The fictio juris, or legal fiction, constitutes a legislative and hermeneutic technique through which the legal system considers a fact or situation to exist that, in phenomenal reality, did not occur, or deems non-existent what actually happened, with the scope of enabling the application of norms and ensuring legal certainty. With transversal application in Civil, Civil Procedural, Tax, and Criminal Law, the institute acts as a system integration tool to fill gaps or harmonize divergent institutes.
Concept and Foundation
The legal nature of fictio juris is not to be confused with legal presumption (praesumptio iuris). While a presumption admits evidence to the contrary (iuris tantum) or stems from a logical inference about reality, legal fiction is a deliberate dogmatic construction that precludes evidence to the contrary, operating on a purely normative plane. The legislator, for reasons of legal policy, establishes an inescapable conventional truth so that the system produces specific practical effects.
Historical Origin and Evolution
The genesis of the institute dates back to Roman Law, where the actio ficticia allowed the praetor to extend the application of civil actions to situations not provided for in the strict letter of the law, essentially for the maintenance of equity. With the advent of legal positivism, fiction began to be viewed with caution, with Hans Kelsen being one of its most notorious critics, considering it an element of intellectual dishonesty that concealed normative creation under the guise of interpretation. Contemporaneously, modern doctrine (such as that of Lon Fuller) recognizes that fiction is an indispensable technical instrument for the functionality of Law, allowing for the continuity of legal personality and the stability of property relations.
Legal Provision in the Brazilian Legal System
The 2002 Civil Code (CC/02) and the 2015 Code of Civil Procedure (CPC/15) house several manifestations of fictio juris:
- Art. 2 of the CC/02: The protection of the rights of the unborn child, who, although not endowed with full personality (which begins with live birth), has their rights safeguarded by a fiction of capacity for succession and donation purposes.
- Art. 1,784 of the CC/02: The Principle of Saisine, by which the inheritance is transmitted to the heirs at the exact moment of death, a legal fiction that avoids a vacuum in the ownership of assets.
- Art. 231 of the CPC/15: Regulates the counting of procedural deadlines, setting the start of the count from events that, by fiction, mark the awareness of the procedural act (e.g., the attachment of the warrant to the case files).
Practical Application and Jurisprudential Understanding
The Judiciary uses legal fiction as a stabilization mechanism. Within the scope of the STJ (Superior Court of Justice), Súmula 387 exemplifies the application of institutes that, in practice, operate under similar logic, by recognizing the possibility of cumulating compensation for moral and aesthetic damages, often structured on the fiction of the autonomy of damages, despite their single origin. In Tax Law, jurisprudence has consolidated the fiction of the "presumption of omission of revenue" in situations of irregular bookkeeping, where the system presumes the occurrence of a taxable event for collection purposes, regardless of the effective accounting demonstration of profit.
Related Principles and Doctrinal Divergences
The contemporary debate revolves around the tension between fictio juris and the Principle of the Primacy of Reality. While in Labor Law the primacy of reality seeks to unmask contractual appearances, legal fiction acts in the opposite direction: it imposes a normative reality. The majority Brazilian doctrine, aligned with authors such as Pontes de Miranda, argues that fiction is legitimate as long as it does not violate fundamental guarantees, and must be interpreted restrictively, never analogically, to avoid the undue expansion of tax or punitive burdens.
Contemporary Relevance
In the current scenario of digital transformation and Startup Law, fictio juris gains new contours, such as in the attribution of legal personality to automated entities or in the validation of electronic notifications. The effectiveness of legal fiction, therefore, lies in its ability to provide predictability to the system, ensuring that legal certainty prevails over the sometimes unattainable search for the absolute truth of facts in court.
Legal and Jurisprudential References
- BRAZIL. Law No. 10,406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Law No. 13,105, of March 16, 2015. Establishes the Code of Civil Procedure.
- BRAZIL. Superior Court of Justice. Súmula No. 387. "It is lawful to cumulate compensation for aesthetic damage and moral damage."
- KELSEN, Hans. Pure Theory of Law. 6th ed. São Paulo: Martins Fontes, 1998.
- PONTES DE MIRANDA, Francisco Cavalcanti. Treatise on Private Law. Volume I. São Paulo: Revista dos Tribunais, 2012.
