The need to make assumptions goes hand in hand with legal certainty in logic. It is usually determined that the person claiming something in a lawsuit must prove it, but specific assumptions are also made that flow directly from the law. An absolute presumption, in fact and in law, or iuris and de jure, is a presumption which is justified by law and which does not allow any evidence to the contrary, that is to say, it does not make it possible to prove that the fact or situation which is believed to be false, contrary to the relative presumptions, of law, of law or of iuris tantum, which is considered true until proven otherwise. A presumption is referred to in the law as a legal fiction that establishes an automatic legal mechanism that assumes that a particular fact or event is understood as proven simply by giving the conditions for it. The presumption of facts and rights empowers the subjects for whose benefit it is given to waive proof of what is considered safe open legislation. All this favours from the outset one of the parties to the process (the one who benefits from the presumption), which is usually the one who is in a defensive position and whose presumed formal truth must be destroyed by presenting evidence against them by the one who has a truth other than the presumed one. For example, in the case of children born during marriage, the paternity of the husband is presumed or it is assumed that the movable property belongs to the person who owns it. The law allows the judge to freely assess judicial presumptions; this is not the case with legal issues, which link their assessment by their rules. As I said, legal presumptions are divided into purely legal presumptions and legal presumptions. In this classification, the question of whether or not Parliament authorizes evidence to the contrary against the presumption. If the presumption allows proof to the contrary, it is simply legal (s. 47, Inc. 3º, the C.C.).
If the presumption is based on the law, it is presumed that the evidence to the contrary is inadmissible on the assumption of precursors or circumstances (s. 47, last paragraph of the C.C.). We must warn that by saying that the law is inadmissible, the law does not prove otherwise, that no evidence can be presented to destroy the basis of the presumption. What the law does not allow is to challenge the reasoning or to prove the non-existence of the alleged fact, but there is nothing to prevent it from justifying that the fact claimed as a precursor does not exist or is not the one expressly required by the law. The law only uses these presumptions for very specific cases. Some examples are: vLex was founded more than 20 years ago and offers high-quality content and a very intuitive service for lawyers, law firms, government institutions and law universities around the world Hypotheses in the legal field are of two types: legal presumptions and simple or judicial presumptions, also called human presumptions. In the context of legal presumptions, a distinction is made between rebuttable presumptions – which prove the contrary – and iuris and de jure presumptions – which do not allow any evidence to the contrary. If the purpose of the conjectures is well analyzed, it is possible to conclude that the presumptions are not evidence, but an argument to exclude from the evidence.
In short, one could say that presumptions are not evidence, but have to do with procedural truth. Fundamental rights may be infringed by the legislative conception of presumptions. Therefore, it is not only desirable, but it is an inevitable requirement to carry out an assessment of proportionality in order to examine to what extent the collection of an assessment or fact or a synthesis of both to the category of presumption – whether iuris tantum or iuris et de jure – can restrict or disproportionately restrict a fundamental right. It is not enough for the legislature to order the establishment of a presumption. There must be sufficient logical, factual and evaluative elements to make the configuration of presumptions compatible with fairness, due process and effectiveness. Most of the presumptions contained in the law are iuris tantum, such as the presumption of legality of administrative acts, which can be distorted by the interested party by proving that they violate the legal order. In some jurisdictions, we are talking about purely legal presumptions. In legal presumptions, the law does not leave it to the judge to judge them, but determines their effectiveness and value. To this end, the law establishes the fact other than the fact to be proved and stipulates that, in view of this fact, the fact to be proved must be understood as proven and therefore the consequences arising therefrom. vLex is updated daily and brings together content from more than 750 vendors that provide access to more than 2500 legal sources and information from leading vendors in the industry. That link may be absolute in the sense that the Court must necessarily derive a particular fact from the presumption; or relatively, in the sense that you only need to deduce it once proof to the contrary is not provided.
As a result, legal presumptions are divided into simple (or relative, praesumptiones iuris tantum) and legal (absolute, praesumptiones iuris and de jure) legal presumptions. The Civil Code contains many cases of purely legal presumptions, among which we can cite article 180, paragraph 1; 700, paragraph 2; 1654, paragraph 1; 1739, paragraph 1. The purely legal presumption is not actually evidence, but is a case of reversal of the burden of proof because it favours the person claiming it and holds the other party responsible for proving the contrary. However, the party favored by the presumption must prove by the evidence In legal presumptions, as with any presumption, there are three elements: a fact that serves as a precedent, an argument and a fact that is suspected. The legislator justifies and supports the presumption, but on condition that the fact – or the context or circumstances of which the law refers – on which it is based is proved. Access more than 120 million documents from more than 100 countries, including the largest collection of laws, business, forms, books and legal journals. Our Civil Code also contains many cases of presumption of law, in particular cases where the legislator considered that the conclusion resulting from certain known facts or circumstances was so obvious that it deprived the parties of the right to prove the contrary. For the presumption to be understood as a law, it is sufficient that. From the foregoing and from what is prescribed by Article 47, paragraph 1, of the Civil Code, it can be said that presumptions as evidence are the consequences that the law or the court derives from certain circumstances or certain known facts.230e) And presumption, as an object used for deduction, also called indication, It is “any trace, every vestige, every trace, every circumstance and, in general, every known fact, or rather any duly verified fact, which is able to guide us by inferences about the knowledge of another unknown fact”.2312º Classification Iuris and de jure presumptions in law are extraordinary. In some jurisdictions, we talk about legal presumptions. Article 97, paragraph 3, of Law 1474 of 2011 was charged with violating the principle of legality (art. 29 OF THE CRIMINAL CODE) and against Article 118 of the same Law for failure to respect the presumption of innocence (Article 29 of the Criminal Code), the presumption of good faith (Article 83 P.C.) and the constitutional rule that only final criminal convictions have the status of criminal record and classic criminal record (Art.
248)… The immediate application of the procedural rules to tax liability proceedings in progress at the time of entry into force of the law containing them does not infringe the principle of legality if the procedure is dealt with in accordance with the oral procedure, if no injunction to set off tax liability has been issued. The establishment of legal presumptions of intent and guilt for the purpose of determining guilt in tax liability processes does not violate the presumption of innocence or the principle of good faith if such presumptions are intended to ensure the security of relevant situations, to protect valuable legal interests and not to violate logic and experience. Accepting a person`s intention to be convicted by the judiciary or sanctioned by a disciplinary authority for the same acts or damages that serve as the basis for the process of fiscal liability for intentionally committing a crime or disciplinary offence does not disregard the presumption of innocence, the principle of good faith and the rule on criminal record and injury provided for in article 248 of the Constitution. A rebuttable presumption is a presumption that is justified by law and allows evidence against it, that is, it makes it possible to prove the absence of a fact or a right, contrary to the iuris and de jure presumptions of full and absolute law, a presumption that does not allow any evidence against it, or in other words, it is not a consecrated value, Absolutely, but it is a “hypothetical judgment” that can be reversed by proving that an action is illegitimate. But this testimony may be absent or inadequate; In such a case, induction or deduction may be based on traces that take the name of “indications” or “conjectures” and serve as a starting point for the investigation. The consequences that result from this are so-called “legal” presumptions when the law requires it, and “judicial” when it is the judge who receives them.