Factual instance
A court of fact is a court that decides on a matter by establishing the actual circumstances and not just from a legal point of view. Terms used in the same way are court of fact , trial court or trial judge .
Entrance courts - i.e. the courts that deal with the matter first (first instance) - are always instances of fact. Your job is to establish the facts. The way in which the judicial determination of the facts of the case depends largely on whether the principle of official investigation or the principle of submission applies to the area of law. If the principle of official investigation applies, the court itself (with the participation of those involved in the proceedings) determines the facts that it needs for its decision. If the court has doubts about a fact, it takes evidence. The courts of financial, social and administrative jurisdiction, the criminal courts and the civil courts in matters of voluntary jurisdiction are subject to the principle of official investigation . In civil law disputes, the principle of presentation applies; the court decides without its own investigation on the basis of the submission of the parties to the proceedings. The court will collect evidence - if offered - if the submission of one party is substantially disputed by the other side. On the basis of the established facts, the factual courts then decide from a legal point of view, i.e. determine which legal consequences arise from the established facts.
The appellate instances are partially, but not always, designed as factual instances. Insofar as the rules of procedure against a judgment of the first instance allow the appeal of an appeal, the court of appeal acting as the second instance will also regularly re-examine the actual findings of the first instance court, i.e., if necessary, hear witnesses again, inspect documents themselves or the like. However, there are Here too, restrictions due to recent attempts at reform, in particular with regard to facts presented for the first time in the appeal procedure (cf. Novenrecht ).
On the other hand, the appeal of the appeal only serves a legal review of the judgment under appeal . This legal review seeks to determine whether the proceedings before the lower courts have been properly carried out and whether substantive law has been correctly applied. However, since the appeal court is not a factual instance, there will, with a few exceptions, no more evidence taking. Rather, the judgment of the appellate court is based on the actual occurrence as determined by the factual court, provided that the procedure and thus the way in which the factual court arrived at the findings was not faulty.
