Analogy of law in civil law: an example of application. Court decision as evidence in the case Analogy of the law in housing legal relations
Application of law by analogy
At the second stage, the law enforcer selects and analyzes the legal norm corresponding to the facts received. At the same time, in practice, there are often cases when such a rule does not exist. There is a situation, ĸᴏᴛᴏᴩᴏᴇ is defined as ʼʼa gap in lawʼʼ.
A gap in law is the absence of a norm regulating a specific relationship that is in the field of legal regulation.. Therefore, two conditions are necessary for a space to exist:
The absence of a norm regulating a specific relationship;
This public relation should be in the sphere of legal regulation. Many public relations are not included in the scope of legal regulation. Accordingly, they are not regulated by law, but by other social norms. In this case, it is impossible to talk about the gaps in the law.
Gaps in the law arise for various reasons:
1. The legislator was unable to cover all life situations requiring legal action with the wording of a regulatory legal act;
2. The legislator ʼʼ did not manage to regulate social relations because of their constant development;
3. As a result of shortcomings in legal technique, which led to an insufficiently accurate expression of the will of the legislator;
4. In the process of law-making, “deliberate” gaps are also possible, when the legislator, guided by ideological, political and other motives, deliberately leaves certain aspects of social relations unsettled.
Only the legislator, the law-making body, can eliminate the gap. Law enforcement agencies cannot engage in lawmaking. At the same time, there is a rule in legal regulation: ʼʼit is impossible to refuse the subject to protect the violated right, referring to the imperfection of the lawʼʼ. Consequently, the law enforcement body cannot refuse to consider the case even if there are factual grounds. In this case, he makes a decision, considering the case ʼʼby analogyʼʼ.
The analogy in law has two varieties:
The analogy of the law is the consideration of the case with gaps in the law, guided by the rule governing similar relations. In this case, in the absence of a rule governing a specific relationship, the law enforcer finds a rule that regulates a similar, similar in nature, relationship, and on the basis of it makes a decision. So, in life there are situations when, for one reason or another, a document (work book, passport, etc.) turns out to be damaged. In this case, the owner is not able to confirm the existence of some subjective rights. The question arises of recognizing this document as corrupted and obtaining a new document. Unfortunately, the legislation does not know the procedure for such recognition. But in the civil procedure code there are norms fixing the procedure for recognizing a document as lost. These situations are very similar. In this case, recognizing the document as damaged, the court is guided by the rules establishing the procedure for recognizing the document as lost.
Law analogy. By it is understood decision-making in case of gaps in the law, guided by the general principles of legislation. In legal practice, there may be cases when the legislation does not have a rule regulating similar relations. In this case, the law enforcer, not finding a similar norm, makes a decision based on the principles of law (legislation). It should be noted that making a decision by analogy is possible in cases provided for by law. In particular, such an opportunity is provided for in Part 2 of Art. 6 of the Civil Code of the Russian Federation, part 3 of Art. 11 Code of Civil Procedure of the Russian Federation, part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation. That is, the legislator allows an analogy in civil and arbitration proceedings. At the same time, the analogy is unacceptable in criminal law and process. Here the principle applies: ʼʼ there is no crime without an indication in the lawʼʼ, which serves as a guarantee of ensuring and protecting the rights of the individual.
Related Literature
Grigoriev F.A. Acts of application of law. - Saratov, 1995.
Zavadskaya L.N. The mechanism for the implementation of the law. - M.: Nauka, 1992.
Kachanovsky Yu. Law and law enforcement// Law and Politics. - 2003. - No. 12.
Reshetov Yu.S. Implementation of the norms of Soviet law. - Kazan: Publishing House of Kazan University, 1989.
Law enforcement in the Soviet state. - M.: Yuridich. lit., 1985.
Tikhomirov Yu.A. The operation of the law. - M.: Izvestia, 1992.
Lazarev V.V. Gaps in the law and ways to eliminate them. - M.: Yuridich. lit., 1974.
Pavlushina A.A. Theory of the legal process: concept, principles, development prospects. - M., 2005.
Sapun V.A. The theory of legal means and the mechanism for the implementation of law. - St. Petersburg, 2002.
Application of law by analogy - concept and types. Classification and features of the category "Application of law by analogy" 2017, 2018.
Paragraph 4 of Art. 1 Code of Civil Procedure of the Russian Federation establishes that in the absence of a rule of procedural law governing relations that arose in the course of civil proceedings, federal courts of general jurisdiction and justices of the peace (hereinafter also referred to as the court) apply the rule governing similar relations (an analogy of the law), and in the absence of such a rule, they act on the basis of the principles of implementation justice in the Russian Federation (analogy of law).
This paragraph establishes the principle of analogy in civil proceedings provided for by the Code of Civil Procedure of the RSFSR. Like the Civil Code of the Russian Federation (Article 6), the Investigative Committee of the Russian Federation (Article 5), the Code of Civil Procedure of the Russian Federation provides for an analogy of law and an analogy of law.
Law analogy- application to a legal relationship not regulated by a specific norm of the norm of the law, which regulates similar relations. The need to apply this technique is due to the fact that the decision in any case must necessarily have a legal basis. Therefore, in the absence of a rule that directly provides for a disputed case, it is required to find a rule that regulates relations as close as possible to the disputed one.
Law analogy- the application to a controversial relationship that is not regulated by a specific norm and to which it is impossible to extend the action of the norm regulating such relations, the general principles and meaning (that is, the principles) of the legislation.
The principles of the administration of justice in the Russian Federation, which are applied in the analogy of law, are disclosed in the Constitution of the Russian Federation, the Law on the Judicial System and the Code of Civil Procedure of the Russian Federation (for example, Articles 5-10).
The possibility of applying the principle of analogy in civil proceedings has been repeatedly disputed. However, due to the fact that civil procedural law is increasingly acquiring features of discretion, and due to the impossibility of resolving all categories of cases that arise in courts, the principle of analogy in civil procedural law is of great practical importance.
So, rules on leaving a claim without movement (Article 136 of the Code of Civil Procedure of the Russian Federation) can be applied by analogy to an application for a court order (Article 123 of the Code of Civil Procedure of the Russian Federation). As example of application of analogy of law can serve application of Part 1 of Art. 101 Code of Civil Procedure of the Russian Federation to the right of the defendant to reimbursement of expenses for the services of a representative in the event of leaving without consideration of the statement of claim on the basis of par. 8 art. 222 Code of Civil Procedure of the Russian Federation.
