Legal fictions are enshrined in law in the Russian Federation. However, the term itself does not yet have a clear definition. This is one of the main techniques in legal practice, known since ancient times. It has its own characteristics, advantages and disadvantages that must be considered when applying.
What is a legal fiction?
Legal fiction is a special technique used in the creation and application of laws and legal norms. In fact, this is an illusory fact, but which is of great importance in legal practice. It is needed for an adequate perception and interpretation of laws and legal norms, both new and old. Mostly fictions are used in civil and civil procedure legislation, but the scope of their application is not limited to these areas of legal activity.
The use of legal fictions in the legal system has both positive and negative aspects. Not for nothing that many domestic and foreign legal scholars and scholars spoke negatively about this tool.
Even in ancient times, fictions were criticized. So, the prominent philosopher of antiquity Aristotle believed that they mislead citizens. This attitude was due to the fact that legal fiction was used by sophists who abused this technique. As a result, from a powerful technique for establishing the truth, they became a way of deceiving and achieving victory in lawsuits dishonestly.
Signs of fiction
Despite the fact that there is no official definition for fictions, in many dictionaries of legal terms they are given approximately the same definition - fiction, something that does not exist, but used in legal practice to correctly interpret laws and put them into practice. Jurists determine fiction by the following criteria:
- It is formal. It acts as a formal rather than factual evidence in legal practice. For example, the documents indicate one date, and the event occurred at a different time. This happens when there is no way to fix the fact immediately. Either it is impossible to prove the fact, but so that the rights of other citizens are not violated, its existence must be formally determined.
- Unproven. Since this is a non-existent fact, it can neither be proved nor disproved. Fiction exists only in the minds of people or on paper. Often it is supported by reasonable arguments and explanations and does not contradict logic, but it always remains fiction.
- By definition, false. She has no material evidence in the real world. But with its help, the main goal is achieved - an adequate perception of the norm and compliance of the law with the actual state of affairs.
- Exclusivity In legal activity it cannot be completely replaced by any other legal instrument. Since the field of law is a field of abstract concepts. And although legal fiction has become much less, it is impossible to completely exclude them from the system of the same name.
Fiction is valid as long as there is agreement in society on its definite interpretation. That is, as long as it meets the legal traditions and needs of society and does not contradict the norms adopted in it (moral, civil), its use is considered normal and necessary. But if it does not clarify, but confuses, then it is removed or replaced.
Fiction classification
In legal activity, fictions are classified according to the following parameters:
- by fields of law in which they apply - laws, acts, articles of the Constitution;
- by the method of expression: in denying or confirming something expressions, judgments, arguments;
- by the nature of legal situations - fictitious facts or fictitious states.
Such a classification is given in the textbook by O. A. Kursova. And although in other manuals the classification of fictions can be expressed in other legal terms, in fact, they are not much different from the above classification, but can be divided into a larger number of points.
The history of the emergence of legal fictions and their development
For the first time the concept of "legal fiction" appeared in ancient Rome. About how to use them and in what cases, was spelled out in Roman law. However, even before they got their definition, they were used in legal proceedings in ancient Greece.
The reason the Hellenes did not give this instrument a legal form is because, under Greek law, the plaintiff did not have the right to hire a lawyer. He had to defend himself in court. Therefore, jurisprudence was not developed in them, unlike Ancient Rome, where a whole system of law was developed.
Features of the ancient Roman judicial system
In Rome, in a lawsuit, the defendant or the plaintiff could hire a lawyer to act in his place and defend his interests. It is this division of roles that has served to reassess the importance of legal fictitious and recognize the importance of their application in judicial practice. Professional lawyers appeared who specialized in the study of law and customs and used them in their activities.
In the future, legal fictions as a method of legal technology continued to be used in the Middle Ages and later, until the end of the XIX century, when legal scholars began to develop new methods and techniques. Now you can receive and process more actual material. Therefore, the need for widespread use of fictions has disappeared. Today they are used in some areas of civil law and during the trial.
What role does the legal process play?
The legal process is a chain of successive steps from filing an application (initiating a case) to passing a sentence in court. It includes, as basic elements, procedural rules, documents, relevant legal procedures.
