LAW MAKING BODIES
The Executive: It administers and polices the law. The head of the government i.e. the Crown is represented by the Governor General.
The Legislature: The Parliament is the supreme law making body in Australia, the Parliament consists of Two Houses i.e. the bi-camerell system. The Upper House is called The Senate and The Lower House is called House of the Representatives.
The Judiciary: The highest court in the judicial system i.e. the High Court. For civil and criminal matters it is the final court. The limitations regarding the powers of state and commonwealth are decided by the high court.
SOURCES OF LAW
The main source of law is the Constitution. It is a document which contains the powers of the states and the commonwealth. It also describes the relationship and structure of the law making bodies.
The Common Law: Laws which come in to existence by the decisions of the judge during the course of declaring and interpreting the law.
Statutory law: Laws made by the Parliament or Acts of Parliament.
Laws of Equity: All citizens are given equal opportunities to prove their case since adversarial approach is used in courts.
DEMOCRATIC CONSTITUTION
Every citizen has the right to appeal in the higher courts if they are not satisfied with the decision of the lower courts. Courts of lower order have to follow the judgements made by the higher courts. This leads to the citizen’s total faith in the judicial system and the constitution. The judicial system ensures that all citizens follow the law.
DISPUTE RESOLUTION IN AUSTRALIA
There are many ways by which disputes can be resolved. Most of the cases are resolved in the courts. There are other methods of solving disputes apart from courts known as alternative disputes resolution. Arbitration and Mediation form a part of them.
Arbitration: When disputing parties refer their case to an arbitrator for resolving it is known as arbitration.
Mediation: Some cases involve lot of expenses and time so they are solved by mediation which reduces the cost, time and business relations are not at risk.
The main participants of the court are the judge, barristers, solicitors and the litigants.
Judge: His main function involves regulating and controlling the legal proceedings.
Barrister: Apart from advocacy he also settles court documents and advises the solicitors on certain issues.
Solicitors: He deals with the public in sorting out issues relating to the court procedures.
The Litigants: They argue their case with the help of evidences and witnesses.
GERMAN LEGAL SYSTEM
The constitutional law is a part of public law. It contains the legal principles regarding the common fundamental and constitutional order in Germany. The law deals with legal rules governing the basic order of the state, its organisations and the highest bodies of the state which are constitutional organs.
The constitution can be broadly classified in to five elements.
Democracy: It is a prerequisite for the constitution.
Republic: It is contrary to the monarchical rule.
Constitutional state: Every citizen is entitled to receive equal rights.
Social State: It is an integral part of the constitution.
Federal state: It is the main characteristic feature of the constitution.
LAW MAKING BODIES
The upper house takes part in the law making process. It has the right to introduce bills. After the consent of the lower house, the bill becomes law.
The Constitutional organs
- Federal Parliament
- Federal council
- Federal Government
- Federal President
SOURCES OF LAW
German National law: It includes all the basic laws.
Law of nations: It includes the important regulations
European community law: Integral part of national legal system
Customary law: Judge made law
Jurisdiction: Important source of law
DEMOCRATIC CONSTITUTION
It is a Representative Democracy. People can implement their power by means of elections and opinion polls. They are done through certain bodies of legislation, administration, and jurisdiction. When the citizen takes part in the political process through representatives he or she has chosen, can be double checked and compared with democratic practice. Legislation is the main task of the Parliament.
DISPUTE RESOLUTION IN GERMANY
Disputes in Germany are solved either in courts (inquisitorial system) or through commercial litigation and arbitration.
Commercial litigation: The concept of conclusiveness is implied in this method.
Arbitration: It is preferable for international dispute resolution.
There are three participants in dispute resolution
The judge: He plays an active role in decision making process.
The lawyers: he helps the parties through the courts process.
The litigants: they present their case through the lawyers.
AUSTRALIA AND GERMANY DIFFERENT LEGAL SYSTEMS
There could be some similarities and differences between two legal systems the reasons being legal structure, classification, fundamental concepts, terminology etc.
LAW MAKING
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German law follows civil codes, which are general rules and principles classified and structured but are brief in nature. The main function of the court is interpreting and applying the law which is contained in the civil code. If the courts cannot ascertain the result of a case following the code they apply general principles to solve it. Where as in Australian law, it is the doctrine of precedent which means judgements made in similar cases by higher courts are to be followed in subsequent cases. They can be altered if they have to. Judges can even apply statutory law in some cases.
- Courts in Australia create the law, give judgement for the disputing parties and also provide future guidance to smaller courts. In Germany the main principles which are in the form of codes and statutes are applied by courts codes. The courts function is to apply and interpret legal norms in particular cases.