In accordance with par. 8 art. 222 Code of Civil Procedure of the Russian Federation the court leaves the application without consideration if the plaintiff, who did not ask for the case to be heard in his absence, did not appear in court on a second summons, and the defendant does not demand that the case be heard on the merits. Legal regulation governing the issue reimbursement to the defendant of the costs of paying for services representative in case of leaving the statement of claim without consideration in accordance with par. 8 art. 222 Code of Civil Procedure of the Russian Federation is not included in this Code. In this regard, if the statement of claim is left without consideration on the basis of par. 8 art. 222 Code of Civil Procedure of the Russian Federation should be guided by Part 4 of Art. 1 and part 1 of Art. 101 Code of Civil Procedure of the Russian Federation . According to Part 1 of Art. 101 of the Code of Civil Procedure of the Russian Federation, if the plaintiff refuses the claim, the plaintiff shall reimburse the defendant for the costs incurred by him in connection with the conduct of the case.
When applying the analogy of law it is necessary to clearly know the principles of this branch of law so that the actions performed by the courts and persons participating in the case helped implement these principles. Especially it is necessary to point out Art. 10 of the Civil Code of the Russian Federation, which requires compliance with the reasonableness and good faith of the actions of participants in civil legal relations. For the court, this is a presumption that must be followed when considering and resolving civil cases.
The principles of analogy of law and analogy of law are applied in private law relations, namely in civil and family law. So, according to paragraph 1 of Art. 6 of the Civil Code of the Russian Federation in cases where the provisions of paragraphs 1 and 2 of Art. 2 of the Civil Code of the Russian Federation, relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to civil law governing similar relations (an analogy of the law). If it is impossible to use the analogy of the law, the rights and obligations of the parties are determined on the basis of the general principles and meaning of civil law (the analogy of law) and the requirements of good faith, reasonableness and justice. A similar rule is provided for in Art. 5 SK RF.
UDC 343.98
O. Yu. BULUKOV,
cand. legal Sciences, Associate Professor, National University “Yaroslav the Wise Law Academy of Ukraine”, Kharkiv
PLACE AND ROLE OF ANALOGY IN TACTICAL DECISION-MAKING DURING PRE-TRIAL INVESTIGATION
The concept of "analogy", as well as its place and role in making tactical decisions during the pre-trial investigation, is considered on the example of the investigation of murders "without a corpse".
Keywords: tactical decision, analogy, investigative situation, murders "without a corpse".
Making the right tactical decision during the pre-trial investigation requires a consistent analysis of the available evidence and the relationship between them. The cognitive activity of the person conducting the investigation involves the use of various methods to investigate the mechanism of the crime in all its details. R. S. Belkin, A. N. Vasiliev, V. P. Kolmakov, V. K. Lisichenko, M. V. Saltevsky, M. Ya. mental tasks solved using various methods contribute to the adoption of effective tactical decisions.
In this regard, it is of interest to consider the place and role of the analogy method in making tactical decisions during the pre-trial investigation.
The philosopher A. A. Starchenko studied the most complete logical nature of inference by analogy. Basing his conclusions on the materials of historical and legal research, A. A. Starchenko focused on the method of logical transition from the known to the unknown, the starting point of which is knowledge of another separate phenomenon. The difference between this inference and other forms of logical thinking is
in the formation of a conclusion about a separate, specific phenomenon based on knowledge about another, by logically transferring a feature from one subject to another. “Such a logical transfer of a certain feature from one single object to another, based on the similarity of these features in a number of other features, is called inference by analogy.”
The condition of "inference by analogy" or "method of analogy" is the presence of similar features in both studied phenomena. At the same time, if a new feature is found in one of the compared phenomena, then, based on the previously established similarity, it is concluded that this feature is also inherent in another object. According to the nature of the transferred attribute, in the process of studying the desired object, the analogy can be divided into: a) the analogy of the qualities and properties of objects; b) the analogy of relations arising between certain objects [Ibid., p. 10].
Assimilation of one object of study to another involves establishing the similarity of those features that determine the essence of the compared objects. “Inference by analogy will fulfill its role in solving a crime only if, in the process of investigation, similarities are found in essential, specific, and not random and secondary points, and the differences between them are not ignored.” It will not be true, for example, the judgment that the methodology for investigating murders with the dismemberment of a corpse is similar to the methodology for investigating murders without a corpse, only on the grounds that there is a criminal case under one article of the Criminal Code, which provides for punishment for committing a murder. The recommendations set forth in these methods have significant differences in the organization of disclosure and investigation and coincide only in certain, typical moments inherent in the investigation of murders. For inference by analogy, an essential fact is not a simple coincidence of the features of the objects under study, but their interrelation and internal unity.
Drawing a conclusion by analogy involves identifying a certain set of features that coincide with objects, which will allow us to conclude that the objects of study are similar. However, one should take into account the fact that the greater the similarity between the compared objects, the less the heuristic value of the analogy. In modeling theory, for example, it is quite right to assume that a model that is too distant can be misleading, while a model that is too “accurate” loses its meaning and becomes fruitless. This statement is also true for the use of models in the investigation of crimes. The lack of information in the model that can be used as evidence makes it impossible to use it when making analogies and making tactical decisions.
The method of comparing the features of the objects under study, used in the conclusion by analogy, is also used in forensic identification. However, the difference lies in the objects compared to each other. The objects of identification are derived from one another, and therefore the ultimate goal of identification is to establish identity. In contrast to the objects of identification, the objects of application of the analogy do not have such connections among themselves, but have similar features that allow us to conclude that they are similar.
An essential point in the knowledge of the desired object by analogy is the formation of a conclusion about the probabilistic presence of signs in it that are inherent in the object, which plays the role of a certain “standard”, a source of evidentiary information in the assimilation.
However, it should be noted that the probability of a conclusion does not mean that it is classified as false or, conversely, as a group of true ones. “The conclusion is probable precisely because its truth is possible. But at the same time, the possibility of truth does not exclude the possibility of falsity, and as a result, no probable conclusion, even the highest degree of probability ... does not exclude the possibility
mistakes". Verification of the probabilistic conclusion obtained using the analogy, by means of forensic tactics and its justification, provides an opportunity to find direct evidence incriminating the criminal.
When using analogy in relation to decision-making on various circumstances related to the investigation of crimes, it seems to us that certain “criminal standards” (criminal schemes) that are characteristic of various categories of crimes matter. These may include: methods of committing crimes, methods of concealment, some information about the identity of the offender. These "standards" can be the starting points for making a decision.
