Conditional and Unconditional Legal Fiction in Labor Law of Ukraine

Abstract

Problem setting. The classification allows to cover the manifestation of legal fictions in the system of labor law, to establish not only the place of norms generated by it, but also the relationship that exists between them, to reveal their internal regularity. In this connection, it is proposed to characterize certain types of classification of legal fiction.
Analysis of recent researches and publications. The issue of classification of legal fictions paid attention to such scholars as Tanimov A. V., Smirnov D. A., Kursova O. A., Sliusar A. M. Meanwhile, the division of legal fictions for conditional and unconditional criterion of the occurrence of certain legal facts in the science of labor law has not been investigated.
Target of research is to study a separate criterion for the classification of labor law norms which created with using of legal fiction, to identify the features for the subsequent consideration of this material in the process of creating legal fictions.
Article’s main body. The most controversial aspect in the framework of the doctrine of legal fictions in employment law is the question of the conditionality or contradiction of a legal fiction. Conventionality, which becomes the basis for the construction of the rule of law using legal fiction is that it is assumed conscious recognition of non-existent in reality or denial of existing. This conditionality is used at the stage of law-making, while at the stage of law-enforcement the conditionality of fiction can be manifested only in the presentation of normative material. Based on this, formed the criterion of differentiation of legal fictions on the results of the offensive legal fiction stands out conditional and unconditional legal fictions. This is a legal requirement that may provide for either the immediate occurrence of a certain fact or its occurrence in the event of the Commission or occurrence of certain events. The current labour code of Ukraine contains examples of both conditional and unconditional legal fictions. Meanwhile, the identification of conditional fictions is more accessible, since often the legislator in conditional legal fictions uses the words “is considered”,” if “ etc.
Conclusions and prospects for the development. The expediency of the division of legal fictions according to the criterion of the condition of the occurrence of a certain legal fact will allow to focus more on technical and legal aspects, to study in detail the form of different legal requirements, their functional role and place in the structure of the normative act, which becomes extremely important in the framework of the need to reform the labor legislation.