Per Wikipedia Germany's legal system doesn't have the concept of binding precedent. (And even if it did in no country is the decision of a trial court binding precedent).
It's not that simple either. Common law jurisdictions often use rulings at higher courts in completely different countries (as long as they are also common law jurisdictions) as precedent if it helps come to a suitable judgment.
Courts in a common law jurisdiction (like the UK and US) don't have to try to set a precedent, each ruling tends to set a precedent. That is what makes common law common, the same law is applied everywhere, so any new ruling would be applied everywhere. This is exactly why judges avoid making rulings that would set a new precedent! I hope I haven't oversimplified a complicated subject!
It isn't a common law country, but there is the concept of precedent, and the majority of sentences will actually not override a previous sentence given the same kind of issue.
I was actually talking about this with a lawyer because of a problem I was having, and that's what he told me. You can pretty safely use precedents to guide you on what you want to do. The difference is that laws tend to of course carry less uncertainty than precedents, and you can't get punished if you were following a law (unless it gets changed retroactively). In case of a trial (in my case, at least), you would admit that you haven't followed the law, but cite the precedents and most likely win.
So, precedents are not binding, but in practice they're close to it.
Just a note, precedent has little impact on law outside of countries that don't practice common law. Common law originates from the UK and Germany and France don't practice it, therefore precedence has little to no impact.
There are precedents in civil law too. It's just that judges have less leeway in "creating" law than in the common law systems and thus precedents are not as binding because the law is supposed to be already laid our precisely.
And civil law systems are not all tuned the same way.
In the UK, precedents are set by the decisions of the High Court (civil) or Crown Court (criminal), and by higher courts. Lower courts don't set precendents I believe - IANAL.
Yes, not sure if this is the case but higher courts in civil law systems tend to have some precedent setting powers. It's just more limited than in common law. I'm not sure if this is the case in this ruling in france, but even if it isn't
In a civil law system judges still are aware of previous decisions in similar cases and consistent application of the law is still a principle which exists. The precedent might not be binding but a judge who is in doubt will still uses existing case law and so will appeal courts. They will just always refer to the law as the source of the decision, not the previous cases
This is not the case in common law systems, which the US and UK have. Judges discover the law through principals and precedent. Legislation can override this, however. The US Constitution is a good example.
I believe both the US and UK (as do most western countries?) have 'common law' systems, where jurisprudence / case precedents are heavily relied upon. Whenever there is doubt on the legality of something, that court decision will set the tone for others to follow, and go higher up the justice system as needed.
The main point was that you can't simply blame the law for failing to 'replace judgement'. Most laws rely on some amount of common sense to be interpreted.
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