The use of the analogy method can be traced on the example of the investigation of murders without a corpse. It is well known that, as a rule, murders “without a corpse” are committed by persons close to the disappeared person. . When analyzing the situation of the disappearance of a person in case of suspicion of a murder, the involvement of relatives and close people of the disappeared person in its commission, by analogy, suggests a careful study of the circle of people close to the disappeared person. The signs that are compared in this case are inherent in: the situation of disappearance; relationships with loved ones; the behavior of loved ones (“negative circumstances”); motives for the murder; method of hiding the corpse; traces of the murder.
The use of the analogy method in likening primary information about the disappearance of a person to cases known to investigative practice makes it possible to find matches in it. Despite the probabilistic nature of coincidences, the latter, if true, contribute to the knowledge of the circumstances of the disappearance of a person and his murder.
The effectiveness of the investigation is facilitated by tactical decisions aimed at establishing signs (traces) of the murder of the disappeared person. The amount and nature of information expected from
decision-making is determined by the coincidence of the signs of the investigative situation that has developed in the investigation, and the one that took place earlier. This statement allows us to conclude that the result of making a tactical decision using the analogy method may have uncertain qualitative and quantitative characteristics.
A probabilistic conclusion about the location of the traces of the murder during the inspection and search at the place of residence of the disappeared person (or another person close to the disappeared person) makes it possible to identify these traces. The conclusion about the possible ways and places of hiding the corpse of the disappeared person or his remains is also probabilistic, which, when verified, can also lead to the establishment of the place where the corpse was hidden.
The widespread use of the analogy method in the investigation of these murders is justified by the small amount of information about the murder at the initial stage of the investigation. The need to obtain orienting information about a crime involves the use of the analogy method.
The application of the analogy can be traced on the example of the investigation of bribery in establishing the methods of committing and concealing this crime. The methods of committing and concealing these crimes used in applying the analogy are quite typical and can be systematized in the process of analyzing practice materials. However, in the current reform period, the methods of committing and hiding have become more sophisticated, due to the involvement of commercial structures, banks, registration authorities, etc. in criminal activities.
The use of analogy involves the use of the so-called "information models" of the commission and concealment of crimes, as well as their disclosure and investigation. Knowledge of such models makes it possible to logically transfer the features they have to individual elements of the current investigative situation and, having identified them in a new quality, use them as evidence.
To determine the possibilities of using information models in the investigation, it is necessary to explore some aspects of the concept and formation of a model of an investigative situation.
At a certain stage of the investigation, the investigative situation reflects certain information about the crime event. The source of this information is the material and ideal traces of the crime, which allow you to mentally reconstruct the situation and recreate the model of the crime mechanism. So, according to T. S. Volchetskaya, “a model of a criminal situation is a mental representation of the investigator, based on the available information about the event under investigation, explaining the general content of the criminal situation as a whole, its individual elements, “revealing” their relationship and explaining their interdependence” .
This definition quite fully reveals the essence of the model of the investigative situation, although it is defined as "criminal". (It seems to us that a “criminal” situation is before the initiation of a criminal case, and in the process of investigation it acquires the status of “investigative”).
However, in relation to the investigation of murders “without a corpse”, the model of the investigative situation of the initial stage of the investigation, as a general rule, does not contain complete information and does not explain many of its elements and their interrelations.
Considering the structure of the criminal situation model in general terms, T. S. Volchetskaya calls it “the following main blocks: a) information about the subject of the crime; b) information about the object; c) the motive and purpose of the deed; d) information about the means, method and mechanism of committing a crime (about the actions committed by the offender and the victim, the method of preparing, committing, concealing a crime); e) information about the circumstances in which the crime was committed; f) information about the place and time of the commission
crimes; g) information about other participants in the crime, accomplices, eyewitnesses.
The specified list of structural blocks does not contain a direct reference to information about the victim as a structural element. In our opinion, information about the victim is no less important than information about the offender. This can be explained by the disclosure of a significant number of violent crimes, using information about the victim. In the murders “without a corpse” we are considering, information about the victim allows us to put forward versions regarding the person who committed the murder and establish the place and method of hiding the corpse.
The practice of investigating the murders and other crimes in question indicates that information models can be different in terms of the information they contain and reflect various aspects of the investigation process. In this study, the models of the criminal's actions to commit a crime, the motives for such actions, actions to conceal the crime, and the mechanism of trace formation are of interest.
The information model is also an activity for the disclosure and investigation of such crimes, which provides for a system of investigative and other actions used in the investigation. The use of the analogy method in the investigation of crimes depends on the possession of information about the commission, disclosure and investigation of similar crimes. Moreover, the more such knowledge, the more saturation the models of their disclosure and investigation become.
Using analogy in making tactical decisions in
investigation of crimes allows the full use of the means of forensic tactics for the effective detection and investigation of crimes.
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3. Volchetskaya T. S. Forensic situational studies / T. S. Volchetskaya. - M .: Moscow state. un-t, 1997.- 247 p.
4. Myshkov Ya. E. Bribery: a methodology for investigating crimes /
Ya. E. Myshkov. - H. : Finn, 2011. - 173 p.
5. Starchenko A. A. The role of analogy in cognition (on the materials of historical and legal research) / A. A. Starchenko. - M.: Higher school., 1961.- 52 p.
6. Starchenko A. A. Logic in forensic research / A. A. Starchenko. - M. : Gosjurizdat, 1958. - 235 p.
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Bululukov O. Yu.
The concept of "analogy" is analyzed. The place and the role of analogy in the adoption of tactful decisions on the pre-trial investigation on the butt of the investigation of driving “without a corpse” are examined.
Key words: tactful solution, analogy, similar situation, driving “without a corpse”.
Bululukov O. Yu. Place and role of the analogy's in the making of tactical decisions on pre-trial investigation.
It is analyzed the concept "analogy". The place and role of an analogy in making of tactical decisions on pre-trial investigation on the example of an investigation a murder "without a body".
Key words: tactical decisions, analogy, investigational situation, murder "without a body".
analogy law administrative law
Analogy of the law in civil, labor, family tax and other branches of law
With the analogy of the law, the norm providing for a specific life situation is absent in the law, therefore, it becomes necessary to apply the norm regulating close, similar legal relations. Depending on whether the norms of a branch of law are applied by analogy to relations that are the subject of regulation of the same or another branch of law, there are intra-branch and inter-branch analogy of the law Kartashov V.N. The theory of the legal system of society: Textbook. In 2 vols. T. 1. Yaroslavl, 2005. S. 328 ..
