The concept and classification of legal fictions in the modern legal science
| Autor: | I. V. Borshchevsky, O. D. Grin |
|---|---|
| Rok vydání: | 2022 |
| Zdroj: | Uzhhorod National University Herald. Series: Law. :11-14 |
| ISSN: | 2664-6153 2307-3322 |
| DOI: | 10.24144/2307-3322.2021.67.1 |
| Popis: | The article analyzes the essence of the «legal fiction» category from the position of the traditional approach, according to which it is considered exclusively as a means of legal technology, as well as a way of replenishing gaps in legislation and as a legal fact. The opinion is given of the need to study and distinguish between such concepts: «legal fiction», «fictitious norm», «fictitious action», «fictitious state», as well as the release of legal fiction from negative characteristics, since it has a huge positive potential and as a means of legal technique It plays an exceptionally positive role, performing the function of protecting various interests and the function of procedural economy, contributing to the rapid and proper permission of the case on the merits. The following main signs of legal fiction are allocated: indisputability, deliberate falsity, regulativity, imperativeness (in rare cases, dispositional), intentional deformation of reality.The logical apparatus of dialectic categories is applied to determine the essence of the category “fiction”, which makes it possible to reveal this category from the standpoint of its development and internal content. Owing to the use of such an approach, the formation of a conceptual apparatus becomes possible, which, in turn, contributes to the deepening of legal knowledge, as well as the identification of the right not yet disclosed properties.The position is argued that the study of the role of fiction role in the legal sphere not only acquires particular relevance, but also requires a certain rethinking, clarification and appropriate additions, taking into account changes in the development of public relations and processes that occur in the modern world. It is important to adhere to the general traditions of domestic jurisprudence, but practice dictates new realities, which are due to changes in public and government development, the formation of a new look at the toolkit used in legal life, which is already tested by practice and can be used to improve the effectiveness of the law mechanism, precisely It belongs to legal fiction, which is widely used in the material and procedural industries of Ukrainian law. At the present stage of the development of the legal system, it is not necessary to deny the importance of legal ficiations, they constitute an absolutely indispensable tool of law-making technology and necessary in terms of legislation. |
| Databáze: | OpenAIRE |
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