chambers and Partners” (web.archive.orgOctober 26, 2016) accessed March 8, 2021

1^ “Correction: The Hog Cycle of Law Professors: An Econometric Time Series Analysis of the Entry-Level Job Market in Legal Academia” (2016) 11 PLOS ONE.

2^ Joseph Dainow, “Issue 1 Article 1 Fall 1961 Comparisons of the Civil Law and Common Law Systems” 37 Indiana Law Journal Indiana Law Journal accessed March 7, 2021.

3^ “France - Law & Practice - Litigation 2014 - Chambers and Partners” (web.archive.orgOctober 26, 2016) accessed March 8, 2021.