A Study On Legal Fiction

Legal fiction is an ancient philosophical issue of law, which is less studied bycontemporary scholars. Legal fiction is a kind of false representations which is based onsocial value concerns and legal restrictions. Besides, its paradigm is that two matterswithout formal logical links is set to have the same legal effect. This paper focuses on thebasic questions about legal fiction, i.e. definition, nature, form and value. In addition, thepaper emphasizes on a kind of classification of legal fiction, namely, legislative fiction andjudicial fiction. Legislative fiction is to create rules, while judicial fiction is a way to makeup the loophole in law. On the basis of research results on the issue by domestic andforeign scholars, the core of the paper is to clarify whether China, at the present, can adoptlegislative and judicial fiction, and how to limit the usage so as to make it functionappropriately.