Fiction (law)
In jurisprudence, fiction refers to the arrangement of the law to treat factual or legal circumstances as given, even though they do not actually exist. Here fiction can establish the exact opposite of the actual circumstances as legally binding. A fiction can therefore also not be refuted or invalidated in the process, since by definition it deviates from the actual facts. The word “applies” in legal texts is an indication of the existence of a fiction, but it can also be hidden in legal definitions .
Examples
A classic example of a fiction is the regulation of the inheritance of the nasciturus in § 1923 BGB. According to paragraph 1 of the regulation, inheritance can only be given to someone who is in turn living at the time of the inheritance - i.e. not someone who has already died or is not yet born. Deviating from this, however, paragraph 2 stipulates: "Anyone who was not yet alive at the time of the inheritance but was already conceived is considered to be born before the inheritance." Here, a legal consequence is added to the facts that are actually present, which corresponds to an untrue facts.
As in this case, legal fictions are often mere questions of control engineering. It would simply be more awkward to formulate something like this: "Deviating from paragraph 1, someone who is conceived at the time of the inheritance but not yet born is also hereditary, but only if he is later actually born alive." Such fictions are equated between real and fictitious facts because the application of the legal consequences of the fictitious facts also appears appropriate for the real facts (or independently of them). The factual or personal scope of fiction is therefore to be determined through interpretation, if it is not expressly regulated. For example, outside of inheritance law, the real date of birth applies, not the fictitious one. Thereupon z. B. the birth certificate issued (for the more far-reaching fiction of adoption see below).
Another example of a fiction § 105a sentence 1 BGB: "Will do a full-year business incompetents a business that can be achieved with low-value means of daily life, which closed by him Contract shall apply [...] to be effective as soon as service and consideration causes . “ An incapacitated person cannot actually conclude a valid contract (cf. § 104 , § 105 BGB). However, in order to legally enable an adult mentally handicapped person (= person of legal age) to buy bread rolls or rent a bike for a tour of the island (= daily business that can be carried out with little money, i.e. low-value means), the regulation provides the fiction that the contract is effective as soon as it has been completely fulfilled by both sides.
One of the most common examples of legal fiction is adoption as a child. As soon as the adoption is pronounced, the relationship to one or both birth parents expires, while the adoptive parents are now regarded as birth parents, which is confirmed by the issuance of a new birth certificate. Since the legal act is of course unable to change the biological relationship, one speaks in this context of legal fiction.
Due to a question about the relevance of a fiction from the Allied Right of Restitution for today's law, the Federal Administrative Court approved the revision of a judgment in August 2016 because of its fundamental importance.
History of origin
The institute of legal fiction comes from Roman law . Fiction requires a high degree of abstraction (a dead person is treated as alive, a living person as dead) and therefore represents a significant technical achievement.
It is assumed that fiction, like many legal institutions , arose from the special form of Roman religiosity . In the case of sacrifices or prophecies , it was not the religious feelings of those involved that mattered, but the external form. Even minor deceptions or acting were not frowned upon if and because those involved (including the revered deities) knew about it: The obvious deception was basically not at all.
This thought that reality could be ignored as long as everyone knew about it, is said to have contributed to the emergence of fiction as a legal institution. There, too, reality is not distorted, but ignored because it is of no significance for the question regulated by law.
criticism
Legal fictions are attacked from different sides. Concrete legal thought saw them as an essential cause for the (alleged) alienation or abstraction of law. Here the mere control-technical character of many fictions is misunderstood. The alienation of legal laypeople about fiction - a popular example of an allegedly existing regulation on confectionery: "Even Easter bunnies are Santa Clauses in the sense of this law" - is not justified: It would be simply nonsense to pass a new law for chocolate Easter bunnies if it was just already existing regulations can be applied accordingly.
The following example is similar: In Germany, the last sentence of Section 179 of the Code of Civil Procedure contains the wording “ If the document is refused to accept, the document is deemed to have been served.” This is a contradiction for laypeople , and some of those affected will not want to see this either (apart from the fact that common served should already imply a read and understood ).
Strict positivists suspect the figure of thought of fiction because it can only be described if one distinguishes between the requirements of legal consequences and their justification.
Demarcation
Fictions must be distinguished from assumptions . In particular, there is no fiction if something is to be regarded as binding, which even possibly does not correspond to the actual circumstances ( Latin Fictio cessat, ubi veritas locum habere potest , `` A fiction is ruled out where the truth can take hold ''). Rather, it is an irrefutable legal presumption . An example is Section 1566 (2) BGB : “It is irrefutably presumed that the marriage has failed if the spouses have been separated for three years.” The court is thus relieved of the difficult task of examining a marriage to determine whether she failed. In fact, many marriages after three years of separation will apply, but not necessarily all. The law does not tie in with a contradicting situation, but conversely with a downright typical situation.
However, the irrefutable legal presumption is often - imprecisely - also referred to as fiction. For example, the heir property is wrongly called fiction according to § 857 BGB, because it is quite possible that the heir is in possession of the inherited property at the time of the inheritance. The presumption of disclosure in Section 41 (2) sentence 1 VwVfG is also regularly wrongly called fiction. Because the addressee of the administrative act (VA) is free to prove that he did not receive the VA at all or only after the end of the third day after the letter was posted.
See also
Individual evidence
- ↑ Georg Bitter, Tilman Rauh, Principles of Civil Law Methodology - Key to Successful Case Processing, JuS 2009, 289, 291
- ↑ Discussed by Karl Larenz in methodology of jurisprudence , Heidelberg 1960. ISBN 3-540-59086-2 , page 168 with reference to the criticism of Josef Esser in the value and meaning of legal fictions: Critical to technology d. Legislation u. to so far. Dogmatics d. Private law , Frankfurt / M. 1940, details in German National Library .
- ↑ Tobias Fröschle: Introduction to the methodology of law and case processing. Accessed January 7, 2016 (script from the University of Siegen).
- ↑ BVerwG, decision of 10 August 2016 - 8 B 9.16 ([ECLI: DE: BVerwG: 2016: 100816B8B9.16.0] )
- ^ Dirk Fabricius : Kriminalwissenschaften. Basics and basic questions . Volume 1: Darwin's assumed inheritance. Evolutionary biology also for non-biologists . LIT, Berlin 2011, ISBN 978-3-643-11327-6 , pp. 118 ( limited preview in Google Book Search - " Santa Claus in the sense of the law is also the Easter Bunny. Not a satire, but a judgment [from the post-war period, from the Supreme Court of the British Zone").
