Legal presumptions are the connecting links in regulatory materials. Without them, the legal system does not function properly. The law does not give them their own term. But science provides many concepts and puts forward dynamic and static methods in their consideration.
Analysis of approaches
The first method indicated interprets the presumption as the legal obligation of authorized government agencies and employees to recognize the establishment of a presumed fact. He is very comfortable for processors. But it does not reveal the key characteristics of the presumption.
And many lawyers adhere to a statistical approach in their work. According to it, legal presumption is an assumption, accurately or indirectly fixed in legal standards. On the basis of this, a certain algorithm of actions in public relations is considered standard and does not need to be proved.
The key signs of presumption are also derived from this concept.
Key Features
In total, four are formed. According to them, legal presumption is:
- Always an assumption with varying degrees of probability.
- The legal and technical method involved in the creation of laws and legal practice.
- Factors recorded in legal regulations.
- Relationship with legal factors - circumstances that have legal significance and provoke the corresponding consequences.
Based on the presented characteristics, the only method of constructing presumptions is formed - polar induction. It is implied by generalization using the usual enumeration.
For example, in Europe for a long time there was an opinion that a swan can only have a white color. But when Australia was discovered, it collapsed. Since black swans were discovered on this continent.
A similar picture is in law: there can never be absolute certainty in the truth of a certain assumption. And for him there can always be at least one exception.
Classification
Types of legal presumptions are divided into the following categories:
- Sphere of influence.
- The level of legal force.
- The format of existence.
The first category includes two types of presumptions:
- General legal. Used in all areas of law. These include two presumptions: the first - the authenticity of legal acts, the second - knowledge of laws.
- Industry. Involved only within a specific area of law. An example is the presumption of guilt. It is reflected in the Civil Code (CC).
In the second category, the following types of presumption appear:
- Irrefutable. They are directly or indirectly reflected in regulatory documents. Example - the contract is assigned the status of a reimbursable when other acts are not formed from legal acts and from its essence (as stated in Clause 3, Article No. 423 of the Civil Code).
- Rebuttable. They can be convincing and evidence-based. The former implies that the court is required to prove fact 1. For this, it concludes the existence of fact 2. A party that contradicts this position must prove the opposite.
According to the second, the court makes a decision that fact 2 exists, since fact 1 is proved. The other side, in order to refute this position, needs proof of the existence or non-existence of fact 2. A vivid example is the presumption of innocence. She expresses the version of the innocence of a citizen and obliges the investigation to prove the opposite position.
Also, such presumptions are important here: permission and fact, the former imply that having proved fact 1, the court will consider fact 2 already proven.
Second: the court in making the decision is based on repeated preliminary facts.
The third category contains the following presumptions.
- Actual. Based on logical statements and worldly traditions and experience. For example - the presumption of integrity, obliging each person to observe the order established by society, family, clan and others.
- Legitimate. Directly or indirectly fixed in laws, as legal requirements. Examples: all citizens are required to know the current law and their rights.
About meaning
Legal presumption plays a huge role in law. It is used in cases where other techniques do not work to establish a certain fact.
Due to such uncertainty, it may fail in the legal system. In the worst case, civil circulation will stop.
And most presumptions become the basis in government regulation. They demonstrate how the state treats citizens.
There are many legal presumptions. Some of them were reflected above. But the most important are the following:
- Innocence
- Guilt
- Good faith.
- Paternity.
Presumption of innocence
It is involved in the Criminal Code (Article 14) and the Constitution of the Russian Federation (Article 49). Its basic principle is that the accused is not required to prove his innocence. This is the burden of the prosecutors. They must present strong arguments and evidence that he violated the law. And any doubt about the evidence is in his favor. In totalitarian states, this principle is ignored.
The presumption of innocence is a guarantee of the right of citizens and is designed to create protection for them from the state. But it is not justified on the basis of this principle and should prove guilt to society.
Criminal law contains a clause that assigns the status of an innocent to a defendant in order to establish his guilt in a lawful algorithm.
Presumption of guilt
It is reflected in the Civil Code (Article 1064). This is a general term that assimilates two presumptions of guilt:
- In case of damage to the owner of the source of increased threat (Article 1079 of the Civil Code). These are legal entities and citizens, in the process and as a result of which there is a danger to the environment. These are different energy and chemical enterprises, systems and so on. In case of confirmation of guilt, their owners must compensate for the damage caused if they can not prove the guilt of the victim himself.
- Failure to fulfill obligations (Article 401 of the Civil Code). A citizen who does not fulfill his direct duties or does it negligently, is found guilty and must be responsible for it if he can not do the opposite.
Presumption of good faith
It is reflected in the tax code (Article 108) and the Civil Code (Part 5, Article No. 10). The first criterion concerns an unscrupulous taxpayer. The relevant code does not clearly interpret this definition. But from the designated article, the conclusions follow that:
- A citizen has the status of innocent of a tax crime until proof of his guilt.
- The taxpayer has no obligation to confirm his innocence. The task of the relevant authorities is to prove his guilt.
- All significant doubt in the fault of the citizen is interpreted in his favor.
The second criterion is closely related to the presumption of innocence. And any person involved in legal relations, conscientiously fulfills his obligations to other citizens, until the authorized body proves the opposite.
Paternity Recognition
This term appears in the family code of the Russian Federation (Article 48). It establishes that the husband of his mother is considered the father of the child in the following cases:
- At the birth of a child from persons whose relationship is linked by marriage.
- Within 10 months of the annulment of the marriage.
- A similar period since the death of her husband.
These paragraphs do not apply when there is evidence of other facts.
According to the presumption of paternity, the father of the child is the spouse of his mother. And this principle remains in effect until another person presents weighty arguments. Accordingly, proving his biological paternity.
This question may be raised by the mother of the child. To do this, she needs to submit an application to the registry office at the registration stage of the baby’s birth. Then the establishment of paternity can take place on a voluntary or judicial basis. However, it is important to understand that only certain citizens can refute.
According to the law, the presumption of paternity can be refuted only by the following persons:
- mother of a child
- her husband,
- real father.
An example of such a refutation: a couple intends to register the spouse of the mother of the child as his father. And his real father prevents this and submits the corresponding statement of claim.
Proving
In legal presumption, it is of great importance. Since the court must correctly and timely consider and resolve the case, he needs to fix his circumstances. For this, evidence and formal logic are applied.
And in fact, judicial evidence is the activity of determining the true picture of what happened. It is characterized by such specifics:
- It is implemented by the justice authority.
- Limitation by facts affecting the clarification of the circumstances of a specific and relevant case.
- It passes according to the criteria regulated by law (chap. 6, 15 Code of Civil Procedure).
- Use of funds reflected in the law. These are: a statement of the parties' positions, testimonies, written and material evidence, audio and video materials, and expert opinions.
Presumption and fiction
These are two very similar legal classes. Often, the legislator deliberately confuses them and misleads citizens.
Both of them are legal products and artificial phenomena arising in legal practice.
Presumptions involve probable assumptions that can be refuted.
Fictions are deliberate false provisions that cannot be refuted, since this is pointless.