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法律拟制作为一种重要的立法技术,其正当性却一直备受质疑;由于立法者认识的局限性和思考的图像性,不可能通过符合纯粹逻辑的方式制定法律,采用相对简化的规则设置拟制的条文就成为难以避免的现象;在同一性与差异性辩证互动的诠释循环的思考路径之中,两个不同的构成事实具有同一的意义和关系是制定法律拟制的决定性因素;同一的意义和关系是诠释循环中形成的比较点,具体表现为事物的本质。事物的本质沟通了实然与应然,是制定法律的本体和核心。法律拟制并非立法者恣意的行为,需要通过事物的本质所展现的规范目的来控制其正当性。
Legal fiction as an important legislative technique has been questioned for its legitimacy. Due to the limitations of legislators' understanding and the image of thinking, it is impossible to formulate laws in a purely logical way by adopting a relatively simplified rule setting The proposed article becomes an unavoidable phenomenon; in the path of thinking of the dialectical interaction between identity and diversity, the two different constituted facts have the same meaning and the relationship is the decisive factor in the formulation of legal formulation; the same The meaning and relationship are the comparative points formed in the annotation cycle, and the concrete manifestation is the essence of things. The true nature of things is and should be, is to develop the law of the ontology and core. Legal fiction is not a willful act of legislators. It needs to be controlled by its normative purpose through the essence of things.