CC BY
325
1 Xi^**
THE SYSTEM AND FORM OF LAW
I 4
Systematization of legislation in Germany
DOI: http://dx.doi.org/10.14420/en.2015.13
Tamara Valeryevna Gavasheli, postgraduate of the Department of Constitutional Law The Russian Presidential Academy of National Economy and Public Administration (RANHiGS), lawyer and expert of the International Centre for Financial and Economic Development, e-mail: [email protected]
Abstract. Problems of the systematization exist in the legal systems of various
types. A comparative analysis shows that their decision concerns not only legislative technique, but also substantive questions of law. Each legal system offers its methods and forms of systematization, and depending on it, «codified» and «non-codified» legal systems are allocated. Largely codified nature of its branches is a distinctive feature of countries of the Roman-Germanic legal system. The article deals with problems of legislation, experience and forms of its systematization and records, as well as the experience of creation and functioning of the legal classifier in Germany. Keywords: systematization of legislation, incorporation, codification, law-making,
the classification of regulations, legislation of Germany.
Codification in the Roman-Germanic legal system appears as a kind of legal technique, which has enabled the implementation on the European continent of «natural law school plans, to complete the evolution of the centuries of jurisprudence, clearly laid out a law, in contrast to the chaos of compilations of Justinian, relevant to public interests»1. «Merit of codification is that it has completed the formation of the Roman-Germanic legal family as an integral phenomenon.
Especially it was significant the role of the French codification: creation of the Civil Code, known as the Napoleonic Code in 1804. Almost a century gap between the adoption of the French Civil Code and the German Civil Code allowed the latter
1 René David, Camille Jauffret-Spinosi. Principal legal systems of today. -
M., 1996.
to exceed the first one by legal and technical qualities, because while the French lawyers devoted themselves to exegetical commentaries, the German lawyers continued to study and deepen the Roman law. As the dean Carbonnier aptly put it, «custom was dozing, and doctrine was re-interpreting»1.
The methodology of execution of the codification work, markedly different from the French methodology, has been developed by German lawyers, so it can be conventionally referred to as «German». It is more popular in the legal systems of Central and Eastern Europe. German jurists, developing methodology of codification and applying it in practice, come from the thesis of the impossibility of an accurate and complete statement of normative legal requirements in the legislative acts in a form accessible for correct, accurate and exhaustively complete understanding by all, without exception, members of the society2. They believe that in the course of lawmaking (especially codification) it should be limited only to the wording of the general principal provisions, leaving law enforcement agencies (and first of all to the courts) the ability to interpret them in the application to specific cases-following the example of the Anglo-Saxon legal system.
German traditional legislative technique uses a high level of doctrinal normative legal acts, and especially the codified ones. Codifiers use for the formulation of regulations a large number of science-based general provisions, which are the main focus3. Code created by «German» technique serves as the main form of the normative expression and formal manifestation of scientific and legal concepts that define the legal regulation in various spheres of social life. German legislators and codifiers traditionally sought to make normative legal acts available to full and accurate awareness of a narrow circle of experts-jurists. Codes created according to the «German» method, are designed mainly for professional interpretation, which is carried out by persons having special legal, professional or scientific training. Therefore, such systematizing act of legislation is available, as a rule, for comprehension and usage mostly by professional lawyers4.
The special role of the general provisions predetermines features of the structure created by «German» method of codes. Unlike legislative acts created by the French method of codification, codes, designed by the German methodology, as a rule, have a so-called the Pandectist System. They are divided into two parts, the general and special. The general one is for the concentrated expression of general provisions, which, therefore, are logically connected with all direct requirements concentrated in the special part. This possibility of systematization and strictly consecutive presentation of general regulations was an advantage of the Pandectist System of codified normative legal acts. This structure allows provide the unity of the general provisions and closer logical connection between them, and in the end
1 The same. - P. 53.
2 Dolle H. Von Stil der Rechtssprache. Tubingen, 1949; Girrke O. Der Entwurf BGB ist das deutsche Recht. Berlin, 1889; Kindermann H. Die Rechtlinien der Gesetzestechnik. - Berlin, 1978; HaneyG. Grundlagen der Theorie des Sozialistics; and others.
3 Kindermann H. Die Rechtlinien der Gesetzestachnik. - Berlin, 1978. - S. 25-26.
4 KerimovD.A. Legislative technique. - M., 2000.
greater efficiency in identifying immediate legal regulation, in ensuring the accuracy of the awareness by the addressees of the regulations of the general part. Provisions stipulated in the general part of the code, act as a basic start not only to the code itself, but also for other normative legal acts regulating similar relations. Thus, the creation of the code based on researched "German" methodology implies the possibility and even the necessity of existence other than code, legislative acts, supplementing and specifying the code.
Existence of codes created by the German methodology makes it possible adequately, accurately and objectively to reflect in the legislation in force particular legal regulations, while maintaining the consistency of legislation, semantic linkages between its elements, providing logical subordination of specialized laws to the general provisions defining the branch of law.
It is insecure and dangerous to use as a base of the general provisions the elements of the conceptual and legal doctrines, not verified by legal science and practice. Therefore, the codification according to the German procedure is more effective when carried out in relation to normative legal acts, expressing the rule of law, belonging for a long time to allocated, having a long history of existence and studying branches of law. For codification in the framework of the Institute of law, this technique is barely usable in many ways because of the inability to highlight clearly general provisions in the framework of the group of legal norms not constituting a separate branch of law. It is not desirable to use this technique with the codification of branches of law, formed recently and has not received sufficient academic development. It should be noted that the German technique under research is more preferable at executing codification of quite large in terms of branches of law, encompassing a large number of legal norms.
