Da mihi factum, dabo tibi ius
Da mihi factum, dabo tibi ius (also: da mihi facta, dabo tibi ius ) is a Roman legal rule . In German it means: Give me the fact (s), I will give you the (resulting) right .
This legal rule is related to:
- iura novit curia (also iura noverit curia ) - dt .: The court knows the law.
- testis non est iudicare - dt .: The witness does not have to judge (he only has to communicate his perceptions).
These Roman legal principles still apply today in German law . In civil proceedings, it is sufficient to present the facts to the court (principle of judicial application of law); Explanations on legal interpretations , the communication of legal views or information on the application of the law are not required (cf. § 138 Code of Civil Procedure ). The court will independently apply ( subsume ) the relevant law to these facts on the basis of the facts presented and established .
Conversely, this rule interferes with the disposition maxim : The parties do not need to disclose circumstances that are not to be assessed and can therefore restrict the matter in the proceedings.
The application of da mihi factum, dabo tibi ius in cases with an international reference becomes problematic , because the judge cannot be expected to know foreign law. The same applies to privately set legal norms (such as house rules ) or to customary law that may only apply regionally . For this reason, Section 293 of the German Code of Civil Procedure makes it possible, as an exception, to collect evidence on legal issues. It is then at the dutiful discretion of the court on what basis the law is to be determined.
In criminal law, this principle applies to criminal charges ( Section 158 of the Code of Criminal Procedure ), but in criminal proceedings the applicable criminal provisions must be specified in the indictment ( Section 200 of the Code of Criminal Procedure). On the other hand, the court is not bound by the presentation ( § 155 StPO).
Despite the principle it is in all court branches common for lawyers in their pleadings make legal submissions to the dispute and explain to the Court how legal considerations to support their requests. Legal talks also usually take place during court appointments, especially in administrative jurisdiction , in which the court discusses the application of the law with the parties. According to a decision by the Hamm Higher Regional Court, the sentence “iura novit curia” only means the relationship between the non-legal natural party and the court, while lawyers according to Section 137 (2), 2nd HS 2nd Alt. ZPO also have to present legal questions. Not substantiated - that is insufficient and inconclusive argumentierter occupied - a lawyer's submissions - can at a point out faulty provisions adopted court decision by Supreme Court jurisprudence even a lawyer liability entail. Nevertheless, there is no binding effect on the court in the cases of recognizably incorrect party or attorney's submissions.
See also
Individual evidence
- ↑ a b Pense, Uwe / Lüdde, Jan Stefan: Methodology of Case Processing in Studies and Exams (Alpmann Schmidt), 3rd edition, Münster 2018, p. 16.
- ↑ OLG Hamm, decision of December 6, 2013 - 9 W 60/13
- ↑ BGH , Az. IX ZR 272/14, October 10, 2015, NJW 2016, 957
