The dissertation is devoted to a complex theoretical and practical legal study of legal fiction and legal presumption, their comparative characteristics as special methods of legal technique, establishing the relationship and ways of interaction in the law enforcement process.
The general conclusion of the study is that the reasonable use of legal presumption and legal fiction as methods of legal technique allows to ensure the necessary degree of stability and orderliness of social relations, to prevent violations of human rights and freedoms.
The initial thesis of the study was to substantiate that the law is a rather complex matter that has its subtleties that require a professional approach, where, however, legal acts are addressed not only to professionals but also to ordinary citizens, so it is necessary to strive to ensure that they were, if possible, clear to all to whom they were addressed. The definitions used by the legislator must be specific and explained in detail so that there are no errors in their application. At the same time, the requirement of accuracy of the normative-legal act is not the only content of linguistic means, which includes the issues of division of concepts into definite and indefinite, evaluative and non-evaluative, etc. The means of structure are the tools that ensure the internal consistency of the content of the legal norm. It is the means of structure, acting as constituent elements of lawmaking, embody the characteristic features of the creation of a legal act designed to adequately and most fully reflect in its content public relations that require legal regulation. They contribute to the achievement of a perfect correspondence between the social reality that is reflected and regulated. The means of structure of law-making include, in particular, legal fictions and legal presumptions.
The periodicity in the history of the origin and development of views on legal fiction and legal presumption is characterized by highlighting both the periods of their adoption and active use in law (Roman law, late XIX century) and periods that deny the possibility of using fictitious and such that based on the assumed categories (mid-nineteenth century, Soviet period). At the present stage of development of law there is an increasing attention of legal science to these atypical legal categories, as well as the increasingly active use of legal fiction and legal presumption in the process of law enforcement.
The statement that the precondition for the emergence of fiction is a state of uncertainty in legal regulation is substantiated. In order to overcome this uncertainty, fiction influences legal regulation in three forms: 1) normative recognition of an existing fact that does not take place in reality, or normative denial of a fact that takes place in reality; 2) normative equation in the meaning of facts or concepts that in reality have different meanings; 3) normative recognition of facts or circumstances that occurred before their actual occurrence or occurrence, as well as normative recognition of existing facts or circumstances that occurred later than the moment of their actual occurrence or occurrence. Thus the obligatory condition of application of fiction is its obviousness.
The concept of legal fiction has been developed, which is proposed to mean a universal method of legal technique used in exceptional cases, both at the stage of lawmaking and at the stage of law enforcement, which consists in recognizing the existing obviously non-existent fact, or vice versa, non-existent fundamental principles of law.
In turn, the presumption is defined as a rule of conduct aimed at standardizing the use of this tool by stakeholders in establishing a fact or disputed fact in the course of law enforcement. The general logical structure of legal norms consists of a condition (or "hypothesis"), mode of action (or "disposition") and consequences (or "sanction"). The presumption has the same structure. For the presumption, the "classical" description of the structure is valid: "hypothesis" refers to the conditions or circumstances to which the rule applies; "Disposition" establishes certain patterns of behavior, primarily include "can", "should" and "should not"; and "sanction" means the legal consequences that occur when the conduct complies with or violates such a rule.
The criteria for determining the nature of legal presumptions are defined: 1) presumptions establish unknown or disputed facts, provide the law enforcer with a convenient way to determine them; 2) the presumption is an indirect establishment of facts based on inferences; direct establishment of unknown facts, which can also be used by the law enforcer, does not fall within the scope of presumptions; 3) presumptions are legal rules for establishing the facts, which distinguishes them from other methods of cognitive activity.
