The Legitimacy Basis On Criminal Legal Fiction

Law is the connection between norms and facts; not only it has the reality of itsown side, but also has a fictional side. Legal fiction is a typical manifestation of thefictional side which is such a legislative method that is based on practicalconsiderations and value seeking, and equating of different facts, and then gives thesame legal consequences the same legal effect.After a long time change, the scope of legal fiction expanded from an initial fieldof justice to the legislative field, and now the frequent application of fiction on thelegislation in the world means the legal fiction era not only failed, but also highlightsthe necessity and legitimacy of the its exists. The fiction-type provisions in theCriminal Law are embodiments of legal fiction. It has the value of coordinatingcontradiction between the legal system and social reality, achieving the policy orguiding criminal legislation, addressing the difficult cases in judicial practice, etc.But legal fiction emphasize the legislative will instead of the fact, it also has dangersof improperly fiction could have brought a lot of risk to theory and practice. Asimperative law, Criminal law should minimize this risk. And therefore criminal lawfiction must be limited within a certain range in order to ensure its legitimacy.The legitimacy of Criminal legal fiction is the basis of the identifying Criminallegal fiction. So this article is based on the legitimacy of Criminal legal fiction toexplore the identification criteria of Criminal legal fiction, by analyzing thecontroversy clause in theory and judicial practice.