Of course, it will not be a mistake to choose this technique to codify small industry, norms of which are small in number and regulate the narrow, specific sphere of social relations. But then created act would be unreasonably difficult.
Reception of Roman law in Germany has been widely reflected in such a major legislative monument, as the German Civil Code of 1900. The German law, which sufficiently assimilated the achievements of Roman law, compiled its foundation1. This code in Germany is openly recognized as the creation primarily legal-technical. Particular attention should be paid to a search qualifier, applicable in Germany. Already in 1949, i.e. immediately after the formation of the Federal Republic of Germany (FRG), German legal scholars questioned the systematization of all existing legislation. At the beginning of next year, it was suggested to create search qualifier. Following numerous discussions in the Committee on Internal Affairs, Bundestag at the next 189th meeting held on February 6, 1952, made a decision on preparation and regular annual publication of the official search qualifier. Its first issue was prepared by the Ministry of Justice of the Federal Republic of Germany in December 1952 year.
Search qualifier in Germany is the official list of existing federal legislation. This
1 SaidovA.Kh., Comparative law (the major legal systems of modernity). - M., 2003. - P. 156.
means that the classifier reflects only laws, other acts and amendments thereto, published in chapters (I) and (II) of the Federal Bulletin (periodical, in which legal acts are published as they have been adopted). In turn, search qualifiers (chapters A and B) are published as annexes to the chapters I and II of the Federal Bulletin. At the same time, search qualifiers do not include text of legal acts, and contain only their details - type of a legal act, its name and the date of adoption; indicate the year of publication, publishing organ and location in it (usually page) of the legal act; assign certain search number to legal acts.
Along with the search qualifier there is Collections of Federal legislation of Germany (chapter III of Federal Bulletin), which is published based on the Law as of July 10, 1958. The Law has introduced a certain order of records of previously issued official legislative collections, among them there were the Imperial Bulletin, Federal Bulletin of North-German and German Unions, Bulletin of united economic zone administration, Collection of orders of the British zone, and legislation of lands adopted before September 7, 1949, and not contrary to the Federal legislation as well.
Consider the principles of systematization of law and their impact on the structure of the search qualifier in Germany.
First, it is the subjective differentiation and division into public and private laws, which finds expression only in the chapter A. Reflection of interweaving of public law and private law norms in the structure of chapter A of a search qualifier occurs in three ways: separate allocation of public law and private law regulations; complex reflection within the main categories (first level); complex reflection within the headings of the second or third levels.
The location of legal acts in this or that major category depends on what regulations are (according to the authors of the classification) paramount.
In addition to division of law into public and private laws, German jurisprudence distinguishes the law into material and formal (procedural). In this context, the legal community discusses two aspects: what is the most important from the point of view of legal systematization, i.e. the unity of the procedural principles and relationship of procedural norms or legal relationship, to which procedural legislation is directed. Search qualifier of Germany is built on the first principle, while in Russia it is based on the basis of the second position.
Another one, a third approach, which has directly influenced the structure of the search qualifier of Germany, is expressed in the differentiation of legal norms, in accordance with the principle of their action in space. This initially led to a division in a unique search qualifier of Germany of Classified «External Relations», and in 1968 year a search qualifier was divided into two separate parts- A (internal federal legislation) and B (international treaties and agreements).
There are system limits of a search qualifier. As it has been already noted, the search qualifier of Germany includes legal acts published in the Federal Bulletin and Federal Vedomosti, and departmental normative acts are not subject to be included in it.
Search qualifier does not take into account the land legislation; the exception
is the land legislation, adopted before September 7, 1949. The said approach has the following logic rationale. In accordance with the article 31 of the Basic Law of Germany, federal legislation, regardless of the type of a federal legal act, takes precedence over the land legislation. In addition, land legislation is effective only if it conforms to the basic provisions of the federal legislation (article 142 of the Basic Law of Germany). As a result, norm-making of lands generally is limited to certain legal areas, such as: culture, education, utilities, maintenance of public order and public security.
Legal acts of the European communities and the European Union are taken into account in a search qualifier of Germany only partially, i.e. in the case of publication in the Federal Bulletin or Federal Vedomosti. As it is well known, the Bulletin of the European Union (EU) is the main printed edition here1.
All the above said leads to the conclusion, that the German technique has its strengths and weaknesses, the advantages and disadvantages. After analyzing the essence of the techniques and methods used by the representatives of the German school in conducting systematization, peculiarities of the regulatory opportunities of codes designed by them, practice of codifications performed by them, it can be concluded that the current practice of systematization, codification in particular, could apply German technique. Selection of experts should be determined by the specifics of the legislative array and peculiarities of the system of legal norms stipulated in this legislation.
References
1. René David, Camille Jauffret-Spinosi. Principal legal systems of today. - M., 1996.
2. Dolle H. Von Stil der Rechtssprache. - Tubingen, 1949.
3. Girrke O. Der Entwurf BGB ist das deutsche Recht. - Berlin, 1889.
4. Kindermann H. Die Rechtlinien der Gesetzestechnik. - Berlin, 1978.
5. Kindermann H. Die Rechtlinien der Gesetzestachnik. - Berlin, 1978.
6. KerimovD.A. Legislative technique. - M., 2000.
7. Saidov A.Kh., Comparative law (the major legal systems of modernity). - M., 2003.
8. Reference on standard-making technique / Translated from German. NG Yeliseyev / under gen. ed. V.F. Yakovlev. - M., 2002.
1 Reference on standard-making technique / Translated from German. N.G. Yeliseyev / under gen. ed. V.F. Yakovlev. - M., 2002. - P. 12.
