The comparison of civil law and common law in German legal system

The modern code of Germany attributes its codified structure to the codification process of three German states –Austria, Bavaria and Prussia. The civil procedure code of Germany is the result of the creation of commission by statute in 1873 to codify the German civil law which is known as “ Burgerliches Gasetzbuch” or BGB . Ultimately the code came into effect in 1900. (6) As said above, in civil law the court interrogate the witness in the court room. In German legal system also follows the same proceedings.

Here the court enquires the name, residence, occupation and job of the witnesses. Then the witness will be given the chance to brief his case and the same will be formulated by the court to ask the questions to test, and clarify the facts raised by the witness. The counsel of both parties has the opportunity to ask the questions. But in Germany, in ordinary cases there is seldom questions will be asked as in Common law. Regarding common law there is no cross examination and hence there is no transcript of testimony of the witness.

The Judge himself dictate the testimony of the witness while he is briefing the case . At the end of the proceedings it is the turn of the clerk to read the full dictated version of the testimony and the both counsel can rebut the critical important points and can be set down there itself. Joseph Danow, The civil law and the common law: Some points of comparison, 15 Am J. Comparative law, 1967 7. Benjamin Kaplan, Arthur T.

Von Mehran and Rudolf Schaefer, Phases of German Civil Procedure, 1960 6 Another notable comparison can be made in the context of the civil law and common law is the case of expert witnesses. In German legal system mainly the expert witness will be selected and applied by the court after consulting with the parties the court itself conduct the examination then the court realize the fees from defeated parties in later stages. But in common law parties themselves find out the experts and he will be examined as witness in the later stages.

But here the difficulty arises regarding the non experience of the witnesses at the time of examination, tendency to conceal doubts and difficulty in taking client’s side, tendency to overstate that strong and week aspects of the case etc. (8) In civil law the prospective witnesses will not be prepared for the councel’s questions during the examination in chief and cross examination and the same is considered mandatory in common law. (9)In this regard The civil lawyers always oblige the rule that they shall never interfere with the witnesses out of court .

But they can contact them under the special circumstances. (10) The prominent feature of both civil laws of German legal system and the American . Michael Bolahander, The German Advantage Revisited: An inside view of German civil procedure code in the nineties, 1998 9. John Langbein, The German Advantage on Civil procedure code, 1985 10. The code of Professional Ethics,(Germany) 1973 ,sec.

6,Questiong and advising of witnesses 7 The prominent feature of both civil laws of German legal system and the American common law system regarding the adversial and non adversial nature of examination is the civil law adhered to the adversial or inquisitorial approach while taking the examination in chief and cross examination of the witness by the judge which is completely against the adversial approach adopted in the common law system. In German legal system the judge usually gather and control the facts.

”Judiciary dominated fact gathering” is one of the main feature of the german legal system and it is termed as one of the “german advantage” compared to the other legal systems of the counterparts. Here the parties and lawyers investigate the matter and fact of the case, opt the necessary materials and proofs for supporting their cases, and produce before the court. This is the method of gathering the factual materials and that why the German civil law system is termed as adversial/inquisitorial.

(25 civil just) (11)This approach of the civil law always invite a number of criticism as the legal experts say the adversial nature of examination is simply a misleading process . This view is tied up in the case D vs National society for the prevention of the cruelty to Children (12)as it is stated in the case the justice proceeds from the adversary not from non adversial process. In contrast to these arguments there are some facts lies.

Both American and civil .D vs National society for the prevention of the cruelty to Children,1978 A. C 171,231 8 Law of German share some similarities in court proceedings. The power to establish the facts on which the judicial decision lies is referred to decision makers, whether it is trial judge or jury. Moreover the identification of facts by the lawyers which they think, support their claim and defense, nomination of the witnesses ,formulating suitable factual allegation and other facts which the lawyer has the knowledge etc, are similar in both American and German context.

Another feature of the German civil law system the parties have no authority to call as many witnesses as they wish. It is not mandatory that all the witnesses who were called by the parties will be heard before the defendant’s witnesses. The parties are able only to nominate the witnesses to support their allegations. Thereafter the court will formulate the witness’s name in evidentiary order so the court can decide who will be guided by the strict standard of the relevance in order to speedy disposal of the case.

Here the judge can discard the witnesses who are believed to be immaterial in certain grounds in later stage of the cases also. If there is any determinative matter lies and the judge considers it as material for the deciding the cases ,the judge can confine evidentiary order to this matter and will await the results before issuing a further evidentiary order.

Ronald J. Allen, Stefan Kock, Kurt Richerrberg, The German adventure in civil procedure: A plea for more details and fewer generalities in comparative scholarship, 1988 9 In American system the importance of settlement is much more than that of German’s as the dispute is mainly centered between the private parties for private rights. In America at the time of settlement the parties will bargain themselves in the context of the law. Here the economic pressure to settle the matter is intense as the cost and number of attorney involves in the investigation, discovery and trial are high.

Hence here the outcome is less foreseeable than German legal system. For example in the case of damage, the case will be tried only by the judge in Germany and damage will be assessed by the judge himself. Moreover the judge will provide the detailed reason of the award of the damages . Because of this, there is uniform damages prevails in Germany. But in America the approximate damage is less foreseeable and it leads to uncertainty, because this, there need a good legal representation of the case. (14)

In civil law the trial includes some isolated discussions before the judges which may extends for very short period . The written communications between the parties, evaluation of procedural rulings, submission of evidence etc are made through these discussions. Such conference prolong till the end of the proceedings. (15)But in common law jury will no be available for any convened ,recalled and dismissed

14. Marc Galanter and Mia Cahil, Most Cases Settle, Judicial promotion and regulation of settlement, 1994 15. John Langbein , Cultural Chauvinism in comparative law, 1997 10 proceedings over an extended period. Such proceeding is mainly confined in the court room and the procedure will be in continuously going on. So here it is required an elaborated pre trial as once the proceedings commenced there can not be any chance of going back to previous procedure and search for further information.