In jurisprudence there are many complex concepts to which lawmakers do not give a clear answer. The solution has to be sought in the scientific field. Three important legal categories will be analyzed in our article: legal fiction, presumption and fact. All these phenomena are closely interconnected. In addition, they are of particular importance for the right to exercise and lawmaking.
Legal fact
To begin with, you should analyze the simplest concept in jurisprudence: a legal fact. This is a specific situation in life, a circumstance or condition with which a legal norm is connected. Legal fact generates, changes or eliminates the legal relationship.
The facts in law are divided into six types. They are generative, altering, ceasing, confirming, restoring or inhibiting. For each species, you can find your own example. The acts of civil status drawn up in the registry offices can fit into any of these groups. This, for example, evidence of marriage, divorce, birth, death, etc.
Facts are divided into events and actions. An event is a phenomenon of reality. It does not depend on human will. Action is circumstances from life directly related to human will.
The concept of legal fiction
Most of us know the meaning of the word "fiction." This is an untrue position, an unreal construction, created intentionally. In jurisprudence, fiction is used as a special legal technique that helps to resolve some conflicts. The essence of legal fiction is very simple: a non-existent fact is taken and recognized as existing. Maybe the other way around. In this case, the fiction always remains false.
Legal fiction can be classified on several grounds. As you know, law is substantive and procedural. Legal fictions of substantive law aim to overcome uncertainty. In procedural law, fiction reflects the specifics of the case, overcomes the lack of discipline of the participants in paperwork.
The absence of a criminal record when it is withdrawn or redeemed, the record of the father of an illegitimate child by the name of the mother, the release from liability for a crime committed - all these are common examples of fictions.
The concept of presumption
In jurisprudence, there are many interpretations of the concept of legal presumption. Two basic approaches should be addressed: dynamic and statistical.
In accordance with the dynamic approach, presumption is understood as the legal obligation of state authorities and officials to recognize a certain fact as established.
The second approach interprets the presumption as an assumption, directly or indirectly established in the rule of law. In accordance with it, the existing order of things is recognized as ordinary, requiring no evidence.
Thus, this is a legal method that is similar in concept to legal fiction. Presumption in itself is an assumption with a certain degree of probability. It may entail legal facts.
Types of presumptions
An exception can be found for any assumption. This is the basic rule applicable to the presumption. You cannot be absolutely sure of anything. In addition, social sciences are not accurate. There are many shortcomings and exceptions.
In jurisprudence, there are several ways to share the presumption. There is a division into actual and legal groups. Actual presumptions are not legal.However, they can be taken into account when forming the internal conviction of the law enforcer (judge, lawyer, etc.). Legal presumptions are enshrined in specific legal norms.
The second classification is a division into direct and indirect groups. The direct presumptions are clearly stated: "if a fact takes place, then it is assumed that another fact takes place until the opposite is proved." Indirect presumptions are more difficult to formulate: it is necessary to subject the norm to a logical or grammatical interpretation.
The simplest example of a presumption is known to all: this is the presumption of innocence. Until a court has proved guilt, a person is not considered guilty.
Correlation of concepts
Legal presumptions and fictions are in many ways similar. However, they should not be mixed. Often you can observe the merger of "irrefutable" presumptions and fictions into one category. This is an extremely rash action.
Of course, both phenomena have much in common. These are the fruits of legal thinking, formed artificially in the process of standard-setting. However, presumptions are assumptions that can be refuted at any time. Fictions are initially false. The theory of legal fictions is precisely based on two postulates: imperativeness and falsity. In turn, presumptions can be both imperative and optional.
There is a universal method of distinguishing fictions and presumptions. It is necessary to see the assumption as the basis of the phenomenon. If the assumption is obviously false, then the phenomenon is a fiction. If the assumption is probable, then we have a presumption.