Gaps in the law and ways of replenishing them. Theory of Law and State

In this article, we will look at gaps in the law and how to fill them. You will find out what kinds of gaps exist, and also in what cases you can use some or other ways of eliminating them. These are important topics that lawyers and politicians should first of all know.

The state, with the help of its power, ensures the life of a society, and the right it needs for the implementation of regulatory regulation. Initially, the right is called to be a calming and stabilizing factor. It must be remembered that the principles of justice and freedom are laid in it.

Law is a very multifaceted and complex phenomenon. A lot depends on his correct understanding: the rule of law in society, the attitude of people towards the state and the regulations coming from it, the level of legal culture in general. All this makes his study relevant not only for lawyers.

Legal regulation

Consider the notion of legal regulation. This is the regulation of various social relations, their protection and development, the legal fastening that the state implements through legal means. Let us single out its main features.

Signs of legal regulation

1. It is a kind of regulation of the social.
2. With its help in a certain legal form, initially having a state-imperious character, relations between subjects are vested. In other words, the state in legal norms indicates a measure of due and possible behavior.
3. The concept of legal regulation is specific. After all, it is always connected with this or that real relationship.

The legal right

It is necessary to clarify two more concepts, before going directly to the topic. Legal law is a measure of the possible behavior of its carrier, as defined by law. Its synonym is subjective law. It should be distinguished from the objective, which is a complex system of social norms and a social regulator. Legal law presupposes the existence of the subject to which it relates. This person is the owner of the sphere of power and freedom that make up his content. Subjective law - this, for example, the right to any action or anything (for education, for work, etc.). At the same time, it is fixed in norms, the totality of which is an objective right.

Objective law

It, unlike the subjective, does not depend on the will of a specific subject. Objective law is gradually formed and is the regulator of relations in society. Throughout life, people enter into various relationships to meet their needs - in work, in the creation of a family, in services and goods, etc. Over time, in accordance with this, norms are formed, certain established rules of conduct. For example, the rights of a citizen of the Russian Federation are fixed, the degree of punishment for their violation is established. There are various codes, the constitution, normative legal acts, that is, the system of legislation in general.

Let us now turn directly to the topic and tell you about the existence of gaps in the law and ways of replenishing them. First of all, it is necessary to determine the key concept.

What is a gap in the law?

It occurs when there is no specific regulatory requirement for certain actual circumstances that are in the sphere of legal regulation. The concept of a gap in law has as its basis the incompleteness of the legal basis for the use of law. Note that cases of complete non-adjustment of relations can also be considered as gaps. However, these phenomena have a different quality than incompleteness in existing normative acts. With the help of law-making activities, such "complete gaps" are being filled. This is the responsibility of the relevant government agencies.

Imaginary and real gaps

Now consider the types of spaces in the right. Among them are imaginary and real. The latter take place when some part of the rule of law or all of it is absent in the event that legal regulation is provided for such an attitude. A real gap is present when it is possible to state with certainty that a particular issue is subject to regulation should be resolved by legal means. However, any specific decision or decision of any part is not fully provided or not envisaged at all.

An alleged gap exists when any sphere of social relations or a certain issue is not regulated, although, in the opinion of a certain group of persons or one person, they must necessarily be resolved by legal means. Perhaps, the legislator in this case does not consider that they should be solved by legal means.

Initial and subsequent spill

From the point of view of the reasons for the emergence of legality in the legislation, it can be either subsequent or initial. The initial is noted when the circumstances requiring settlement have already existed, but the legislator for one reason or another has missed them, because of what they were not covered by legal acts. The later bleakness is the result of the emergence of new relations in the subject of regulation. It is noted as a result of the fact that the corresponding social sphere is developing. Thus, the formation of such gaps in some sense is a natural phenomenon, despite the fact that in such situations legal forecasting should fully prove itself.

Ways to fill the gaps in the law

Spaces, like cases of complete unsettledness, should in principle be eliminated as the legislator discovers. However, due to the fact that the law is systemic in nature and its elements are closely interrelated, the gap can be filled in the process of law enforcement. In jurisprudence, there are traditionally two ways in which you can make up for it. It is about the analogy of law and the analogy of law. Some authors note another way, called subsidiary application of law. In brief, we will talk about each of them.