In the process of collecting and processing information, as well as in the trial process, various legal techniques and techniques are used, including presumptions and legal fictitious. Moreover, during the trial, all participants use them. Both the lawyer and the prosecutor resort to legal fiction to make the facts clear to the jury and judges.
Use in lawmaking
In lawmaking, legal fiction is one of the main tools. The legislator at the stage of development of the law cannot provide for how this law will work. How it will be interpreted and used. This is especially true of such phenomena in society that happen infrequently or can happen in the uncertain future.
An example of legal fiction in the current legislation is article 45 of the Civil Code of the Russian Federation. It indicates in which cases a citizen can be considered dead. However, the provisions in the article are not based on real facts. Indeed, if a person has been absent from the place of residence for 5 years or more, without providing information about the place of his stay, this does not clearly confirm that he died. The legislator proceeded from the fact that such a situation is possible, which means that it should be regulated so that the rights of other citizens are not violated.
In the same way as Article 46 of the Civil Code of the Russian Federation indicates that a citizen who is recognized dead, but in reality alive, can restore his name and rights, including restoring property, if during this time his heirs manage to enter into the inheritance and dispose of him discretion.
Use in law enforcement
Almost all law enforcement practice of laws, rules, and customs is based on the use of legal fictions. This situation becomes clear when studying the history of law.
For the first time, legal fictions appeared in ancient Greece, but they were widely used in Roman law, from which European law subsequently formed, including in Russia.
The most widespread legal fiction in civil law. People use them without even noticing it. Often this happens when documents are drawn up after the fact, when the event occurred much earlier than indicated in the document. For example, upon receipt of a death certificate.
For obvious reasons, it cannot be issued immediately, since it takes some time to prepare and issue the document. Therefore, the date indicated in the document is a fiction. The same situation is also observed with adoption, with the execution of certain documents, with the recognition of a person as missing.
The difference between presumption and fiction
The presumption differs from the fiction in that the latter is false by definition, while the presumption is just an assumption of the existence of a fact. Its provisions are considered true until the contrary is proved. For example, the presumption of innocence is an assumption that until a citizen’s guilt is proved in court, he is presumed innocent.
The presumption does not have signs of exclusivity and lack of evidence. That is, if a person is guilty of any crime, then until this is proved, he is considered innocent. For the rest, presumption, like legal fiction, are legal techniques that have an abstract form. They help to determine the truth faster and with less effort.
The difference between axiom and fiction
Another technique in legal activity is the legal axiom. The axiom, like fiction, is unproven, but it is based not only on judgments, but also on facts. But unlike fiction, it has no signs of falsity.
The axiom is based on real facts, and they are confirmed by centuries of practice, or by a conclusion drawn from these facts. For example, the axiom "no one can be a judge in his case." The meaning of this statement is that no one will act in the interests of others, to the detriment of their own, including the judge. If you conduct an experiment, then all participants in the process will behave in accordance with this axiom. Therefore, a judge has no right to judge in a case in which he or his family members will have an interest. This is enshrined in law.
The value of legal fiction in modern law
In modern legal practice, legal fictions perform the following functions:
- Protection of the rights of citizens. By filling in the gaps in the legislation, they thereby help not only to simplify the procedure for recognizing a fact, but also to better understand it, and therefore to use it.
- They help to protect the rights of a citizen in the event of extraordinary events.
- Eliminate inconsistencies that arise during the legal process.
- Create a stable and understandable legal regulation.
Changes in society are ongoing. Many laws become obsolete, and the legislator does not have time to replace them in time. And frequent changes in laws often create even more chaos. Legal fiction is a technique used by lawmakers to give laws a clear and modern look, allowing a certain interpretation of these laws in order to establish the truth.
Conclusion
Legal fiction is used by professional lawyers in legal proceedings and legislation from ancient times to the present day. The role of legal fiction in the legal process is great. They help to better understand the laws, save legal resources, provide an opportunity to study and evaluate the actual materials in the hands of a judge, prosecutor, lawyer.
Unfortunately, not all participants in the legal process use legal fiction in good faith. Abusing this technique in legal activity, some participants in the process can confuse the case, mislead the judge and jury. Therefore, legal scholars are ambivalent about the described technique. They criticize the unjustified use of this technique and look for ways to replace it with others.