The procedure for applying the analogy is a creative activity, which consists in developing the will of the legislator in law enforcement practice, and therefore the judge’s ability of analytical thinking in the relevant situation (when using analogy) must be very high. As a general rule, the application of law by analogy is permissible in cases where a different procedure for overcoming the gap is not indicated in the explanatory decisions of the highest judicial instances, and also if the analogy in these cases is not prohibited by them Alieskerov M. Procedural analogy in civil proceedings // Russian justice. - 2002.- No. 3.- P. 32. .
According to the Civil Code of the Russian Federation, the analogy of law involves taking into account the general principles and meaning of civil law and the requirements of good faith, reasonableness and justice. Code of Civil Procedure of the Russian Federation Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on June 28, 2009) // СЗ RF.- 2002.- 3 46.- Art. 4532. involves the decision of the case on the basis of the principles of the administration of justice in the Russian Federation. That is, the scope of the analogy of law includes the use of the principles of not only this industry, but also the general legal principles of law (as in civil law), and the principles of other industries (according to civil law).
The resolution of this situation is seen by the author as follows: in the event of a situation where it is not possible to resolve the incident using the analogy of the law, the law enforcement officer can base his decision on the rule of law of an adjacent area (necessarily adjacent, because it is impossible, for example, in civil law to use the rules criminal, etc.). Such an opportunity should be provided to law enforcement authorities, taking into account the interests of the latter: borrowing a “ready-made rule” facilitates the law enforcement process, in contrast to the development of a completely new solution. On the other hand, such borrowing must meet the requirements laid down in the principles of the original branch of law, other provisions that have the status of “fundamental”, and, in addition, general legal principles of law.
In this regard, it seems necessary to amend Art. 6 of the Civil Code of the Russian Federation, setting out the first part of it as follows: “In cases where ... relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to legislation regulating similar relations (an analogy of the law).
Thus, expanding the scope of the possible application of the norms, including the norms and other branches of law, the Civil Code of the Russian Federation will thereby provide an opportunity for the law enforcement agency to resolve unresolved situations not in relation to this industry, but on the basis of the actual “similarity of relations”.
The institution of analogy is designed to resolve problems that objectively arise for judges when resolving a specific dispute, regardless of whether representatives of science consider it possible to use analogy, in particular, the application of civil law norms by analogy in resolving disputes arising from labor relations.
For example, it seems appropriate to indicate in the Decree of the Plenum of the Armed Forces of the Russian Federation on the possibility of applying by analogy to the resolution of labor disputes the provisions of Ch. 12 of the Civil Code of the Russian Federation "Statute of limitations", regulating the issues of suspension, interruption and restoration of the limitation of actions, since the current Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (as amended on July 17, 2009) // SZ RF .- 2002 .- No. 1.- Art. 3. Consultant Plus: Judicial practice does not contain rules defining the concept of limitation period for labor relations, does not indicate the grounds for a possible suspension or interruption of the limitation period. Meanwhile, the relevant circumstances, which are connected with the decision of the issue of the timeliness of the employer's appeal to the court for damages, arise in practice. For example, the fact of causing harm was discovered, but a lengthy audit to determine the amount of damage caused, a protracted criminal investigation and consideration of a criminal case in court in order to identify the person guilty of causing damage, did not allow the employer to apply to the court in a timely manner; by the time the employee responsible for this was identified, the latter was in the Armed Forces, transferred to martial law (Article 202 of the Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ (as amended on July 17, 2009) // SZ RF.- 1994.- No. 32.- Article 3301.).
According to part 2 of Art. 392 of the Labor Code of the Russian Federation, the employer has the right to apply to the court with a claim for compensation for damage caused by the employee within 1 year from the date of discovery of the damage caused. Despite the wording used by the legislator in the specified article of the Labor Code of the Russian Federation, it, in fact, is not about a preemptive period, after which the very right of the employer “dies” in relation to the debtor-employee, but about the limitation period, i.e. . the period that can be restored by the court considering the case, which was directly indicated both in the Decree of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” (paragraph 8), and in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (p. 5) Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Armed Forces of the Russian Federation. - 2004. - No. 6. .
It seems that the question of the timeliness of the plaintiff's application for judicial protection in these and similar situations could be resolved in practice by pointing out in the Resolution of the Plenum the possibility of the courts applying, by analogy with the provisions of Ch. 12 of the Civil Code of the Russian Federation "Limitation period" and using the provisions of this chapter to the relevant situations.
It was expedient to do this, not only because the majority of labor cases, including cases to which the Plenum of the Supreme Court of the Russian Federation, held on November 2, 2006, was devoted. Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. responsibility of employees for damage caused to the employer " // Bulletin of the Supreme Court of the Russian Federation. - 2007. - No. 1., are considered by justices of the peace, who for the most part have little experience in judicial work, but also due to the fact that in the practice of higher courts also there are erroneous judgments when resolving the issue of the possibility of restoring the missed deadline for going to court when appealing against the orders of the employer to dismiss the employee. Sometimes the specified period is considered by judges as a procedural period and therefore the issue of its restoration is erroneously proposed to be resolved using Art. 112 Code of Civil Procedure of the Russian Federation. Meanwhile, in this case, we are dealing with a period defined in the norm of substantive law (part 2 of article 392 of the Labor Code of the Russian Federation). Missing the specified period cannot prevent the application for judicial protection (filing by the plaintiff and acceptance by the judge of the statement of claim), but may serve as a basis for dismissing the claim with a court decision.
The Code of Civil Procedure of the Russian Federation (part 3, article 11) allows the use of analogy in resolving civil cases in the broad sense of the word, therefore, analogy is also acceptable when considering labor disputes.
The application of the Civil Code of the Russian Federation, by analogy to other branches of law, can only be prohibited by the Civil Code itself, but the Civil Code of the Russian Federation does not contain such a prohibition. There is no such prohibition in the Labor Code of the Russian Federation.
At the same time, a number of scientists V. Ershov spoke out against fixing in the Decree of the Plenum on the possibility of using certain norms and institutions of civil law in resolving labor disputes. .
At the same time, labor law develops according to its own laws, but if a specific issue of labor law, in the regulation of which there is a gap, cannot be resolved by its own means, law enforcers are forced to turn to civil law norms in the manner of an intersectoral analogy. In particular, law enforcers have many questions in practice regarding the timing of applying to the employer and to the court for certain categories of labor disputes. These deadlines are not always established by the Labor Code of the Russian Federation, and law enforcers are forced to refer to the relevant norms of the Civil Code of the Russian Federation and other federal laws.
