Origin and development of ideas about the nature of legal fiction in domestic and global jurisprudence

Abstract

The relevance of the article is that the existence of modern world jurisprudence is impossible without the active use of such a technique of legal technique as "legal (or legal) fiction". This is evidenced by numerous regulations and scientific studies in most countries. The use of legal fiction in many areas of law makes it a universal means of overcoming gaps in the law, serves the purpose of correct interpretation of regulations, creates a basis for further development and improvement of existing sources of law in each country separately and in international law. In addition, such a technical and legal technique of "legal fiction" was once widespread in customary and religious law. It is determined that fiction as a means of legal technique is actively used around the world. As we have already mentioned, legal fictions appeared in modern world jurisprudence due to the reception of ancient Roman law, which lasted for many years. With the growing influence of European law, fiction has become more widespread and recognized worldwide as an effective way to overcome the gap between law and the realities of life. Fiction is actively used in international regulations. It is made that fiction is a known method of thinking, which consists in the assumption of an existing known non-existent circumstance, or, conversely, non-existent existing, in solving a problem with the help of a wrong position; and legal fiction in the narrow sense is the same technique, but which is allowed by objective law in certain cases. In turn, the need for its existence is conditioned by the need to: a) protect the recognized just claims of minors (such as foreigners), who by fictitious admission were equal to full Roman citizens and thus could fully assert their rights; b) protection of claims arising from new situations not provided for in previous procedures. In this case, the ceremonial formulas giving the right to sue were modified in relation to new circumstances; c) protection of claims recognized only on the basis of praetorian law and not previously embodied in lawsuits within the framework of traditional legal norms.