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§3. The Legal presumption and adjacent legal categories

Scientific comparison of legal categories is always connected with demonstration of their essential signs that promotes deeper studying of possibilities of their use in legal regulation. Most valuably thus comparison of concepts, not only interconnected, but homogeneous, adjacent, similar against each other.

As maloizuchennost to the legal presumption frequently leads to substitution by its other legal categories, such analysis sees necessary and pertinent. Because of basic heterogeneity we do not consider a parity of the legal presumption with the version, a hypothesis, the indirect demonstration, etc. In the attention centre there were those legal concepts, otgranichenie which from the legal presumption frequently causes difficulties and, in our opinion, represents the practical importance. To such, first of all, it is necessary to carry a legal principle and prejuditsiju.

The legal presumption and legal principle. The problem of a parity of categories "legal presumption" and "legal principle" in a modern science is not studied completely not. The analysis of the legal literature allows to approve, that most often the legal presumption identify with a principle, unreasonably allocating with last its maintenance. So, for example, V.I.Kaminskaja specifies, that «the presumption of the validity of the adjudication … turns to a justice principle» [141]. M.S.Strogovich notices, that «a presumption of knowledge of the law, a presumption of the validity of the adjudication which has entered validity or the decision and the presumption of innocence … it to a certain extent the general principles, general principles of legal activity (at least, a presumption of knowledge of the law and the presumption of innocence)» [142]. Century To. Babayev suggests to allocate «presumptions as means, receptions of legal technics» and «obshchepravovye presumptions (operating in all branches of law), which steels with right principles» [143] etc.

Really, some characteristics of a legal principle are similar to legal presumption characteristics. So, «the principle is theoretical generalisation of the most typical that establishes and expresses law …» [144]. Both categories concern standard sphere. Almost any principle supposes those or others (sometimes considerable) exceptions [145]. All it, and also globalnost some presumptions, comparable with the importance obshchepravovyh principles, scientific complexity of both concepts and their direct interrelation do considered categories rather similar.

In the domestic legal literature a principle as the legal category is used often enough. In the attention centre usually there is a law in force principle as which criteria specify such as its basic obshcheotraslevoj the character, concerning all spheres regulated by given branch, and also fixedness in rules of law [146]. Such principles owing to their accurate formal definiteness do not cause any mess. However sometimes in the legal literature principles which in operating rules of law are not fixed are allocated, but «exist or in a role of an element of sense of justice, or find legislative fastening only during some periods of development of a new legal superstructure, or appear in legal activity as rather original though also unwritten, however immutable starting positions which at times are called as" legal axioms »» [147], or follow from sense of rules of law.

By similar consideration, the conclusion about mass character of a principle [148] and possibilities of absence of its formal fixedness is inevitable. Otgranichenie such categories from legal presumptions demands serious scientific consideration.

First of all, a principle and a presumption – the phenomena different by the nature. The legal presumption – the legal obligation (mandatory provision). A principle (an armour. principium ‑ a basis, the beginning) ‑ a starting position of any theory, the doctrine etc., supervising idea … [149]. Norms-principles concern specialised rules of law. «Unlike reguljativnyh and guarding norms they have additional character as do not comprise certain rules of behaviour. At a regulation of public relations these norms are as though connected to reguljativnym and to guarding norms, forming with them a uniform regulator» [150]. The presumption cannot be neither an independent principle, nor its maintenance as it represents not supervising idea, and formally certain legal obligation.

Rather interesting in this plan the word-combination «a presumption principle» is represented. Its admissibility initially raises serious doubts as a phrase «the duty principle» looks rather and rather foggy.

More often it is a question of the presumption of innocence in criminal trial. The majority of domestic authors usually analyze the presumption of innocence either as a principle, or as a presumption, not putting a question on compatibility of the given terms. The principle of the presumption of innocence is traditionally allocated with the capacious and diverse maintenance. However the presumption of innocence, no less than any other legal presumption, ‑ only concrete norm with quite tangible borders of the influence. In itself it is not capable to attract and thirds of all legal consequences which to it can be attributed.