Since the Decree of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” did not contain provisions on the possibility of applying civil law norms by analogy in resolving labor disputes, it should be supported (as a possible way to overcome the gap in labor legislation) E.A. Ershova and include in the section "General Provisions" of the Labor Code of the Russian Federation an article in which it is necessary to provide for the grounds and limits for the application of civil legislation to relations in the sphere of labor in the manner of an intersectoral analogy Zakharov V.N. The use of analogy in resolving labor disputes // Russian Justice. - 2008. - No. 3. - P. 31. . This article could be formulated as follows: "Civil legislation applies to relations in the sphere of labor in cases expressly provided for by labor legislation, and also when these relations are not regulated by labor legislation or by agreement of the parties and when this does not contradict their essence."
In the Russian Federation, as a legal state, laws on taxes and fees should contain clear and understandable norms Determination of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 441-O “On the refusal to accept for consideration the complaint of the Niva-7 limited liability company for violation of constitutional rights and freedoms, paragraph 2 of Article 20, paragraphs 2 and 3 of Article 40 of the Tax Code of the Russian Federation” // Bulletin of the Constitutional Court of the Russian Federation. - 2004. - No. 3 .. According to paragraph 6 of Art. 3 of the Tax Code of the Russian Federation, “acts of legislation on taxes and fees must be formulated in such a way that everyone knows exactly what taxes (fees), when and in what order he must pay” Tax Code of the Russian Federation (part one) dated 31.07.1998 No. 146-FZ (as amended on July 19, 2009) // SZ RF.- 1998.- No. 31.- Art. 3824. . Thus, the legislator established one of the principles of tax law - the principle of certainty of tax norms, the violation of which will mean that tax relations cannot be considered properly regulated, as a result of which a gap may arise in the legal regulation of tax relations. The application of the law by analogy is a way of filling such gaps.
The legislation on taxes and fees does not contain such a thing as an analogy of the law, in contrast to civil legislation. This state of affairs is due to the fact that tax law is a public law branch, therefore, imperative principles constitute the essence of the legal regulation of tax relations.
“The legislation on taxes and fees governs power relations in the establishment, introduction and collection of taxes and fees in the Russian Federation ...” - Art. 2 of the Tax Code of the Russian Federation. Power relations in the tax sphere provide for the presence of a subordinate entity - the taxpayer (payer of the fee). Subordination means lack of equality in tax relations. The analogy of the law is an institution of civil law (Article 6 of the Civil Code of the Russian Federation), therefore, at first glance, there are no legal grounds for its use in resolving tax disputes.
Tax legislation does not allow the application of the norms of the law by analogy Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 1999 No. 41 “Overview of the practice of application by arbitration courts of legislation governing the taxation of banks” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1999. - No. 7 .. Currently the position of the Supreme Arbitration Court of the Russian Federation has changed, which allows using the analogy of the law in resolving tax disputes. However, appealing to the institution of analogy of the law does not always meet the interests of the taxpayer.
On the issue of applying the analogy of the law in tax relations, there is no uniform judicial and arbitration practice. At the same time, the arbitrators generally agree that the analogy of the law is admissible in the process of resolving tax disputes.
For example, the arbitration court considered it possible to apply, by analogy, Art. 78 of the Tax Code of the Russian Federation for the return of a fine, since until January 1, 2007 this procedure was not regulated by the norms of the Tax Code of the Russian Federation Resolution of the Federal Antimonopoly Service of the North-Western District of 19.01.2006 in case No. A56-6911 / 2005 // Consultant Plus: Judicial practice. In this case, the appeal to the analogy was in the interests of the taxpayer. But there is also a diametrically opposite position: the use of analogy in tax relations is unacceptable by virtue of paragraphs 1, 5 of Art. 1, art. 6, 11 of the Tax Code of the Russian Federation Resolution of the Federal Antimonopoly Service of the Urals District of April 17, 2002 in case No. F09-735 / 02-AK // Consultant Plus: Judicial practice.
The legal justification for applying the analogy of the law when considering tax disputes in an arbitration court is Part 6 of Art. 13 Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95-FZ (as amended on June 28, 2009) // SZ RF.- 2002.- No. 30.- Art. 3012.: in cases where disputed relations are not directly regulated by federal law and other regulatory legal acts or by agreement of the parties and there is no business custom applicable to them, to such relations, if this does not contradict their essence, arbitration courts apply the rules of law governing similar relations (analogy of law), and in the absence of such norms, they consider cases based on the general principles and meaning of federal laws and other regulatory legal acts (analogy of law).
Under section 102(9) RULPA Limited Liability Limited Partnership is a limited partnership whose certificate indicates that the Limited Partnership is a limited liability limited partnership.
Under section 406(b), the consent of all general partners is required to convert a Limited Partnership into a Limited Liability Limited Partnership.
The difference between this type of partnership and a limited liability partnership lies in the fact that only participants who are still called "general partners" participate in the management of the partnership, while in the conduct of business activities on behalf of a limited liability partnership, as a general rule, entitled to accept all its participants.
Accordingly, the question arises of the need to introduce such organizational and legal forms of a legal entity in Russia as a limited liability partnership and a limited liability partnership. In our opinion, this question should be answered in the negative in the present period of development of the Russian economy.
The number of legal entities with limited liability of participants in the obligations of a legal entity should currently be limited, since it is this form that offenders most often use to commit both administrative and criminal offenses. In the future, when the level of legal awareness of Russians reaches the appropriate level, favorable conditions will be created for the development of entrepreneurial activity, including in a similar form, this form can basically be borrowed from North American law. However, the legal status of this organization should be regulated taking into account Russian legal traditions.
In particular, it is hardly worth establishing a rule on the possible subsidiary liability of participants in a limited liability partnership for certain obligations of the organization if they express a desire to use it - this rule of law will turn out to be unrealizable. At the same time, the rules on subsidiary liability of participants in a Russian limited liability company can be applied and will become effective in relation to a limited liability partnership.
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UDC 343.1 EL. Farafontova
JUDICIAL PRECEDENT AND LEGAL ANALOGIES: PROBLEMS OF LAW ENFORCEMENT
The article is devoted to the role of judicial precedent among other sources of Russian law. Key words: judicial precedent, analogy of law, analogy of law.
