German Legal System Research Articles

Why Price Stability?

The European System of Central Banks (ESCB) is contractually obliged to ensure price stability. That is a vital prerequisite for the applicability of the nominalistic principle in a monetary economy according to which money debt consists merely of a certain quantity of accounting units like a number of dollars or euros. The conceptual pair of the nominalistic principle and price stability is seen as plausible focal principle (Schelling) of transaction cost minimizing actors of a paper money economy. On the other hand, an inflationary target of x% as suggested by Bernanke et al. contradicts not only the nominalistic principle that actually underlies the German legal system but, on its own, is also implausible as focal principle.

Why Price Stability? An Answer from the Perspective of New Institutional Economics

The European System of Central Banks (ESCB) is contractually obliged to ensure price stability. That is a vital prerequisite for the applicability of the nominalistic principle in a monetary economy according to which money debt consists merely of a certain quantity of accounting units like a number of dollars or euros. The conceptual pair of the nominalistic principle and price stability is seen as plausible focal principle (Schelling) of transaction cost minimizing actors of a paper money economy. On the other hand, an inflationary target of x% as suggested by Bernanke et al. contradicts not only the nominalistic principle that actually underlies the German legal system but, on its own, is also implausible as focal principle.

What Determines the Costs of EmploymentProtection Legislation for Employers? Evidence from Cross-country Enterprise Surveys

The article examines the determinants of the costs incurred by employers while they fulfill the requirements of employment protection legislation. Using the World Bank Enterprise Surveys data from over 50,000 firms in 93 countries in 2005-2011 we verify that, ceteris paribus, these costs are higher for large, private, domestically owned firms in the manufacturing sector, as well as for those enterprises which are more covered by enforcement. With firm characteristics held constant, the costs of employment protection are significantly higher in more developed countries with stricter regulation of temporary employment and higher relative minimum wage, and are considerably less in countries with socialist and German legal systems than in the common law countries.

Hanse Law School - A Promising Example of Transnational Legal Education? An Alumna’s Perspective

Many years after the Bologna declaration a possible reform of the German legal system is still hotly debated. Already 6 years ago the Universities of Bremen, Oldenburg and Groningen introduced a Bachelor/Master programme in European and Comparative Law (Hanse Law School). This contribution shall illustrate in how far these programmes meet new demands of the internationalised labour market. To achieve this the content and the aim of the programmes shall be contrasted with the traditional German legal education and reactions that graduates experienced on the labour market shall be analysed. What can be a promising way for universities to adjust their way of skilling to contemporary challenges? Are the students and graduates of the Hanse Law School, for example, experiencing that the study is “fortiter in re, suaviter in modo” as the slogan advertises and for what kind of career are they equipped?

Consensual Elements in German Criminal Procedural Law

The aim of German criminal procedural law is not to convict the accused at any cost. Even a guilty party can only be convicted if the criminal procedure is held in accordance with the law. If this is not possible, the German legal system accepts the risk of possibly acquitting a guilty party; it finds this more tolerable than the irregular conviction of the culprit. A criminal procedure seeks the truth. Only on the basis of a judicial conviction of the crime and its culprit may a sentence be imposed. This, though, can only be based on the so-calledprocedural truth.On the one hand, the past can never be reconstructed precisely; on the other hand, clarification can only be found through legal means and by following designated paths allowed by procedural law. Therefore, further investigation must cease if it is only possible to proceed by violating procedural law.

Unikanie opodatkowania w świetle orzecznictwa niemieckiego

Autor skupia się na problemie unikania opodatkowania w niemieckim systemie prawnym i upatruje ważny element w dyskusji na temat tego zjawiska w niemieckim orzecznictwie sądowym. Obok rozważań doktryny na temat odpowiedniej ustawowej regulacji dotyczącej opisywanego zjawiska, zaprezentowana została ustawowa regulacja ogólnej klauzuli przeciwko unikaniu opodatkowania. Całość opracowania dopełniona została analizą rozwojowego orzecznictwa (tzw. Gesamtplanrechsprechung) najwyższego niemieckiego sądu właściwego w sprawach podatkowych (Bundesfinanzhof), która w sposób szczególny ukazuje poglądy niemieckich sądów podatkowych dotyczące walki z unikaniem opodatkowania. Tak ukształtowany artykuł ma stanowić materiał komparatystyczny i głos w dyskusji na temat sposobów przeciwdziałania unikaniu opodatkowania (obejście ustawy podatkowej).