Now the considered category occupies one of the central places in structure of criminal trial of Russia. Anyhow in conformity with the given presumption all its institutes are resulted. As a result it appears rather difficult to separate the presumption of innocence from consequences which connect with it. Not casually some scientists even talk about institute of the presumption of innocence [151]. As a matter of fact this compact enough term (a principle of the presumption of innocence) covers today variety corrected the criminal trial, anyhow connected with the presumption of innocence. In our opinion, the term «a principle of the presumption of innocence», undoubtedly, has won the right to existence though is the conditional name of a collective category.

The conclusion corresponding to a presumption, in a concrete situation can be true or false for this reason we speak about possibility of its refutation. Unlike the legal presumption the principle does not suppose possibility of the refutation in connection with neistinnostju in a concrete case. The sign of the validity poorly characterises a principle. Bolshee such signs as validity have value, the expediency, etc. the Admissibility of an exception of a concrete principle is shown as consequence of collisions between separate principles (for example, deviation from a principle of publicity during breaking case with a view of maintenance of judicial independence) [152].

Considered categories differ on sphere of the activity. Representing the duty fixed in the rule of law, the legal presumption operates, first of all, in the conditions of real legal relation. The sphere of action of a legal principle is much wider. It affects, on the one hand, concrete legal relation, playing «a role of the reflector shining a way of construction of statutes in cases when those or other blanks in legal regulation» [153], with another ‑ on law-making process are found out, giving to its results integrity, etc.

Negative consequences of a scientific identification of considered concepts are expressed in occurrence of unjustified expectations. Such lzheprezumptsija will act as a principle, having absolutely unreasonable name. Such lzheprintsip will not carry out those problems which decision with it connect. The presumption of potential ecological danger of any planned economic and other activity (Federal act item 3 on November, 23rd, 1995 «is indicative in this respect named the federal act as a principle of ecological examination About ecological examination ») [154]. It is possible to assume, that the plan of the legislator has been directed on distribution of the onus of proving. However the given norm does not solve such problem. Moreover, the formulation the legislator of a similar principle pushes to thought on necessity of some bias in the course of carrying out of ecological examination, that directly contradicts other principle – to a principle of objectivity [155]. Certainly, considered presumption resolves a situation of an absence of proof (any planned economic and other activity admits potentially ecologically dangerous if and while other is not proved), and it it was already mentioned in the literature [156], however, hardly it is a question of an examination principle. More likely, this rule used already after expert research in cases when ecological danger or safety of investigated activity has not been authentically established. Such presumption followed fix separate article of the law.

Substitutions of considered categories take place and in the theory. For example, S.E.Kuharenok, opening the maintenance allocated with it «presumptions of trust of the founder at institute of confidential management of property», specifies, that «on the basis of developed throughout many centuries there is enough wide experience of relations of the trustee and confidential managing director the general conclusion about respectableness of the last» [157] becomes. It is known, that the presumption receives the name on prezjumiruemomu to the fact. The presumption of respectableness of the corresponding subject Here is available. Moreover, the in itself presumption of trust would mean, that the proprietor of property is supposed trusting to the confidential managing director while other is not established. It is obvious, that the author's plan covered absolutely other. Offering the given presumption, S.E.Kuharenok, probably, recognised that thanking its action corresponding subjects will trust the confidential managing director. However the presumption is not capable to oblige the person to trust someone, no less than to make something else, except how to recognise prezjumiruemyj the fact. Trust in this case – supervising idea of behaviour of the subject which, according to the author of idea, should underlie legal relation. So, it is possible to speak about two interconnected, but various categories – about a presumption of respectableness confidential operating property and a trust principle confidential operating property. Situations and with a presumption according to which «from the several interpretation, important authentic, the last should be selected on edition time» [158], and with a presumption «trust to the employee of militia» [159] are similar, etc. the Maintenance of the given categories is much closer to a principle, rather than to a presumption.

Thus, a legal principle and the legal presumption – the phenomena, various under the form and the maintenance. If the first ‑ supervising idea, the second ‑ the legal obligation, a rule resolving a situation of uncertainty. Their differentiation has both scientific, and direct practical value, however, complexity of interrelation of the given phenomena demands additional scientific researches.