E.L. Farafontova
JUDICIAL PRECEDENT AND LEGAL ANALOGIES: PROBLEMS OF ENFORCEMENT
The article is dedicated to the role of leading case among the other source of Russian law.
Key words: judicial precedent, analogy of statute, analogy of law.
The problem of the analogy of law and the analogy of law has been and remains one of the debated issues of jurisprudence. Let's consider some of its aspects.
The need to apply legal analogies arises at the stage of law enforcement and is explained by the presence of gaps in the legislation. A gap in law should be understood as the absence of a specific rule necessary to regulate a relationship that is within the scope of legal regulation. The concept of "gap" in law or law is rather complicated, and there is no unambiguous interpretation of it in the legal literature, since the confusion of actual social relations with legal relations, and especially their inclusion in the concept of law, makes it difficult to clarify the issue of gaps.
V.S. Nersesyants gives the following definition: “A gap in law means the absence of such a rule of law, which, according to the meaning of the current law and the nature of the social relations regulated by it, is necessary to regulate these specific factual circumstances (actual relations) that are in the sphere of the established legal regulation” . The author believes that gaps can
be "not only in normative acts, but also in customs, judicial precedents". A.F. Cherdantsev proposes to understand the gap in law as "the absence of a rule of law, which should be in the system of law in terms of the principles and assessments of the law itself" . The specified author characterizes a gap in the law as a situation “when there is a fact, which by its nature is in the sphere of legal regulation, requiring legal resolution, but there is no rule of law providing for it” . Unlike the previous author, A.F. Cherdyntsev proposes to consider the principles and assessments of the law itself as the boundary of the phenomena included in the system of legal regulation.
From the point of view of O.E. Leist, a gap in law is a situation in which “facts or relations are not evaluated by law, but professional legal consciousness imperiously dictates the need for their legal qualification” . I.V. adhered to a similar approach to determining the essence of a gap. Mikhailovsky, who uses the concept of a gap in relation to situations in which "the actual circumstances of the case do not correspond to any of the descriptive parts (assumptions) of the current legal norms" . This led to the conclusion that the “gap in positive law” does not provide an answer to the question posed by life.
Thus, lawyers associate the approach to determining gaps in law either with a broad interpretation of the sphere of social relations that fall within the sphere of interests of legal influence, or that share the concepts of “a gap in law” and a gap in “law” and at the same time seek to limit the scope of social relations, subject to legal regulation.
Spaces can be different and classified:
by types of regulatory legal acts (in laws, in decrees of the head of state, in a government decree, in instructions from a ministry);
by the time of appearance (primary (initial), which arose at the time of the publication of regulatory legal acts, as a rule, as a result of the omission of law-making bodies, and subsequent (secondary), which appeared after the publication of legal acts, in the process of developing public relations);
according to the structural elements of the legal norm (a gap in the hypothesis, a gap in the disposition, a gap in the sanction).
IN AND. Akimov divides the gaps into legislative (relations that for some reason are not regulated by the legislator) and technical (arising due to the fact that the court has not been given all the necessary instructions to resolve a particular issue).
V.V. Lazarev distinguishes among other types of gaps intentional, deliberately left by the legislator.
Some authors consider gaps in law depending on the volume and point either to the complete absence of normative acts regulating a separate set of social relations that require fixing by law, or to the presence of a normative act by which the legal relationship is not sufficiently regulated.
The objective reason for the emergence of gaps in the law is the dynamic nature of the development of public relations in the social sphere, to which the legislator as a whole has already extended his will. Society consists of numerous social groups that enter into various relationships with each other, science develops, new technologies arise, the clumsy state machine does not have time to fix changes and establish new rules of behavior. Thus, in a sense, the formation of subsequent gaps in the legislation is a natural phenomenon, although it is predictable.
Among the subjective reasons for the formation of legal gaps can be attributed the imperfection of the means of legal technique used in rule-making procedures, the inattention of the legislator, who did not cover the already existing circumstances by regulating the normative legal act.
Do not confuse legal gaps and discrepancy between the content, logical meaning and literal meaning of the text of the article. It is possible to understand the meaning that the legislator puts in a legal norm using various ways of interpreting the law.
The constitutional right of everyone to judicial protection implies the possibility of subjects of law to apply to jurisdictional bodies with a demand to restore or protect their violated or disputed right or legally protected interest. A citizen or legal entity cannot be denied the protection of their rights under the pretext of incompleteness, inconsistency or ambiguity of legal norms.
A way to overcome legal gaps are legal analogies - a widespread phenomenon in the law enforcement activities of the judiciary of any state. The application of the law is one of the forms of realization of the law and takes place where the addressees of legal norms cannot exercise their rights and obligations provided for by law without the power of the company.
competent state bodies and persons for the preparation and adoption of a decision on a legal case based on legal facts and specific legal norms. In the absence or incompleteness of the latter, it becomes necessary to use the analogy of law and law.
The analogy of the law is the application to a relation that is not regulated in a specific norm of a norm of the law that regulates similar relations. The need to apply this technique lies in the fact that a decision on a legal case must necessarily have a legal basis. Therefore, if there is no rule that directly provides for a disputed case, then it is necessary to find a rule that regulates relations similar to those in dispute. The rule of the found norm is used as a legal basis when making a decision on the case. The analogy of law means the application to such relations of general principles, meaning and principles of legal regulation of the relevant branch of law.
The analogy of the law is rightly considered a simpler and, accordingly, more common form of legal analogies. And only if it is not possible to apply it, the analogy of law applies.
The Russian legislator differently considers the possibility of applying legal analogies in various branches of law. Traditionally, analogies are directly allowed by the norms of the branches of private law - civil (Article 6 of the Civil Code of the Russian Federation), housing (Article 7 of the Civil Code of the Russian Federation), family (Article 5 of the Civil Code of the Russian Federation), as well as civil procedure (Part 4 of Article 1 of the Code of Civil Procedure RF), arbitration procedural legislation (part 6, article 13 of the Arbitration Procedure Code of the Russian Federation). A direct ban on the use of legal analogies is contained in the Criminal Code of the Russian Federation (part 2, article 3).
Does this mean that the analogy of the law is possible only in cases expressly provided for in the law itself? The answer to this question is given by the provisions of the procedural codes. According to part 3 of Art. 11 Code of Civil Procedure of the Russian Federation in the absence of the rules of law governing the disputed relationship, the court applies the rules of law governing similar relations (an analogy of the law), and in the absence of such rules resolves the case based on the general principles and meaning of the legislation (analogy of law). A similar norm is also fixed by Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, but only for cases that do not contradict the essence of the relationship.