Non-Pecuniary Damages in the Age of Personality Rights: A Search for a Fair and Reasonable Framework Comparing the German and Italian Legal System

Non-Pecuniary Damages in the Age of Personality Rights: A Search for a Fair and Reasonable Framework Comparing the German and Italian Legal System

Проблемы развития законодательства и судебной практики в сфере корпоративных отношений в России и Германии: сравнительно-правовой аспект

The article deals with the concept of corporate entities in the legislation of Russia and Germany have shown trends “Europeanization” of Private Law at the present stage, the trend of development of Russian corporate law. The analysis of the most significant changes in civil and corporate law in Russia and Germany. The article follows the idea of the necessity of building development concept, reception and coordination of legislation. Evaluates the implementation of the legislative innovations of similar legal systems, in particular, the German legal system. This study was carried out on the basis of comparative legal analysis to determine the most appropriate legal path of development and improvement of the legal system of the countries studied. In this article are analyzed only some aspects of civil law and jurisprudence Russia and Germany, which appear to be most interesting. We also find edostatki in the legal regulation in the resolution of corporate disputes.

Internet Jurisdiction: A Survey of Legal Scholarship Published in English and United States Case Law

This study provides a survey of the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in the United States. A companion study, released simultaneously, explores similar issues as they are treated in the German legal system. The goal of the report is to identify trends in legal literature and case law and to serve as a comprehensive, objective resource to assist scholars and policy-makers looking to learn about the issues of jurisdiction on the Internet. The U.S. study shows that most academic scholarship discusses all three aspects of jurisdiction law — personal jurisdiction, choice of law and jurisdiction to enforce — within the individual articles. In addition, the literature treats a noticeably wide variety of legal areas — including, for example, analyses of specific cases, particular issues related to e-commerce, and the regulation of online speech — but overall, does not appear to have a consensus on an approach or solution that cuts across the varied areas of law addressed by the scholarship. Thus, in effect, a review of academic scholarship shows that Internet jurisdiction is as varied as the legal issues and fields of law it permeates.With respect to U.S. case law, Fordham CLIP's research indicates that issues surrounding Internet jurisdiction gravitate toward the Ninth Circuit and the Second Circuit more so than other federal circuits. Moreover, contrary to the body of academic literature, the research demonstrates that U.S. courts predominantly adjudicate matters of personal jurisdiction in Internet cases rather than other subsets of jurisdiction, and that Internet jurisdiction issues trend toward intellectual property and defamation cases. Lastly, the case law shows that, although the Zippo and Calder decisions remain the clear, predominant legal standards and tests for Internet jurisdiction matters, when and how these rules are applied by U.S. courts lacks uniformity.

Internet Jurisdiction: A Survey of German Scholarship and Cases

In late June 2013, Fordham CLIP completed a study, “Internet Jurisdiction: A Survey of German Scholarship and Cases.” This project provides a survey of the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in Germany. A companion study, released simultaneously, explores similar issues as they are treated in the United States. The goal of the report is to identify trends in legal literature and case law and to serve as a comprehensive, objective resource to assist scholars and policy-makers looking to learn about the issues of jurisdiction on the Internet with a focus on the German legal system and relevant EU laws. The research survey shows that, although various trends can be identified within German and EU case law, no consensus on the treatment of international jurisdiction can be ascertained. Although the academic literature demonstrates awareness of the problems and pitfalls in Internet-related cases, clear solutions are seldom offered. Moreover, notwithstanding German Federal Supreme Court and European Court of Justice decisions that have set the stage for further development, the research indicates that the coexistence of German and European Law, as well as the presence of separate subject matter-specific legal regimes, preclude the identification of any real consensus views.

