Legal issue

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A legal question raised can be answered with the help of the application of the law , subsumption and interpretation of the legal norms and / or the existing case law through the legal assessment of the facts at hand . The question of fact is a complementary term .


Legal questions arise when legal subjects ( natural persons , legal persons ) have to judge a certain issue ( fact ) legally or judge it differently. Legal questions only arise when there is an act (s). Legal and factual questions are therefore regularly related to one another, because the legal question can only be answered if the factual question has been clarified. The subject of a fact is the question of fact, the subject of a legal provision is the legal question. Legal questions relate to the legal assessment of a situation resulting from the application of the law, subsumption and interpretation, questions of fact, however, are all findings that are made in the course of the gathering and assessment of evidence .

Laws such as the ZPO require a (procedural) separation of legal and factual questions, because what happened (factual question) can be separated from the evaluation of what happened (legal question). The decisive criterion for separating legal and factual questions is the purpose for the appeal on appeal , in which the appeal court only has to examine legal questions. If it detects deficiencies in the clarification of the facts by the lower court, it cannot decide itself, but has to refer the case back . The revision must therefore always be based on a violation of the law at the lower court (e.g. Section 337 (1) of the Code of Criminal Procedure ). Legal questions are therefore revisable (contestable), but factual questions are not. The connection between factual and legal question arises from the fact that the court establishes a fact and then searches for a legal norm within the framework of the subsumption that contains a description of the factual that is appropriate to it. The legal norm found then answers the legal question.

Before undertaking legal acts , all legal subjects must therefore always check whether and, if so, which legal questions could arise and need to be clarified. If someone, for example tainted goods sold , is a question of law whether the goods sold actually spoiled is , is a question of fact. Facts are the existing properties ( product quality ) of the goods. The guaranteed properties and the legal requirements are legal issues. If someone by the failure of a product or a service killed , his body or his health injured or cause damage ( § 1 para. 1 Product Liability Act ), the express warranties are not met. A product, pursuant to § 3 ProdSG an error if it is not the security provides that in all the circumstances, in particular its performance , the use to which reasonably can be expected and the timing , in which it was marketed legitimately can be expected. The legal question of whether spoiled goods may actually be sold must therefore be answered with "no", because this sale would otherwise trigger product liability or liability for material defects on the part of the seller.


Even the Corpus iuris civilis of the Roman emperor Justinian I from the year 534 AD made a distinction between the legal question ( Latin quaestio iuris ) and the question of fact ( Latin quaestio facti ). The philosopher Gottfried Wilhelm Leibniz laid in 1690 great attention to the distinction between a factual issue and a legal issue. Ludwig Höpfner took up these principles in 1803 and linked the legal question to the examination of whether persons under 25 years of age could conclude contracts. The legal philosopher Adolf Merkel described the application of the law by the courts with the example in 1909 that "A told the B, he was a drunkard," which he filed as a decision of the question of fact. In a second step, the relevant legal term is applied to this fact or the subsumption of this factual process under the applicable legal sentence ( Latin ius in thesi ), according to which the expression of the A as a legal question contains the characteristics of the legal term of insult . According to Merkel, this is the basis for the penalty as a legal consequence .

Legal term

The word legal question is an indefinite legal term that occurs frequently in formal law . According to the law to maintain the uniformity of the case law of the highest federal courts (RsprEinhG), the joint senate decides if a supreme court wishes to deviate from the decision of another supreme court or the joint senate on a legal issue ( Section 2 (1) RsprEinhG ). This also applies to the senates of a federal court (BGH: Section 132 (2 ) GVG ) and lower-level courts. The complaint is to be admitted according to § 17a para. 4 GVG if the legal question is of fundamental importance or if the court deviates from the decision of a supreme federal court or the joint senate of the highest federal courts. A legal matter is of fundamental importance if it comes down to a specific legal question that goes beyond the individual case, the clarification of which appears necessary in the interests of unity or the further development of the law or its uniform interpretation and application.

According to a ruling by the Federal Court of Justice (BGH) in January 2016, legal questions include , in addition to clarifying the content of a legal norm, the subsumption of an offense under the law. The question of the appropriate valuation method, for example, is not a legal question, but part of the establishment of facts and is judged according to economic or business valuation theory and practice. On the other hand, it is a legal question whether an evaluation method chosen by the judge or a calculation method chosen within the evaluation method contradicts the legal evaluation objectives.

Procedural law

A legal question needs to be clarified if it affects legal security , legal uniformity or the further development of the law . This is the case if the question is important for reasons of the legal system and also important for the uniform application of the law, the significance of which is not limited to the decision of the specific individual case and if the answer to it gives rise to doubts so that several solutions are justifiable . It is left to the courts to decide how they want to resolve the legal issues that may be decisive for the decision of a legal dispute .

In procedural law , courts must always decide the legal question as to whether or not a specific legal norm applies to a specific case . In the case of a question of fact, the court has to decide whether a certain fact is given or not. The court must always decide legal questions. In the case of questions of fact, if it cannot decide whether the fact is present or not, it can also arrive at a so-called non liquet . In the case of a non liquet, the burden of proof is important in civil proceedings ; the person who had to prove the fact and could not prove it loses the process.

Legal issues in everyday life

Outside of procedural law , legal questions can arise in everyday life for the average, legally uneducated citizen (such as when placing an order ), which can be answered through advice on the existing legal situation with the help of legal advice (e.g. consumer advice , lawyers or notaries ).

Individual evidence

  1. Philip centering Höfer: That- and legal question , 1870, S. 129th
  2. ^ Regina Michalke (ed.) / Ulfrid Neumann : Festschrift for Rainer Hamm on his 65th birthday on February 24, 2008 , 2008, p. 531.
  3. Bernhard Wieczorek / Rolf A. Schütze / Hanns Prütting : Grosskommentar ZPO and auxiliary laws , Volume 7, 2014, § 546 Rn. 8th.
  4. Othmar Jauernig : Civil Procedure Law , 27th edition, Munich 2002, ISBN 3-406-48695-9 . Section 74 VII 1 = p. 304f.
  5. Werner Beulke: Criminal Procedure Law , 2016, p. 387.
  6. Hans-Martin Pawlowski : Methodology for Jurists , 1999, p. 139.
  7. Regina Michalke (ed.) / Ulfrid Neumann: Festschrift for Rainer Hamm on his 65th birthday on February 24, 2008 , 2008, p. 529.
  8. ^ Wilhelm Henke: Law and State: Fundamentals of Jurisprudence , 1988, p. 511.
  9. Gottfried Wilhelm Leibniz: Elements of Natural Law , IV, 1690, p. 221 f.
  10. Ludwig Julius Friedrich Höpfner: Theoretical-practical Commentar on the Heineccian institutions according to their latest edition , 1803, p. 39 f.
  11. ^ Adolf Merkel: Legal Encyclopedia , 1909, p. 148.
  12. ^ Federal Constitutional Court, decision of the Second Senate of December 8, 2009, 2 BvR 758/07, Rn. (1-100) BVerfGE 125, 104 <140>.
  13. BGH, decision of January 12, 2016, Az. II ZB 25/14, full text
  14. ^ BGH, decision of September 29, 2015, Az. II ZB 23/14, full text .
  15. Bernhard Schwarz / Armin Pahlke (eds.): AO / FGO , § 115 FGO , Rn. 19th