Malimonova M.A. Specific Issues of the Effectiveness of Using Presumptions and Fictions in the Institution of Criminal Records
DOI: https://doi.org/10.15688/lc.jvolsu.2026.1.6
Maria A. Malimonova, Candidate of Sciences (Jurisprudence), Associate Professor, Department of Criminal Law and Procedure, Volgograd State University, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0009-0006-9516-2388
Introduction: the quality of legal regulation depends not only on the success of the legislator’s cognitive activity in forming his will but also on the competent use of technical and legal tools, including presumptions and fictions. In the modern institution of criminal records, these components of legislative technique are actively involved, but errors and miscalculations were made in their use (ignoring the possibility of rebutting presumptions, the deviation from the intended purpose of fictions, etc.), which served as an obstacle to the effective implementation of this institution. Purpose: 1) to identify the presumptions and fictions of fundamental importance for the regulation and application of the institution of criminal records; 2) to identify typical problems of the legislative regulation and application of the institution of criminal records caused by incorrect application of presumptions and fictions and to propose ways to eliminate them. As a result, the fundamental presumptions and fictions for the institution of criminal records are identified, as well as the facts of their incompetent use, which in turn have created conditions for the incorrect application of this normative formation. The recommendations are given for eliminating existing errors in this part. Methods: the research methodology includes system analysis, synthesis, and the formal-logical and documentary methods. Conclusions: 1) the fundamental ones in the institution of criminal records are the presumption of increased public danger of a person with a criminal record and the presumption of the decrease of such danger up to its loss over time; 2) the absence in the Criminal Code of provisions regarding the interruption of the expungement period for a prior conviction in case a person commits a new crime, as well as regarding the calculation of the expungement period based on the substituted type of punishment, is the result of the incomplete consideration of the presumption of the diminution of the social danger posed by a convicted person and the loss of such danger over time; 3) the use of fictions in defining the concept of criminal record (parts 1 and 2 of Article 86 of the Criminal Code) is inexpedient and ineffective, therefore, it is necessary to abandon them and introduce a legal definition of the term “criminal record” as part of a separate article of the Criminal Code; 4) in the application of the institution of criminal record, an important role is played by fictions, which are knowingly false statements about a legal fact, resulting from official interpretation, not a legislative activity. Such phenomena are proposed to be called “interpretative fictions” and considered as means of legal technique.
Key words: institution of criminal records, legal presumption, fiction, public danger of a person with a criminal record, expungement and removal of criminal record, interpretative fiction.
Citation. Malimonova M.A. Specific Issues of the Effectiveness of Using Presumptions and Fictions in the Institution of Criminal Records. Legal Concept = Pravovaya paradigma, 2026, vol. 25, no. 1, pp. 46-52. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2026.1.6
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