European Union Data Protection Law and the Friend Finder Service in Social Networks

This paper addresses the legal implications of the Friend Finder, an online service, which is provided by Social Networking Site (SNS). In particular, this paper aims to examine what issues an entity engaged in operating an internet website that provides the registered users from the European Union (EU) territory the Friend Finder service must adhere to in light of the provisions of the EU data protection law. An Investigation procedure opened by the local data protection authority in Hamburg, Germany, against Facebook (one of the largest Social Networking Sites in the world), claimed, inter alia, that the Friend Finder feature, allowing the site to contact individual person which are not subscribed yet to the SNS violating Germany's data protection law, raises three important legal issues concerning data protection law: Firstly, whether the SNS provider is allowed to collect personal data such as electronic mail addresses from individuals using the SNS services, and from unregistered individuals (Friend), and what are the limitations under EU data protection law for using such data for commercial purposes. Second, whether national data protection authorities of EU Member States have jurisdiction over global Internet entities located outside of the EU that are processing personal data of individuals inside the EU. Third, whether it should be considered as illegal marketing practice for the SNS provider to use the “Friend Finder” service to send email messages to the Friend, inviting him or her to join the SNS. Part I provides the legal framework of data protection law in the European Union and introduces the main legal principles for processing the personal data of individuals inside the EU. In addition, part I provides a legal analysis for questions of jurisdiction and conflict of law. Part II provides a brief overview on the General Directive, and on the provisions of the e-privacy Directive. In addition, part II provides an overview on the implementation of the General Directive and the e-Privacy Directive in the German legal system. Part III analyses the EU data protection law provisions, which are applicable to the use of the Friend Finder service. The last part of this Master's Thesis concludes that SNS providers using the Friend Finder service in a social networking sites for commercial purposes, are held fully reliable for compliance with the EU data protection law provisions.A thesis submitted to the Bucerius/WHU Master of Law and Business Program in partial fulfillment of the requirements for the award of the Master of Law and Business (“MLB”) Degree.

The irony of stakeholder management in Germany: The difficulty of implementing an essential concept for CSR

Germany, in most academic works on corporate governance and corporate social responsibility (cSr), is regarded as a stakeholder democracy (e.g., aguilera and Jackson 2003; O’Dwyer 2005; crane et al. 2004; crane et al. 2005; Schmidt 2006). allen et al. (2009, p. 1) attribute this notion to the German legal system which “ensures that firms are stakeholder oriented.” especially relevant in this context—and key to the perception of Germany as a stakeholder-oriented country—is the system of co-determination (mitbestimmung), which gives employees the possibility to participate in the organizational decision-making process at all levels. In large listed corporations with more than 2,000 employees, employee representatives are even granted half of the seats on the supervisory board by law. this model of capitalism, which integrates employee interests to a much higher degree than the anglo-Saxon model, has also been branded as “rhenish capitalism”, a term coined by French economist michel albert (1991). he compared this form of capitalism, which is prevalent in countries that border the river rhine (Switzerland, austria, Germany, France, and the netherlands), to the “neo-liberal anglo-american model” primarily represented by the united States (u.S.) and the united kingdom, where the position of workers is substantially weaker. these participation rights of workers go in line with the notion that German companies put less emphasis on maximizing shareholder value than american or British companies because German companies also have to consider the interests of stakeholders like employees whose interests might be diametric to—especially short-termed—profit maximization (turnbull 1994). this understanding has also been demonstrated by several studies (e.g., ascolese 2003; Barnett 2007; habisch et al. 2011). In this context, Denis and mcconnell (2003, p. 6) point out that “in many european countries shareholder wealth maximization has not been the only—or even necessarily the primary—goal of the board of directors.” Likewise, in a large empirical study, allen et al. (2009, p. 2) asked managers whether they though that a company “exists for the interest of all stakeholders” or if “[s]hareholder interest should be given the first priority”. eighty-three percent of the German managers that participated in the survey viewed the company as a legal entity serving all stakeholders’ interests, while 76 and 71 % of the american and British managers, respectively, spoke out for prioritizing shareholder value. these preliminary thoughts demonstrate that the supposed stakeholder orientation to be found in Germany is mostly based on legal statues, namely the system of codetermination. However, the finding by Allen et al. (2009) uwf DOI 10.1007/s00550-013-0268-1

