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of socio-therapy' ' four categories of offenders: a district court judge (Amtsrichter) for a penal order. The
persons with severe personality disfunction, persons suffering from dan- application is to contain the facts of the case and a request
gerous impulses, youthful offenders who have already undergone cor- for a smc penalty. 101 The judge may either issue the
rectional education without success and display a criminal inclination, order, as requested, or deny it. He may not impose any
and fmally persons who would qualify for psychiatric hospitalization but other penalty than that requested by the prosecutor. If the
might respond more adequately to the special therapy and social help of
order is denied, the judge may either return it to - the
the new institution. 99
prosecutor or order a trial. 102 When the order is issued it
These penal reforms provide German courts a wide range
is sent to the defendant who has one week from the date
of sanctions to consider when deliberating and construct-
of service of the order to raise objections with the district
ing an appropriate sentence. court to the procedure. If the defendant does not object
A-28. Sources of Law. German judges view the con- within the time allowed, the penal order becomes a final
tinuity and development of the law as part of their respon-
sibility. As with other civil law jurisdictions, judges are ex- judgment. 103 When an objection is raised within the time
limit, the case is set for trial which then proceeds like any
pected to "fd the gaps" of legislation by extending the other trial unless the prosecutor decides to drop the matter
lkgal principles expressed in legislation. When Bruno or the objections by the defendant are withdrawn prior to
Heusinger stepped down as President of the German trial. As may be seen, the purpose of the penal order is to
Supreme Court in 1968, he placed the role of the German avoid trial only where the offense is minor and the facts
judge in perspective:
are undisputed.
The highest jurisprudence, that of the Supreme Court, characterizes the The similarity between the German penal order and the Anglo-
law by emphasizing two special tasks:safeguarding both the uniformity American guilty plea is manifest: The prosecution invites the accused to
and the development of the law. The Supreme Court, within its jurisdic- waive any defenses and consent to the punishment propounded by the
tion, has to provide a uniform application of the law throughout the Re- prosecution. There are, however, important differences. Fit, the penal
public of Germany. That can only be achieved if the Supreme Court order procedure applies only to misdemeanors, and even there only
does not, without necessity, decide a similar case differently today than where relatively light sanctions are proposed. . . .The real parallel to the
it did yesterday or the day before. This continuity is not reprehensible German penal order procedure is the short form American citation prac-
conservatism, but simply indispensable to guaranteed stability of the tice for traffic offenses: 'Pay this fme or appear in court.' . . .Second, the
law. 100
German penal order might be said to invite a plea, but not a bargain. ...
[The accused] is offered the sentence on take-it-or-leave-it terms. .. .
A-29. The Penal Order. Any consideration of German
Third, and most important, the penal order does not offer a lesser sanc-
criminal procedure requires brief mention of the "penal
tion in exchange for the guilty plea. The accused who objects to the
order," or Strafbefehl. The penal order proCedure is a order, demands trial, and loses is not likely to receive a stiffer sentence.
type of prosecution and is thus consistent with the . . . Hence, what the accused primarily risks in rejecting the penal order
Legalitaetsprinzip (the rule of compulsory prosecution). is not a greater sentence, but court costs and the notoriety of public
However, a penal order could be described'as a trial with- trial. '04
out a trial. It applies only to misdemeanors (Vergehen). A-30. Conclusion. Having examined the prototypes of a
When the prosecutor receives a case involving a misde- civil law system as it has evolved in both France and Ger-
meanor, he may elect to handle the matter by applying to many, a brief discussion of other civil law systems follows.

Section 111. OTHER CIVIL L,AW JURISDICTIONS 10s
A-31. Republic of Korea. 106 a. Historical. Before 100. Larentz, The Open Legal Development Germany in The Role
World War 11, the criminal procedure of Japan was used of Judicial Decisions and Doctrines in Civil Law and Mired Jurisdictions
to a large extent in Korea. After the War, Korea adopted 139 (Dainow ed. 1974).
its own law of criminal procedure. 101. StPO §§ 407, 408. The only penalties that may be requested
are minor in nature. Id.
b. The Prosecutor. Under the Korean system the
102. Id. A judge might disagree because "he believes the matter
prosecutor is permitted to institute charges. The prosecu- should not be disposed of by penal order, such order is not justified by
tor directs the investigation of the case, either by conduct- the law or the facts, or he disagrees with the punishment. . . . If the
ing the investigation himself or through police officials. prasecutor disagrees he may appeal [to a higher court]. .. .However, in
c. The Defendant. Normally the defendant is not ar- practice, such disagreement is rare." Robinson, supra note 50, at 275.
1'33. StPO 5 410.
rested during the investigation.
104. Langbeim, supra note 60, at 456-57.
(1) Need for an arrest warrant. If a person is ar- 105. For a discussion of the legal system in Italy, see Menyman,
rested, a warrant must be issued by a district judge except The Italian Legal System III: Interpretation in The Role of Judicial Deci-
when the person is caught in Jagrante delicto or when sions and Doctrine in Civil Law and in Mired Jurisdictions (Dainow ed.
there is insufficient time to obtain the warrant and it ap- 1974). See also Vassali, The Reform of the Italian Penal Code, 20.
Wayne L. Rev. 1031 (1974). The Spanish system is adequately dis-
pears that the person will flee or destroy evidence in a case cussed in Murray, A Survey of Criminal Procedure in Spain and Some
involving an offense punishable by death, penal servitude, Comparisons with Criminal Procedures in the United States, 40 Notre
or three or more years of imprisonment. In such a case, a Dame L. Rev. 1 (1 964).
warrant must be obtained within 48 hours from the dis- 106. The following material has been condensed from a publication
entitled Korean Legal System distributed by the Supreme Court of the
99. Eser, supra note 45, at 257. Republic of Korea in 1964 [hereinafter referred to as KLS].