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greatest chance of becoming the law in fact." 41
which includes "legal scholarship, the opinions of the
Therefore, when speaking of the "law" of France (driot)
authors of legal literature about the law such as they, as
one should include not ony the enacted law (101) but also
theoreticians, understand it . . . [i.e.,] the body of legal
the judicial decisions (jurisprudence). Since jurisprudence
writing or literature," 42 also plays a role. During the
does occupy a position of beii a "privileged" authority
nineteenth century, French commentators concentrated
in the civil law, practitioners and judges alike must be able
their scholarly efforts on the Code Civil by researching the
to locate relevant judicial decisions. The decisions of lower
legislative history of the various provisions. Modem
French courts (e.g., juges d'instancesktty court judges)
doctrine tends to deal more with the interpretation of
are rarely published. Only selected decisions of the inter-
jurisprudence and with commenting on the civil law as a
mediate level courts (tribunaux de grande instance) and
whole rather than on the specific section of the Code Civil.
the Courts of Appeal are available. However, all of the
The commentators do not view their function as mere
decisions of the highest court in France (the Cour de
technicians but rather attempt to analyze jurisprudence
Cassation) are published. The oficial reports of the Cour
and legislation from a critical point of view. As with
de Cassation are published in two parts, one for the civil
jurisprudence, doctrine is not a source of civil law, but it
chambers, the other for the criminal chambers under the
definitely is an authority in the civil law. This means that
title, Bulletin des arr8ts de la Cour de Cassation. A central
[a]judge is never bound either by an isolated doctrinal view . . . or by a
index Cfichier central) is available and is based upon a
unanimously adopted view of doctrinal writers. . . . Moreover, even ifa
statutory system of subject headings (Service de documen-
judge does adjudicate in a manner indicated by the doctrine, its mere
tation et dhdes de la Cour de Cassation). Supplement-
citation is insufficient; he must adopt, and as his own, all the reasoning
upon which it is based. . . . It is only to be expected, however, that
ing the oficial reports, periodic private reports are
greater weight will be given in the courts to jurisprudence than to
published. These generally contain, in addition to the
doctrine. . . . Doctrine, on the other hand, may be of greatest influence
selected cases, head notes and annotations on the deci-
in those areas precisely where there is no established jurisprudence..It
sions reported.
has, however, sometimes, happened that persistent doctrinal criticism
c. Doctrine. In addition to jurisprudence, doctrine, wiU prompt the abandonment of established jurisprudential positions. 43
Section 11. CRIMINAL LAW PROCEDURES IN THE FEDERAL REPUBLIC OF GERMANY
A-12. General. The law of Germany dealing with what
pear that the regulatory offenses have in some respect
can be called "criminal" conduct is divided into a number
been removed from the StGB, there is an indication that
of separate enactments. 44
the principles embodies in the "General Part" of the
a. Penal Code. The German Penal Code (hereinafter StGB still apply. 51
referred to as StGB), like other continental penal codes, is c. Comparison. The offenses covered by the German
divided into two parts: the General Part and the Special Penal Code are, as a rule, more broadly defined than one
Part. The former contains provisions that are applicable to would find in a simiiar enactment in the United States. As
all of the offenses contained in the latter. For example, a result,
sections dealing with attempts, principals, self-defense, German judges often engage in a great deal of statutory construction,
and statutes of limitation are found in the General Part. for example, when the defmition of an offense appears to be so wide as
Provisions dealing with treason, forgery, murder,
manslaughter, and so forth, are found in the Special Part.
41. Id.
b. Regulatory Offenses. In 1968 Germany removed 42, Id. at 104, n. 119.
from the German Penal Code certain regulatory offenses, 43. Id. at 106-07.
i.e., Ordnungswidrigkeiten (OWiG). The Regulatory 44. Strqfgesetzbuch, or StGB, is the penal code; Jugendgerichtgesetz
Offenses Act of 1968 sought to decriminalize a number of or JGG, is the law for juvenile courts; and Strqfjfprozessordnung,or
StPO, is the law of criminal procedure. There are, likewise, other laws
penal offenses which deal with regulatory and administrative offenses.
for minor infractions unworthy of punishment, partly by removing them 45. Eser, The Politics of Criminal Law Reform: Germany, 21 Am
from the ambit of the penal law and sanctioning them merely as so J. Comp. L. 245, 251 (1975) [hereinafter referred to as Eser].
called regulatory offenses. . . .This has been put into operation mainly 46. The fme usually ranges from DM5 to DM1000. The fme is
in the area of traffic violations, provided they did not cause or threaten called a Geldbusse and the administrative order imposing the fme a
life, lib, or valuable property. 45 BUSSGELDBESCHEID. Id.
47. 0WiG Q 47 (1).
Under the OWiG, the primary punishment is a fine. 46 In 48. Id. at Q 27.
addition to reducing the possible sanctions (in comparison 49. Id. at QQ 35(2), 35(35).
with the StGB), procedures for regulatory offenses have 50. Id. at QQ 79, 80. See also Eser, supra note 45, at 250, 51;
been simplified, 47 the statutes of limitation are shorter, 48 Robinson, Arrest, Prosecution and Police Power in the Federal Republic
and the procedure, to include imposition of fines, is an ad- of Germany, 4 Duquesne U.L. Rev. 225, 276-77 (1965-66) [hereinafter
ministrative process rather than a judicial one involving a referred to as Robinson].
51. D. LEE & T. ROBERTSON, "Moral Order" and the Criminal
judge. 49 AS one might expect, appeals are possible but Law: Reform wforts for the United States and West Germany 181
only under restricted conditions. 50 Although it would ap- (1973) [hereinafter referred to as Lee & Robertson].