It should be noted that in connection with the constitutional introduction in Russia of the right to private property, the expansion of civil liberties, the scope of application of the analogy of the law is correspondingly narrowing. This is evidenced by the definition of analogy in the Civil Code of the Russian Federation: in Part 1 of Art. Article 6 states that in cases where “relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to civil law governing similar relations (an analogy of the law)”. In civil law, therefore, for the application of the analogy of the law, the absence of a norm directly regulating the disputed relationship is not enough. It is also necessary that there is no agreement between the parties and the usual business practice applicable to the disputed case.
We believe that the list of circumstances limiting the use of legal analogy is incomplete. In the event that law enforcement authorities discover a gap in the legislation, judicial practice is also important, which acts as a legal precedent in the absence of regulatory regulation of the disputed relationship. According to A.A. Malyushin, “the court in this case, i.e. in the context of a gap that has been discovered in the regulatory and legislative system, in its law enforcement activities, it does not resort to analogy and to the involvement of international legal norms, but independently forms a norm, creates it within those necessary and legislative limits, compliance with which is an integral part of the very concept of "judicial discretion". While generally agreeing with this position, we note that the creation of a rule of law by the court is not the discretion of the court, but a judicial precedent. To be fully formalized as a precedent, it lacks only the binding nature of its application by other courts. However, if such a norm is created by a higher court, it will certainly be followed by lower courts, including when a gap is found in the legislation.
The question of the recognition of a precedent, and even more broadly - of judicial practice as a source of law, has been and is debatable in Russian legal reality. Among the rather numerous and varied arguments given in defense of the thesis about the non-recognition of legal precedent as a source of modern Russian law, the following are the most widely used.
First, the assertion that the recognition of judicial precedent as a source of law is contrary to the constitutionally recognized and enshrined principle of separation of powers. According to B.C. Nersesyants, judicial practice in all its manifestations “is, according to the current Constitution of the Russian Federation of 1993, not law-making, but only law-enforcement (and corresponding law-interpreting) activity. This clearly follows from the constitutional concept of the Russian legal statehood and the constitutional regulation of the principle of separation of powers into legislative, executive and judicial. G.N. Manova opposes "the concept of judicial
law-making, recognizing rule-making powers for judges” and believes that “the legislator has a wider social outlook and, accordingly, it is possible to take into account a much larger number of factors in the decision-making process.” As for the judges, they deal only with "a specific, even if typical, situation". Based on this, it is concluded that the judge will not be able to cope with rule-making functions as successfully as the legislator does.
Other authors have a different point of view. According to R.Z. Livshits, in real life, as the experience of other countries that have long and fruitfully used the principle of separation of powers shows, there is no such strict, rigid, initially given division of the sphere of activity and functions of the various branches of power. It exists only in theory, but not in real life, in practice. The US Constitution, for example, provides that the judicial power extends only to "cases decided by law and in equity arising under this Constitution," the laws of the United States and international treaties concluded by them, as well as a number of other cases and disputes in which The United States is a party to disputes between two or more states, between a state and citizens of another state, and other similar cases. In other words, theoretically, according to the Constitution, the US judiciary performs "purely" judicial functions. In fact, along with judicial functions, in the person of the US Supreme Court, it simultaneously carries out law-making functions.
Secondly, the thesis that the supporters of this version explain the recognition of legal precedent as a source of Russian law by the characteristic features of the Romano-Germanic legal system, to which Russia is traditionally attributed, and which, according to some domestic scientists, does not know such a form of law, as a legal precedent. However, as the researchers note, studying the theory and practice of applying precedent in the group of countries of the Romano-Germanic system, it is necessary to state, on the one hand, the absence of a general concept of precedent, on the other hand, the recognition of the practical role of a court decision. For example, in Greece, formally, court decisions are not considered as a source of law, and the courts in their activities are not bound by legal precedent, as is the case in the Anglo-Saxon legal family. However, in practice, everything looks far from it. The researchers note that in the legal system of Greece, case law actually operates. This is manifested, on the one hand, in the fact that the Supreme Court of the country makes decisions that are very important in nature, in fact, equating to a precedent. And on the other hand, in the fact that in their activities the lower courts of Greece usually adapt to the decisions of the higher courts, although technically they are not bound by these decisions in any way.
Thirdly, the opinion that the recognition of a legal precedent would, on the one hand, contradict the current Constitution of Russia and ordinary legislation, and, on the other hand, would conflict with the law-making activities of the Federal Assembly.
Other jurists consider the acts of the judiciary to be the source of law. One should agree with the position of V.I. Anishina that in the adoption by the court of such decisions, which become generally binding for various subjects of law, there is no contradiction to the principle of separation of powers, since the main function of the legislator - rule-making is not transferred to the court and is not blocked by a court decision: the legislator has the right to himself on his own initiative at any time time to adopt the rules governing disputed relations, and he is not bound by a court decision. But the opinion of this author, who believes that the “legal positions” of the Constitutional Court of the Russian Federation, binding on the courts, can be contained not only in the resolutive part of the decisions, but also in the reasoning part of the decisions, and even in refusal rulings and rulings on termination of proceedings in the case, should be considered erroneous. According to E.A. Ershova, “the ruling of the Constitutional Court of the Russian Federation is not a court decision on the merits of the dispute (Article 71 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”). This conclusion is also consistent with the practice of the European Court of Human Rights, which renders court decisions on the merits of the dispute in the form of judgments. In some cases, the European Court of Human Rights adopts decisions on an accelerated procedure, but is not limited to interim court rulings, since before the dispute is considered on the merits, the participants in the process are heard and the case materials are examined, the “legal position” of the court cannot be developed in principle.
Recognize the legal precedent as a source of Russian law and other authors. “It is necessary to recognize de jure what exists de facto,” notes L.P. Anufrieva, “since the functioning of the domestic judicial system within the framework of existing and existing state legal structures convinces us that, in essence, it forms sources of law.” T.N. is more categorical about the role of judicial precedent. Neshataeva, in the words of which "in the Russian
In the European legal system, as in any continental system of law, precedent in one form or another has always existed as a source of law", for example, "the application of law or law by analogy" .
