Framing and Differentiation of Presumptions and Fictions in Labor Law

Abstract

The article discusses presumptions and fictions in labor law as means of legal technique, as well as issues of their framing and differentiation. It has been established that in the branch of law  under consideration(as well as in its other branches) the legislator    uses words which reflect the nature and which are a common form of expression of legal fiction to entrench the presumption in the rule of law, which contributes to the confusion of these means of legal technique. Still the main criterion for distinguishing between presumptions and fictions is not the verbal form of their expression, but the presence or absence of a degree of probability. It has been found out that the possibility of entrenching the legal fiction with the help of both typical words and without them led to the point of view questioning the use of legal fictions in labor law as special means of legal technique. The author proves the inconsistency of this point of view by explaining this possibility by the existence of two ways of entrenching the legal fiction: direct and indirect, and it is established that fictions as means of legal technique in the considered branch of law are a very common phenomenon. It is concluded that for correct identification of the above legal phenomena in legal rules and differentiation between them, one should remember that the presence or absence of presumption or fiction in a specific rule of law   as means of legal technique is not determined by the presence or absence of typical words, but rather by the meaning and legal value of this rule of law which it has according to the discretion of the legislator.