Analogy of the law

The analogy of the law (or, more correctly, it would be to talk about the analogy of the rule of law) implies the observance of the following conditions:

• Absence of an appropriate legal norm, which could be called adequate;
• The existence of a general settlement by the right of this particular case;
• Existence in the law of a similar norm, that is, in the hypothesis of which there are circumstances similar to those with which the law enforcer had to face.

It is precisely the similarity of legal facts that allows us to engage in the disposition of the analogy of this kind. Its application in the field of business and civil relations, the protection of various intangible benefits, such as inalienable freedoms and human rights, is provided for by existing legislation. However, in the criminal sphere such an analogy is inadmissible. In this case, the activity of legislation is the only way, through which it is possible to eliminate the gaps in the law.

Examples can be given numerous. In particular, only an act for which criminal liability is provided by law should be considered a crime. However, in practice in our country, as in others, unfortunately, it is sometimes attracted to it by analogy. Of course, this violates the rights of a citizen of the Russian Federation. For example, at one time, when the Criminal Code of the Russian Federation did not contain an article on the liability provided for car theft, persons who committed this act were attracted for hooliganism if they did not have the goal of appropriating someone else's property. There were many other gaps in law, examples of which are no less interesting. In particular, most recently, when there was no article in the Criminal Code providing for punishment for kidnapping, the actions of those who carried it out were regarded as unlawful deprivation of liberty of a person, that is, according to articles similar to those found in the Criminal Code of the Russian Federation.

The analogy of law

The analogy of law is a less precise way of solving a legal matter. For its operation, the following conditions are necessary:

• The absence of any similar norm;
• Absence of a legal norm (of course, we are talking about adequate);
• The existence of a general settlement by the right of this particular case.

In this situation, as it is believed, the law enforcer should proceed in solving the case from general principles, as well as from the meaning of the legislation. This means in practice the use of different principles (the principles of institutions, industry, interbranch, general). They are fixed in the law and reflect the laws of the mechanism and subject of legal regulation. The error in this case is the use of the analogy of the law, if there is a similar norm. It is also incorrect to use if there is an adequate norm similar.

Subsidiary application of law

We will continue to examine the gaps in the law and how to fill them. We will now tell about the subsidiar application of law (from the Latin word subsidium, meaning "support", "help"). This is also an analogy of the law (the rule of law), but not any, but belonging to a related branch. For example, it is possible between the rules of family and civil, financial and administrative law. Clearly, it does not make sense to apply subsidiarity if there is a similar norm in the same industry.

In which cases can not you use the analogy

It should be noted that replenishment of problems in law by analogy is possible only if it is permitted by law. It is inadmissible to do this in administrative and criminal law. This is due to the fact that officials may have different ideas about "dissimilarity" or "similarity". Consequently, the conclusions to which they come based on certain principles of law can vary considerably. Because of this, the danger of arbitrariness and lawlessness is created. A gross violation of rights may occur.

Consequently, bringing to administrative or criminal responsibility by analogy is unacceptable. The normal outcome of the case from the standpoint of strengthening the rule of law will be its termination in the event that it turns out that the acts committed are not a violation of the law, that is, a bylaw or a law.

When the analogy is appropriate

In civil and civil procedural law this issue is different. In the sixth article of the Civil Code of the Russian Federation, we find a provision in which, in cases where the agreement of the parties or the law does not directly regulate the relevant relations, and there is no custom of business turnover applicable to them, civil law is used that regulates similar relations.

Lawmaking

We should strive to ensure that during the enforcement of gaps is as small as possible. How to achieve this? Elimination of the gaps in the law is most effective through timely lawmaking, that is, the prompt adoption of the necessary law or other legal act.

In life, unfortunately, this is not always possible. The fact is that the adoption of a new law or normative act takes time, requires special procedures, costs, etc. Therefore, the analogy of the law and the analogy of the law are still the most important ways by which to overcome the gaps in law. In certain critical cases they resort to them.

So, we have described the main gaps in the law and how to fill them. We hope that the information provided will be useful to you.