Entre doctrine et nécessité : l’œuvre législative de la monarchie absolue en Grèce (1833-1843)

The crowning of Othon 1st in the newly independent Greece devastated by years of hardship in its long struggle for its freedom from the Ottoman rule, inaugurated a period of extensive legal reforms. Initiated under the expert advice of Georg Ludwig von Maurer, professor in the Munich Law School, the reforms mixed the necessity to reinforce the institutions of an absolutist monarchy with modern legal provisions inspired by the French and German legal systems. These changes reflected the reformers’ efforts to unify, modernize and rationalize the various components of a fragmented legal system and to align Greek laws with those of more advanced Western European states. However, private law reforms had to take into account the expectations of a Greek population still attached to its traditions and its culture. The provisional adoption of the Hexabiblos and the confirmation of local customs initially eased the transitional process but eventually postponed the codification project to a later period. In this regard, the Greek experience is a good illustration of the various challenges raised by legal transplants and the formation of a new legal culture.

Old Laws, New Citizens: Trust in the Courts in the New Federal States

After the reunification of West and East Germany, West German laws, lawyers and judges almost completely replaced the East German legal system, giving rise to a unique situation in which ‘old laws’ governed ‘new citizens’. Are West German laws and legal institutions incompatible with the socialist values of East Germans? Or do East Germans judge legal institutions based on their performance? Using three surveys from the 1990s and 2000s this article shows support for both cultural and performance approaches to institutional trust, but suggests that the impact of cultural factors may have declined over time. Improved economic and political performance in the 2000s, moreover, has led levels of trust in the East to reach nearly the same levels as in the West. Surprisingly, the results show as well that ‘socialist values’ in West Germany are also a barrier to trust in the courts.

Banks in the Insurance Distribution Business – Controversial Issues of the Spanish Regulation and Reference to the Corresponding Provisions in the German Legal System

Bancassurance has grown to currently become a completely consolidated insurance distribution channel in the global market, even though it shows unequal levels of development depending on the social and economic characteristics of the different countries. Several factors have contributed to give this phenomenon a particularly important role in Spain, which has led to the specific incorporation of this channel in the Insurance and Reinsurance Distribution Act. However, the provisions laid down in the law have proven to be inadequate to cover such a complex phenomenon as bancassurance, with many varied manifestations that are not always in line with the single model provided by the Spanish law. After studying the historical causes of the Spanish development and the existing legislation, I will show the most controversial aspects of the Act 26/2006, and those that do not reflect the current situation of the market. The analysis is complemented by an examination of the treatment given to this distribution channel by the German legal system.

Expected recidivism among young offenders: Comparing specific deterrence under juvenile and adult criminal law

This paper contributes to the literature on specific deterrence by addressing the issue of selecting adolescents into adult and juvenile law systems. In Germany, different from the U.S. and most other countries, turning a critical cutoff age does not cause a sharp discontinuity from juvenile to adult penal law, but rather implies a shift to a discretionary system of both adult and juvenile law, dependent on the courts' impression of moral and mental personal development of the adolescent at the time of the act. The German legal system draws the line of adulthood at some fuzzy age interval between 18 and 21, which is well above the thresholds prevailing in the U.S. (16 to 18years, state specific) and other countries. Thus, the German evidence entails some external evidence to the previous literature mostly relying on U.S. data. Based on a unique inmate survey and Two-Equation Models controlling for selectivity problems, results show that application of adult criminal law instead of juvenile penal law decreases expected recidivism of adolescents.