- Australian courts follow adversarial approach; the main duty of the judge is to regulate the proceedings. He does not try to ascertain the facts nor does he do any investigations. He gives judgement on the basis of the evidences presented to him. The German courts follow inquisitorial approach. The judge plays an active role in the court. He helps the parties in making their arguments regarding their cases. He helps in establishing the material truth with the help of evidences presented.
BUSINESS PRACTICES(CONTRACTS)
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According to the Australian Constitution a contract has no effect if it is not supported by consideration. It should be on the basis of something valuable. It does not recognise contracts for benefits of third parties. The issue as to whom to sue for damages is of more importance rather than who derives rights under the contract.
- In contrast, contracts in Germany should have a lawful cause, since performing contractual obligations is the main objective. It depends on the parties to decide if contractual rights can be transferred to third party.
- In Germany an offer cannot be revoked due to its binding character and depends on the offers content. It can be revoked before it reaches the offeree. Unlike in Australian law an offer may be revoked because there is no consideration before acceptance. The offer can be revoked even after being accepted by the offeree.
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In certain circumstances there can be unforseen and unexpected events beyond reach of the parties due to which it becomes impossible for the performance of the contract. German law provides an exclusion liability for the non performance of a contract. In Australia parties provide for an exemption of liability in the contract expressly, because frustration and impossibility of performance cannot be anybody’s fault. Therefore no party is liable for damages.
- There should be an aspect of fault for recovery of damages for breach of contracts which is a basic requirement. The innocent party can claim damages even if the breach of contract is caused by negligence in German law. On the other hand in Australian law there is no such requirement for claiming damages.
- If there is a chance of delay in performance of contract the creditor needs to put the debtor in default by a notice of default. But in Australian law the debtor is due to perform his obligation in the stipulated time; he does not require a notice of default.
- In Australia when there is an intention for the transfer of ownership of goods, then the property in it is transferred. In German constitution property in goods is transferred when the parties have agreed to it and on the delivery of goods.
- The German law gives no immediate right to possession of the goods or property. Instead it gives the right against the proceeds of sale of the property after the judicial proceedings. Australian law provides for an immediate right of property to the mortgage who is willing to take possession of the goods or property by a simple notice.
The below mentioned case would help in understanding how a business dispute would be resolved in Australia.
In Dunlop Pneumatic tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the plaintiff agreed to sell tyres to a motor accessory dealer. The dealer promises a discount allowance of 10% from the plaintiff’s price list when he resells the tyres to the traders. The dealer also agrees that while selling to other traders he would obtain written undertakings that these traders would observe the plaintiff’s price. The defendant trader sold below the price list even after giving the dealer an undertaking. The plaintiff sued for breach of the agreement between the dealer and the defendant. The advocates argued on the issue that only parties to a contract may sue on that contract. The further argument was that if a person with whom a simple contract has been made is to be able to enforce it, consideration should have been given by that party to the promisor or to another person at the promisor’s request. Here no consideration was given by the plaintiff and so there was nothing of value to support his claim for legal rights. This was the decision made by the judge.
CONCLUSIONS
The research paper gives an in-depth view of the characteristics features of the two legal systems mentioned. It also analyses how effective they can be on trade and business practices. All sections of the society are directly or in directly affected by the constitution. Which means the nations development depends on its constitution. Both the nations mentioned in the research paper have some common features and differences. But the legal system which is more flexible in nature and applicable to all fields would be of great influence rather than a legal system which is rigid and complicated. From the research we can conclude that the Australian legal system is more favourable than the German legal system, because of its salient features and scope of change for the betterment of the society.
BIBLIOGRAPHY:
1. Articles/Books/Reports:
Dowler, Warwick and Miles, Christine, ‘A Guide to Business Law’, (17thed, 2006)
Freckmann, Anke and Wegerich, Thomas, ‘The German Legal System’, (1999)
Meek, Michael, ‘The Australian Legal System’, (3rded, 1999)
Peters, Michael, ‘Laws of Business’, (2006)
2. Other Sources:
Pejovic, Caslav Civil Law and Common Law: Two Different Paths Leading to the Same Goal (2001) Victoria University of Wellington Law Review
<> at 30 April 2007
They have got powers to grant equitable relief and claims under the Trade practices Act 1974 (Cth)
Freckmann Anke, Wegerich Thomas, German legal system,1999, pg 55
The doctrine of consideration.
Doctrine of privity of contracts
Dunlop pneumatic tyre Co Ltd(1915) AC 847
