SECTION II - General Aspects

Author:E. J. Cohn and G. Meyer
Profession:Sir
Pages:34
 
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  1. In England the courts are open for all types of legal disputes with the sole exception of those which are expressly excluded from the jurisdiction of the Courts by statute. In Germany the position is different. The principle of German law is that the courts have jurisdiction only in regard to questions of private law and to criminal matters. This leaves a large field open which in this country is covered by the jurisdiction of the courts, i.e., the field of constitutional and administrative law, and especially revenue law. Formerly in this field the administration could freely decide, but during the last 150 years this unsatisfactory state of affairs has gradually been removed by the development of special courts of varying description, such as administrative courts (Verwaltungsgerichte) and others. But in legal parlance it is still usual to refer to those cases in which the ordinary courts have jurisdiction as those in which redress by ordinary law is given (der Rechtsweg ist zulissig), although practically all other types of disputes may now also be brought before courts (other than ordinary courts), whose composition and general standing secure a proper and entirely impartial treatment of the case. The question whether the ordinary courts have jurisdiction or not depends entirely on the delimitation of private and public law and, is therefore, often doubtful. As has been well said ' the debates on this formality devour a terrifying amount of labour, nerves and money ' (Baunbach).

  2. The principle according to which the ordinary courts deal with matters of private and criminal law only is, however, not free from exceptions. On the one hand the ordinary courts may by an express statutory provision be granted jurisdiction for certain defined kinds of disputes on question of

    public or administrative law. This has often been done, e.g., with respect to claims for damages against public corporations resulting from violations of their official duties by Civil Servants. (See formerly article 131 of the Weimar Constitution and article 19 (4) of the Basic Law for the Federal Republic of Germany.) The ordinary courts may, on the other hand, be prevented by statute from dealing with certain defined kinds of disputes on questions of private law. By legislation the ordinary courts may be replaced in certain matters by special courts (Sondergerichte). See article 101 of the Basic Law for the Federal Republic of Germany. The most important...

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