The legal presumption and prejuditsija. Prejuditsija (an armour. praejudicio ‑ the decision) is not reception of legal technics. At the same time communication of the specified categories is so natural, that against a weak level of scrutiny prejuditsii demands separate consideration [160].

In process pravoprimenitelnoj activity competent bodies and officials can face that on any legal moments, significant for the case in point, decisions pravoprimenitelnyh bodies have already taken place. Under the general rule, the facts established by such decisions, can be used further others pravoprimeniteljami without special proving. The rule underlying the given phenomenon, is provided with compulsory force of the legal presumption and communicates a science with prejuditsiej. Thus it is necessary to discriminate prejuditsiju and precedent. No less than the standard legal act, precedent represents the independent form of the source of law, therefore its applicability and effectiveness in concrete legal system are connected with perfect other mechanism.

The question on concept prejuditsii repeatedly became a subject of scientific researches [161]. However, opinions of scientists essentially disperse even concerning the essence prejuditsii. So, V.K.Babayev sees in prejuditsijah «the adjudication which has entered validity or the decision, or the administrative act» (it is allocated by us – N.TS.) [162]. In opinion U.M.K. JUsubovoj, a being prejuditsii are «established in earlier taken out decision jurisdiktsionnogo circumstance body» [163]. O.V.Levchenko approves, that prejuditsija – «a legal rule according to which the sentence (decision) which has entered validity of one court (judges) is obligatory for another that is why re-examination same is excluded has put in whole or parts» [164]. The approach to the given question of representatives of criminal law is connected, first of all, with there is taking place problem of structures of crimes with administrative prejuditsiej. So, C.F.Mustafaev considers administrative prejuditsiju as «giving (it is allocated by us – N.TS.) criminally-rule of law to the fact of the lawful and proved application of the official penalty for offence of value of necessary condition precedent of a recognition made after that act same or similar on the objective party by a crime» [165].

In our opinion in the permission of a problem of a parity of considered categories the conventional rule sees key, according to which «prejuditsija is presumption display (it is allocated by us – N.TS.) The validity of a sentence (decision) of court »[166] (frequently specify a presumption of the validity of a sentence (the decision) the court which has entered validity [167]). The given rule, in our opinion, demands certain specification. Prejuditsiju it is not necessary to connect exclusively with jurisdiktsionnoj court activity. Pre-judicial value can possess and application certificates to the person before measures of administrative, disciplinary and other influence [168]. It is known, that« the certificate of any authority published lawfully and within the competence of this body, is obligatory for all persons and establishments whom it concerns »[169]. The lawful decision which has been taken out by any competent body is obvious, that, should have appropriate authority. Therefore prejuditsialno the circumstances established pravoprimenitelnym by the decision not only vessels, but also other competent bodies and officials can be the significant. From here, probably, it is more expedient to say that prejuditsija – display more the general legal presumption ‑ presumptions of legality of the legal act.

Communication with the legal presumption predetermines legal signs prejuditsii. Contrary to opinion U.M.K. JUsubovoj, connecting prejuditsiju with the corresponding right of competent body [170], the decisions having pre-judicial value, are obligatory for another jurisdiktsionnogo body. The given circumstances do not come under to research, are accepted without proofs, and such position does not contradict an objective truth principle in the right [171]. Refusal of their recognition and use is possible, but is not any, and in a remedial order as it is demanded by legal nature of the legal presumption. The return conceals in itself serious threats, for example, danger of an arbitrariness pravoprimenitelja at use of such qualifying sign, as frequency, etc.

Thus, considered categories are very close, interconnected, but are not identical. As prejuditsija – display of the legal presumption of legality of the legal act, it cannot be considered neither as any certificate, nor as any circumstances. Prejuditsija it can not be identified with a duty, with necessity [172] as distinction between the legal presumption and its display in this case is simply lost. The approach severing considered categories looks unreasonable also. So, T.A.Liluashvili, noticing, that prejuditsialno established facts do not come under to proving, approves, that prezjumiruemye the facts cannot be excluded from the ultimate fact [173].

