The main areas are
- the procedural law , the judicial process is concerned, the main division in civil litigation (or Civil Procedure) right, penal (or criminal procedure) right administrative procedural law (note: in this case, management is method rather not synonymous!).
- the administrative procedure law , the non-judicial state procedures ( administrative procedure relates).
The procedural law includes in particular the jurisdiction (competence norms), the manner in which the decision was made, the form of the decision and its notification or effectiveness . It exists in different forms, such as constitutional law , law , statutes or rules of procedure .
For the state organs that is the legislative process of the legislature in the Basic Law and the rules of procedure of the Bundestag and the Bundesrat regulated the administrative procedures of the executive branch in the Administrative Procedure Act and the trial of the judiciary in the individual procedural codes as the Code of Civil Procedure , the Code of Criminal Procedure and the Code of Administrative Procedure .
The procedural law also includes, for example, provisions on elections and voting as well as the out-of-court settlement of disputes in arbitration proceedings or association-internal boards of appeal etc.
Procedural law is systematically part of public law . In legal practice, however, procedural law is assigned to the area of substantive law to whose enforcement it relates. For example, civil procedural law also belongs to substantive civil law.
The procedural law is so-called "coagulated constitutional law", which means that the basic principles of the constitution must be implemented through the individual procedural rules and made applicable to the individual case. The procedural law guarantees the judicial, d. H. Judicially verifiable course of the respective proceedings. Violations of procedural law are always justiciable, but without a complaint do not lead to any claims for the person concerned. The basis of procedural law is the principle of equality ( GG ), the right to a fair hearing ( GG) and the guarantee of legal recourse ( 19.4 GG).
Terms of formal and material law
The substantive law can be described as a total of all schemes that the basic legal relationship between the entities , but also the individual legal subject to State control. Example: If you damage someone else's car, you usually have to pay compensation . This results from various provisions of substantive civil law such as the German Civil Code (BGB). If the perpetrator acts intentionally, there is also a criminal offense .
In contrast, the norms of formal law relate to the enforcement of substantive law. In the example, therefore, to the question of how the injured party can enforce his claim against the injuring party in court proceedings if the latter does not pay voluntarily and how the state may proceed with criminal prosecution .
History of terms
The terms formal and material law are still quite new. They were not minted until the 19th century. Until then, the Roman legal “actio” as a combination of elements of formal (procedural) and material law had opposed a clear separation of the two matters. Only with the overcoming of this so-called “action law thinking” was the way paved for a conceptual separation. After the Second World War , there was a “loss of reputation” in Germany, especially in the term “formal law”. Instead, the terms procedural law / substantive law are often used.
Historical development in the matter
Formal and substantive law has existed in the matter for thousands of years. Even in Roman law there was a decision-making body (the praetor), which was called upon in the event of disputes. A really serving function of the "formal" compared to the material law was not given in Roman law at the beginning. There was no closed (material) legal system that only had to be enforced. On the contrary: the praetor created substantive law by giving the necessary consent to the procedure in certain cases. So the substantive law basically emerged from the process. This later changed. The Roman term “actio” (roughly: complaint ) still carried this peculiarity of material and formal law in itself for a long time and was only finally dissolved in the 19th century to the current division into two areas. The German Civil Code , which came into force on January 1, 1900, is based, among other things, on the concept of entitlement in (1) of the German Civil Code, the image of a clear separation of formal and substantive law.
Similar and related terms
The pair of terms “ formal law ” and “ material law ” denote another, special distinction. "Formal" refers to the creation in the parliamentary legislative process , "material" the quality as a legal norm with external impact. The one as the other can contain substantive and formal legal regulations.
- formal law with substantive content: Civil Code
- Formal law with formal legal content: Code of Civil Procedure
- Substantive law with substantive legal content: municipal statutes
- Substantive law with formal legal content: Election regulations for the election to the works council
As in German law, the terms were formed in French as droit formula and droit matériel and in Italian as diritto formale and diritto materiale . In contrast, in other languages, the more serving function of formal law is emphasized: for example, in Spanish the derecho adjectivo in relation to derecho material or derecho sustancial / sustantivo and in English the adjective law in relation to substantive law .
- List of actiones of Roman private law
- Civil procedural law
- Criminal procedural law
- Administrative procedural law
- Constitutional procedural law
- Heinrich Honsell , Theo Mayer-Maly : Law. An introduction to the law and its basics. Springer, Berlin et al. 2015, ISBN 978-3-662-45682-8 , pp. 240–241 .
- Andreas Kollmann: Conceptual and problem history of the relationship between formal and material law (= writings on legal history. Issue 68). Duncker & Humblot, Berlin 1996, ISBN 3-428-08977-4 (Also: Freiburg (Breisgau), University, dissertation, 1993/1994).
- Dieter Leipold : BGB I. Introduction and general part. A textbook with cases and control questions. 5th, revised edition. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149787-2 , p. 11 .