The German Legal System and Legal Language


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Introduction

Author: Howard D. However, behind these is a highly sophisticated, codified structure, built upon century-old ideas and methods. Especially for English-speakers from a common law background needing to navigate their way through this maze, such an intricate, multi-layered architecture appears incoherent and mysterious. Those confronted with German communications or official procedures, or who wish to learn more about the German legal system or language, are often simply lost by their complexity.

To many people, the subject still seems like a closed book. It is supported by detailed, cross-referenced notes, an extensive, specialized vocabulary, a bibliography and a paragraph register. The meanings of innumerable German legal expressions and terms are clarified.

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In addition, attention is occasionally drawn to equivalent concepts and norms found in English law. Together, this material represents a unique compendium of information on a subject in which accuracy and experience can be vital. The work is the product of knowledge gradually acquired by its author, a translator and interpreter and a former UK Solicitor and German Rechtsanwalt, over nearly 25 years. With its many pioneering definitions and precise explanations, the book continues to be a reliable and valuable source of reference and learning tool for anyone interested in the German legal system and legal language or who, for professional or private reasons, becomes involved with legal affairs or transacts business with a German connection.

Although most were adopted in the last several years, they very quickly became outdated and can hardly cope with the developing business environment. Moreover, the absence of the new Civil Code remains a major problem. As Russia's experience demonstrates, a modern Civil Code makes a big difference in improving the country's legal environment. Ukraine has several tax laws which are constantly revised with the latest idea being to codify all tax laws in one comprehensive tax code. At the start of independence, foreign investment legislation was extremely favorable and provided for all sorts of privileges and exemptions.

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Gradually these privileges and exemptions were revoked, with attempts by the Government to revoke even those which were grand-fathered at present, a combined claim filed by a large number of such investors is pending at the Constitutional Court of Ukraine. Currently, foreign investors are generally subject to a national regime with minor exceptions provided by relevant legislation and international treaties. Ukraine's Participation in International Treaties and Conventions One bright spot is that Ukraine has undertaken a growing number of international commitments, some of which were inherited from the Soviet times when Ukraine, as an independent member of the United Nations, participated in most of its conventions.

Other commitments have been undertaken since Ukraine gained its independence. Ukraine already is, or plans to become, a member of several major international organizations, as evidenced by its pending application in the WTO. Ukraine already signed this Convention, but ratification is still pending in the Supreme Rada.

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Incoterms were enforced in Ukraine by a Presidential Decree a quite unusual development, since states traditionally leave application of Incoterms to the discretion of the parties. It should be also noted that Ukraine participates in major intellectual property rights conventions, including the Paris and Madrid Conventions. In addition to multinational conventions, Ukraine is party to a number of bilateral tax, trade and investment treaties. Closer cooperation has developed between Ukraine and the other ex-Soviet republics, both on a multilateral CIS and bilateral bases.

Although Ukraine is not a member of the Customs Union, it has bilateral free trade agreements with most CIS counties and participates in a number of multilateral CIS agreements. Comparative Analysis of Legal Developments in Russia and Ukraine Because many of the Conference participants are more familiar with the Russian legal system, our observations on how the Ukrainian and Russian legal systems are developing independently after having been under the same system for 70 years may help to better understand Ukraine's legal environment.

In Soviet times, virtually all legislation was drafted in Moscow. Although each Soviet Republic, including Ukraine, had its own Civil, Labor, Administrative and other Codes, all of them looked surprisingly similar. Such ultimate unification was based on dictates from Moscow. It was not, therefore, surprising that after the dissolution of the Soviet Union, each Soviet Republic started to move in a different legislative direction, rejecting to various degrees what was created in Russia and trying to create their own unique legislation.

This reaction is emotionally understandable, but Ukraine's mistake was that it also ignored the positive legislative developments achieved in Russia and missed an opportunity to learn from Russia's mistakes. Today a process of unification of Russian and Ukrainian law is slowly reemerging, but this time on a voluntary basis. As if to confirm this new process, the Ukrainian Supreme Rada recently created an inter-factional Deputy Group for direct contacts with the Russian Duma.

