Offense
The factual state , including factuality , given or factuality , is a fundamental concept in philosophy and jurisprudence . It is specified in a special way:
- in law as a legal term :
- as a concrete life issue ( fact ); the term explains itself as " inventory Con- sumption" a fact in the broadest sense, that all the circumstances of human activity,
- in norm theory as part of a (mostly abstract) legal norm ,
- in procedural law as part of a first-instance judgment that reflects the state of affairs and the dispute .
- in philosophy:
- as "factuality in its givenness", in its unnecessary becoming.
- in Martin Heidegger's reference to the “factuality of Dasein ” that was thrown into its existence as a historical. Heidegger is referring here to the fact that man as a cultural being is determined by his cultural history in ways of thinking, feeling and perceiving. In the historical process, however, these have grown accidentally and not necessarily as they are now actually given.
In a broader sense, the term is also used for facts that cannot be traced back to individual acts (e.g. as a social offense in the case of Émile Durkheim ).
Facts in law
Norm theory
The offense is the totality of all actual requirements of the law for a legal consequence ; it thus names the abstract features that underlie an act in the legal sense. It is subdivided into individual elements .
A distinction is made between written and unwritten criteria. The factual features written by the legislature in the respective legal norm are supplemented in a few cases by the prevailing opinion in jurisprudence , jurisprudential literature or teaching (e.g. to differentiate from otherwise pointless norms).
Standard facts with elements of fault or blameworthiness , in particular offenses included objective and subjective constituent elements, which are also in their entirety objective facts ( latin actus reus ) and subjective elements (Latin mens rea calls). Whoever fulfills them acts according to the facts .
A distinction can also be made between descriptive (descriptive) and normative (requiring a value judgment) elements of the offense: While the legislature uses the attribute " business premises " ( Section 123 StGB ) to describe only something that is fully understood in the general perception of the facts, the attribute property ( Section 823 (1) BGB ) is only meaningful because the legislature itself created and specified it.
The counterpart to the factual requirements are the legal consequences ( legal consequence ). The general legal principle is: Da mihi factum, dabo tibi ius. 'Give me the facts , then I will give you the right', meaning: The right can be deduced from the facts ; see also subsumption .
Criminal law
In criminal law there is a differentiation and the offense is divided into an objective and a subjective part.
Objective elements of the offense describe the manifestations of the realization of the offense that are perceptible to the outside world, i.e. the circumstances that determine the external appearance of the offense, e.g. B. the person of the perpetrator , the object of the act (such as the object of the theft, "foreign, movable property", § 242 StGB) or the objective imputability .
The subjective state of affairs determines the internal circumstances that have to be added to the realization of the objective state of affairs. These features only exist in the person of the perpetrator (for example, intent or intent to gain enrichment in the case of fraud , Section 263 StGB). The attitude of the perpetrator or the person acting under civil law must be checked on the basis of intellectual and voluntary elements. For fault, for example, the degree of knowledge and willingness in the case of a necessary intent and the degree of recognizability and avoidability for sufficient negligence must be determined and classified on dogmatically developed gradual scales. One characteristic of the subjective fact is at least the intention with regard to the objective fact. If more is demanded in the subjective offense than must be fulfilled in the objective offense, one speaks of successful-cropped offenses .
The concept of a criminal offense is ambiguous. On the one hand, it is used to name only the objective and subjective features (offense in the narrower sense), on the other hand, the criminal offense is already understood as the so-called injustice (i.e. actually the injustice offense), which includes the offense in the narrower sense and the illegality . The broader view sees the term synonymous with the term criminal offense. In addition to the factual situation in the narrower sense, the term would also include illegality and guilt .
Procedural law
In the case of a judgment in the sense of the certificate drawn up by the court, the facts of the case or factual report designate the concrete facts and circumstances determined in the proceedings and the events in the negotiation itself. The facts of the case thus reflect the basis on which the judgment is based. The facts of a judgment have the quality of a public document according to § 415 ZPO .
In the civil judgment and the administrative court judgment the facts contains the statement of facts the parties , the applications and the process history (z. B. levied by the court evidence and the process sequence), see. Section 313 ZPO. In the civil judgment it is usually divided into an introductory sentence that answers the cardinal questions to the case ( who wants what from whom from what ) in this order, into the undisputed party submissions, the disputed plaintiff submissions, the party motions, the defendant's defense and, lastly, the history of the case .
The judge identifies the individual elements of the offense stylistically using the following modes and tenses :
| Present | Past tense / past tense | Perfect | |
|---|---|---|---|
| indicative | Opening sentence
Requests |
undisputed facts | Process history |
| conjunctive | Legal views | disputed allegations of fact |
The facts provide evidence of the oral submission of the party. This evidence can only be invalidated by the minutes of the meeting § 314 ZPO. If the offense contains errors, an application can be made to correct the offense in accordance with Section 320 ZPO. Obvious arithmetic errors or typographical errors and similar inaccuracies can also be corrected ex officio by the court , Section 319 ZPO.
In criminal proceedings, the established facts are usually referred to as "findings".
See also
literature
- Claus Roxin : Criminal Law. General part. (Part 1). 3. Edition. Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 223-286.