Recognition of a 'WCAM' Settlement in Germany

The settlements under the Dutch WCAM procedure, in particular in the Shell and Converium cases, pose new issues with regard to recognition and enforcement in the European Union. The paper comes to the conclusion that such decisions are to be recognized in the EU as judgments according to the Brussels Regulation. In particular, from the viewpoint of the German legal system, they do not – notwithstanding the particulars of a specific case – violate the German order public; therefore they are in principle to be recognized by German courts.

The Culture of German Tort Law

Important tributaries that feed into the culture of German tort law go back to the values of the late 19th century, lessons drawn from the catastrophe of the Third Reich, and core principles of the constitutional regime that was created in 1949. The single most relevant influence today – despite the economic pressures that have led to substantial cuts in many areas – may be the social security system, which has roots both in the reforms initiated by Otto von Bismarck and the social state principle of the German Basic Law. Other issues explored by the author in this very modest attempt to map new trends and identify some of the many cultural factors that in their sum determine how contemporary German tort law plays out in daily practice include the rate of litigation, the willingness of parties to adopt alternative approaches to the resolution of their disputes, the influence of legal expenses insurance, and the level of damages awarded by German courts. The common thread through all of these topics is the role that judges play in the development of the law not only in tort but in just about every part of the German legal system. The true oracle of German law today is not the legislator but the judge.

Selected principles of social welfare in the polish and german legal systems

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The Cultural Limits of Formalism and Uniformity in the German Penal Code

Despite the fact that certainty and predictability in the law are essential building blocks of the German legal system, the goal of uniformity in the law has not precluded the development of divergent local legal practices. For example, while prosecutors throughout Germany use the same criminal law and procedure playbooks, there are wide discrepancies in how prosecutors and judges apply the law in the search for truth. In fact, despite the fact that the system’s compass is directed to administer justice uniformly across the state, in the search for truth, place matters. At each truth finding stage, from the initial investigation of a reported crime to a case’s final adjudication, unique combinations of political and cultural factors shape the system’s outcomes. In some cases, variations in local legal practice reflect different customary attitudes towards crime embedded in the traditions of local communities. The confluence of incentives and leadership practices specific to particular organizational entities also shape the implementation of the law on the front lines. These differences in local legal practices have produced large variations in case dismissal rates and sentencing practices throughout Germany. While one would expect to see variations in sentencing norms in a country like the United States, where each state has drafted its own codes of criminal law and procedure, it is surprising to observe this variation in practice in a state with a common code. Although evidence of a variance in decision-making practices would be unsurprising to legal realists, these variations in outcomes call into question the ability of the law on the books standing alone to achieve the system’s normative goals of restricting prosecutorial discretion and guaranteeing citizens that they will be treated equally before the law The reason for this discrepancy between the system’s normative aspirations and actual practice is easy to identify. Although prosecutors and judges throughout Germany use the same playbook to investigate, prosecute, and sanction criminal activity, it is the individual Lander that bear the responsibility for administering justice. Cross-cutting prerogatives at the Land, region, and local levels affect how prosecutors interpret and apply the law within the zones of discretion permitted by the law. Thus, the flexibility inherent within the formal structure of the law permits informal norms and local prerogatives to define the face of justice on the front lines. The face of justice is constituted by local legal cultures. This article’s central premise is that outcomes in the German criminal justice system are the product of a series of relational processes in which individual subjectivity, office practices, and informal group norms shape how facts are analyzed and the law is interpreted. Rather than operating in an autonomous and uniform manner, the Federal Codes of Criminal law and Procedure play a constructive role in identifying the range of behaviors that the system defines as worthy of criminal sanction as well as the procedural rules of the game. The rules function as a mere starting point that prosecutors on the front lines of justice will interpret, reshape, and apply to particular sets of facts while they comply with institutional norms and expectations. To understand these differences in system outcomes, we must understand the role that culture and place play in the etiology of criminal justice. More specifically, we must understand how local attitudes, organizational constraints, and prosecutors’ experiences mirror local cultural norms that impact the interpretation and implementation of the law. By situating prosecutorial decision-making in local organizational environments, in this article I show how dynamic institutional processes and practices produce and reproduce the decision-making norms that drive regional variances in practice.