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As was mentioned above, Ukraine is still using the old Soviet Civil Code of which was essentially based on the German BGB with some amendments that were introduced in the last several years. In addition, selected types of contracts and agreements are governed by special laws, for example lease agreements are governed by the Law on the Lease of State Property, pledge agreements by the Law on Pledge, the leasing of land by the Law on Lease of Land, corporate foundation agreements by the Law on Commercial Companies Economic Partnerships , intellectual property agreements by laws on intellectual property, etc.

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There is also a special body of law governing international business transactions, or IBTs the term used in Ukraine is "foreign economic transactions". In addition, selected types of IBTs are governed by special laws and international conventions to which Ukraine is a party. IBTs in different areas of international freight are governed by special laws and relevant international conventions.

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Selected Rules Applicable to Most Frequently Used Types of Contracts While entering into a specific type of contract or agreement, it is necessary to examine all applicable legislation, as well as Presidential Edicts, decrees and regulations of the executive branch, which often contain very important specific rules, such as, for example, bans or restrictions on certain types of transactions e. It should also be mentioned that laws of Ukraine have strict procedural rules applicable to the form of transactions written form, notarized form, number of signatures, etc.

Although this ban is essentially unconstitutional both assignment of claims and transfer of debts are allowed by the Civil Code , in practice it is advisable to avoid entering into these types of transactions, unless the parties are willing to challenge the validity of the Presidential Edict in courts. In the past, this Law was applicable to leases of non-state property only if the parties to such a lease agreed on its applicability by mutual consent.


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Recently, however, the Law on the Lease of State Property was amended to provide that it is directly applicable to leases of non-state property, unless the parties of such lease explicitly exclude the application of this Law. Despite the absurdity of this rule, failure to observe it may result in invalidation of the entire transaction to which there are quite a few practical examples , as confirmed by a decision of the Constitutional Court in December The above examples clearly demonstrate the importance of careful review of applicable current legislation while entering into a specific transaction.


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  8. Despite this confusing and complicated legal environment, government authorities and courts demand strict compliance even with most absurd legalistic requirements and failure to observe them often may result in quite unpleasant surprises for uninformed parties. Domestic transactions may only be governed by Ukrainian law and if by mistake the parties to a domestic transaction provide for a choice of foreign law this happens sometimes when the parties to a transaction are foreign owned Ukrainian subsidiary companies , the court would simply invalidate this provision.

    In terms of IBTs, both the Civil Code and the Law on Foreign Economic Activity allow the parties to choose the law applicable to their rights and obligations under their transaction.

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    If such choice has not been made by the parties, Ukrainian law contains a body of conflict rules applicable depending on a particular type of IBT. It is important to note that non-lawyers signing IBTs often believe that application of foreign law will allow them to escape the mandatory regulatory requirements of Ukrainian law administrative, tax, currency, etc. This is, of course, not true because foreign law is applicable only to rights and obligations of the parties and may not replace the regulatory requirements of Ukrainian law.

    The parties to IBTs are also free to choose the mechanism for dispute resolution, with the principal options being either local courts or international arbitration ad hoc or institutional. Our practice shows that international arbitration is advisable when a Ukrainian party to the IBT is a large company with a solid reputation.

    In most other cases, local courts are recommended in order to secure quick injunctions and greater chances for enforcement. In terms of language, although the original documents of IBTs may be executed in a foreign language only, it is strongly recommended to execute them in Ukrainian as well to avoid troubles with notarized translations, etc.

    The German Legal System and Legal Language The German Legal System and Legal Language
    The German Legal System and Legal Language The German Legal System and Legal Language
    The German Legal System and Legal Language The German Legal System and Legal Language
    The German Legal System and Legal Language The German Legal System and Legal Language
    The German Legal System and Legal Language The German Legal System and Legal Language
    The German Legal System and Legal Language The German Legal System and Legal Language
    The German Legal System and Legal Language The German Legal System and Legal Language

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