Prejuditsija it is possible only thanks to a binding force of the corresponding legal presumption. As the legal presumption of legality of the legal act obliges to recognise the legal act lawful while other will not be established in a statutory order, its display and, accordingly, the maintenance prejuditsii defensible to consider the phenomenon of unsubstantiated acceptance jurisdiktsionnym as body of the conclusions made within the limits of the previous trials.

The legal presumption – independent reception of regulation of public relations. Prejuditsija – one of displays of one of legal presumptions. Actually, making of it definition, we characterise one of aspects of action of the legal presumption of legality of the legal act. Owing to heterogeneity of the considered phenomena, their differentiation has in bolshej degrees the scientific value expressed, first of all, in the additional argument of the serious importance of the legal presumption. The characteristic of their interrelation has quite real sense. In the legal literature it was specified in the difficulties connected with a situation of uncertainty concerning use prejuditsy in administrative process [174]. Ability prejuditsy to exclude possibility of removal inconsistent jurisdiktsionnyh the decisions based on a various estimation of same legally significant facts, their important the-legal effect reflected in qualification of act, punishment is material, etc. [175], do them in the given sphere necessary and significant. Disclosing of interrelation of the legal presumption and prejuditsii allows to define legal properties of last that is capable to order essentially pravoprimenitelnuju practice.

Thus, the legal presumption – an independent category. Its identification with such legal concepts as a legal principle and prejuditsija, despite their close interrelation, neither theoretically, nor practically it is not defensible. Comparison of the legal presumption with relatives legal categories shows it its complexity and many-sided nature.

Distinctions between the considered categories are dictated by features of the nature of the legal presumption.

The legal presumption – is standard fixed reception of regulation of public relations. It distinguishes it from prejuditsii which acts as display of the legal presumption of legality of the legal act. Prejuditsija it is possible only thanks to a binding force of the corresponding legal presumption. As the legal presumption of legality of the legal act obliges to recognise the legal act lawful while other will not be established in a statutory order, its display and, accordingly, the maintenance prejuditsii, it is necessary to consider the phenomenon of unsubstantiated acceptance jurisdiktsionnym as body of the conclusions made within the limits of the previous trials.

In the course of legal regulation the legal presumption represents itself as the legal obligation (mandatory provision). Norms-principles concern specialised rules of law. The unique maintenance of the legal presumption is the duty to recognise prezjumiruemyj the fact till the moment of its possible refutation. The considered category does not contain supervising idea, therefore cannot act neither as an independent principle, nor as its maintenance.

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A source: Tsukanov Nikolay Nikolaevich. Legal presumptions in the administrative Militia activity. The dissertation on competition of the scientist Degrees of the master of laws. Omsk ‑ 2001. 2001

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More on topic §3. The Legal presumption and adjacent legal categories:

  1. the Chapter I. The PRESUMPTION And FICTION AS LEGAL CATEGORIES
  2. § 1.2. Otgranichenie concrete definitions of rules of law from other adjacent legal categories
  3. private-precautionary function of criminally-executive means and its difference from adjacent legal categories [27]
  4. § 1. History of development of legal categories "presumption" and "fiction"
  5. § 2. Essence of legal categories "presumption" and "fiction"
  6. § 1. Essence, concept, the basic signs, kinds and legal forms of expression of estimated categories in the criminally-executive right. Estimated categories, atypical legal instructions and blanketnye norms
  7. §4.1. Protection of rights and adjacent categories.
  8. §2. Concept, signs, and legal presumption kinds
  9. § 2.4 Definition of concept of the legal presumption in the judicial administrative law of procedure
  10. the Nationality and the personal statute as the categories characterising the state accessory and the legal personality of the legal person
  11. § 4. A new direction of international legal protection of the adjacent rights: legal problems of an announcement in a network the Internet
  12. Chapter 2. CONCEPT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES And ITS PARITY WITH ADJACENT CATEGORIES
  13. § 1. Insolvency of the employer: concept, otgranichenie from adjacent categories in a context of protection of laws of master and servant of workers
  14. Chapter 1. The Legal presumption asa regulator of jural relations under administrative law. Concept, kinds, a role and value
  15. §2. Parities of know-how with adjacent grazhdansko - legal concepts