Factual question

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Question of fact (also question of fact or fact ) and question of law form a pair of terms in jurisprudence and legal practice when the law is applied to a certain life situation , which is called the legal syllogism in methodology . The legal question can only be answered if the question of fact has been clarified.

meaning

The question of fact asks about the actual course of events that is to be legally assessed.

The facts on which it is based are determined ex officio , in particular in criminal and administrative jurisdiction ( principle of official investigation ), but presented by the parties in civil proceedings ( principle of disclosure ).

A distinction must be made between internal facts such as the will to be legally bound or the intention , and external facts such as the movable thing , as well as the “ empirical truth” as a direct determination of empirical values ​​and the “ circumstantial evidence ” as mere indirect determinations that infer from one empirical truth to another to let.

Practical use

Questions of fact are accessible to the collection of evidence and, in principle, also require evidence. The litigation knows besides the generally known facts or at least court, in accordance with § 291 ZPO exceptionally no further evidence require as evidence the party hearing , witness statements , expert reports , inspection by the court, as well as certificates .

In the course of ascertaining the facts of the case, the relevant facts and events are reconstructed and a singular hypothesis is formed from this for the individual case to be decided - in contrast to general hypotheses in the natural sciences .

In evidence of circumstantial evidence , a case hypothesis is drafted to which the already known facts can be summarized according to empirical laws [...] If the fact that is directly relevant to the offense "(e.g. the presumed killing act of the alleged perpetrator)" is included as a conditio sine qua non " , ie, cannot be ignored without the factual success in its concrete form disappearing, the fact in question is proven by circumstantial evidence.

The evidence is collected in the factual instances (1st instance and appeal), but not in the revision as a so-called pure legal instance , which is tied to the factual findings of the factual instances.

The required degree of certainty with which the facts in question must be established varies in the individual proceedings.

  1. Only in civil proceedings are there admitted facts that do not require any further proof and are assumed to be true ( § 138 ZPO, § 288 ZPO).
  2. The substantiation ( § 294 ZPO), d. H. the well-founded possibility of the existence, facts require on the one hand in the case of only provisional decisions, e.g. B. when issuing an interim order that is still being examined in detail in main proceedings, on the other hand, in the case of mere preliminary decisions without direct legal disadvantage, e.g. B. when deciding on the existence of the reasons alleged by a witness for his right to refuse to testify.
  3. Incidentally, actual claims require so-called full evidence , i.e. that is, they must be true with a probability bordering on certainty. Of course, there is no final, 100% certainty.

According to the principle of free assessment of evidence, the court has to decide freely according to § 286 ZPO, taking into account the entire content of the negotiations and the result of any evidence taking, whether an actual assertion is to be considered true or not. The reasons must be given in the judgment, which were the guiding principles for the judge's conviction.

According to Section 261 of the Code of Criminal Procedure , the court decides on the result of the taking of evidence in the criminal proceedings based on its own free conviction, drawn from the epitome of the hearing.

In the civil and administrative process, the party that invokes the truth of certain factual allegations also bears the burden of proof, i.e. That is, the non-verifiability is at their expense. In criminal proceedings, however, the fact that incriminating facts cannot be proven works in favor of the accused (“ in dubio pro reo ”).

The legal question then evaluates the established course of events and asks normatively about its legal consequence .

The legal question is answered by applying the legal syllogism by means of interpretation and subsumption . The (possibly interpreted) legal norm forms the major clause and the facts established with the required degree of certainty form the minor clause to be subsumed. As a final sentence (conclusion) it can then be deduced whether the legal consequence sought applies or not.

example

Person A killed person B. The judgmental legal question is: Is person A to be punished for manslaughter or for murder?

The major sentence according to § 211 StGB ( murder ) reads:

(1) The murderer is punished with life imprisonment.
(2) A murderer is
someone who kills a person out of lust for murder, to satisfy the sexual instinct, out of greed or otherwise for low motives, 
insidious or cruel or with means dangerous to the public or to 
make another criminal act possible or to cover up 
.

In order to be able to answer the question of fact, it is necessary to clarify the facts, namely whether person A "murdered" person B. For this, the actions of person A would have to fulfill one of the so-called murder criteria , such as greed .

Greed is understood by jurisprudence and doctrine to mean the ruthless pursuit of wealth growth or ownership at any price.

The judicial evidence confirms the result of the preliminary investigation, namely that person A killed person B in order to appropriate their property, as the relevant facts of the case, the subsumptionable minor premise .

The legal consequence (conclusion) is that person A is to be punished as a murderer with life imprisonment.

See also

literature

Individual evidence

  1. ↑ Reinhold Zippelius : Introduction to legal methodology , 2., neubearb. Edition, Munich 1974.
  2. ↑ Reinhold Zippelius: Legal Methodology , 11th Edition, 2012, § 15 II.
  3. ↑ BGH, judgment of September 2, 1980, Az. 1 StR 434/80, full text = BGHSt 29, 317 ff.