The problem of precedent was considered during the scientific and practical conference "Civil Legislation of Russia at the Present Stage: Problems and Ways of Development", held on February 14 and 15, 2002 in the Supreme Arbitration Court of the Russian Federation: "In the context of the problem of the formation of a harmonious system of civil legislation, the conference raised and the problem of precedent as a source of Russian civil law. In his report, Chairman of the Supreme Arbitration Court of the Russian Federation V.F. Yakovlev, when asked whether the precedent is currently a source of law, answered in the affirmative. "Today, we can safely say: the precedent, as a stable legal position created by the courts, works," he said. V.F. Yakovlev emphasized the special role played by judicial practice in the early 1990s. In the absence of the legal norms necessary for the development of market relations, it was forced to develop new legal precedents, which were subsequently used over a long period of time. With the advent of the first part of the Civil Code, the task of the courts was greatly simplified, and they created the law by way of its broad or restrictive interpretation, applied it by analogy. At the present time, according to the chairman of the Supreme Arbitration Court of the Russian Federation, "judicial practice has actually been elevated to the rank of law."
A similar position regarding the place of judicial precedent in the system of sources of Russian law was expressed by M.I. Braginsky. For his part, Professor William Simons, agreeing with the opinion of V.F. Yakovlev that "precedents are created by all courts of the judicial system and "arranged" in the highest courts", even proposed to introduce mandatory publication of all court decisions of courts of all levels as sources of law" .
Let us disagree with the opinion of the last author. Judicial practice is that side of the application of legal norms that is associated with the formation in the process of this application of any well-established provision specifying the legal norm, a set of similar decisions in similar cases, a peculiar form of law enforcement activity. In the Russian Federation, judicial practice, without giving rise to mandatory norms, has a certain impact both on the activities of the judicial system itself and on the legal system as a whole. But this does not apply to all parts of the judicial system.
There are two forms of expression of judicial practice in the Russian Federation:
1) in guiding explanations given by the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation on the application of legislation in the consideration of specific cases; clarifications of the highest judicial authorities are binding on the courts. These resolutions: a) adopted by the authorized body of the Russian state; b) contain rules of law, expressed in an abstract form, addressed to an unlimited number of persons falling under their action; c) designed for repeated use; d) are subject to mandatory publication. These properties of them make it possible to assume that they are sources of law;
2) in principle decisions on specific cases of courts of different levels, which are called the precedent of interpretation.
Judicial decisions certainly have a certain impact on the functioning of the mechanism of legal regulation. But their action extends to specific participants in the legal relationship, as well as any subjects of law regarding this particular case.
Disputes over the recognition of the Russian precedent as a source of law do not stop today. Speaking at the third Senate readings, the Chairman of the Supreme Arbitration Court of the Russian Federation A. Ivanov noted that the Russian judicial system has been moving "in the direction of precedent" since the plenums of the Supreme Arbitration Court and the Supreme Court received the right to interpret laws, and the Constitutional Court - to give a universally binding interpretation of the Constitution and to declare legislative norms unconstitutional. “It's just that the courts have chosen a certain model of work, and it inevitably entails the precedence of their legal positions. But the final transition to a precedent system is the right direction of movement, because there are many serious advantages in such a system. Among the advantages, Ivanov singled out three: the stability of legal positions, the opportunity for the judiciary to take its rightful place in the system of separation of powers, and the reduction in the influence of various external factors on judges, such as administrative pressure and corruption.
Regarding the statement of the Chairman of the Supreme Arbitration Court of the Russian Federation, the participants in the discussion expressed different opinions. Yu. Tolstoy, Professor of the Faculty of Law of St. Petersburg State University, Academician of the Russian Academy of Sciences, suggested subjecting "the innovative approach of the chairman of the Supreme Arbitration Court to a thorough check." Chairman of the St. Petersburg Garrison Military
Yu. Kozlov called himself an opponent of case law in Russia, since it "will not change the existing reality, but will significantly reduce the independence of judges." Plenipotentiary of the Government of the Russian Federation in the Constitutional Court M. Barshchevsky said that in order to switch to a case law system, it is necessary to create a single Supreme Court, and this requires a change in the Constitution. We join the opinion of Valery Musin, Head of the Department of Civil Procedure at the Faculty of Law of St. form the basis of the law. At the same time, the precedent does not violate the principle of the independence of judges, since it becomes binding on everyone, like the law itself.
Sharing the point of view of supporters of the recognition of legal precedent as a source of law, let us return to the question of the significance of a court decision for a law enforcer when a gap in the legislation is discovered in the course of his activities. In cases where the relations (that is, civil relations) provided for in paragraphs 1 and 2 of Article 2 of this Code are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, civil law shall apply to such relations, unless this contradicts their essence. regulating similar relations (an analogy of the law). If it is impossible to use the analogy of the law, the rights and obligations of the parties are determined on the basis of the general principles and meaning of civil law (analogy of law) and the requirements of good faith, reasonableness and justice (Article 6 of the Civil Code of the Russian Federation).
This list should be considered incomplete, in addition to the listed restrictions, when a gap is found in the law, the courts actively refer to judicial practice as one of the sources of law. Thus, the Pervomaisky District Court of Izhevsk ordered the Ministry of Finance of Russia to pay the lawyer 15,000 rubles as compensation for non-pecuniary damage for an illegal search conducted in his office, stating that "the search violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms" (the right to respect for private and family life, home and correspondence). In addition, the court referred to three decisions of the European Court of Human Rights and applied the analogy of the law, since Russian law does not provide for the right to compensation for non-pecuniary damage for an illegal search. Earlier, the Supreme Court of Chuvashia denied human rights activist Denis Fyodorov compensation for moral damage caused to him by an illegal police search, pointing to the absence of a norm in the legislation that directly provides for such a right. The lawyer initiated an appeal to the Constitutional Court of Russia with a request to clarify this legal gap.
Joining the authors who apply a broad approach, considering the essence of legal gaps, we consider it necessary to supplement the provisions of Article 6 of the Civil Code of the Russian Federation with an indication of judicial precedent as one of the circumstances limiting the use of legal analogy. In the absence of regulatory regulation of the situation and the presence of legal custom and judicial practice, judicial precedent should be applied as a priority, as an official source recorded in the acts of the competent state body.
In conclusion, I would like to draw attention to the fact that the problem of overcoming gaps in legislation is one of the important legal problems of a democratic state. Its correct resolution contributes to the adoption of a lawful and reasonable decision on the case, which means timely and effective protection of the violated right or legally protected interest of a person. The subject of law enforcement must take responsibility for the decision made in the event of a gap in the law and use the entire arsenal of legal means established by the law.
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