The analogy of law

The analogy of the law and the analogy of law are envisaged in order to temporarily remove legal gaps. In the first case, when resolving a case, they are based on a rule designed to regulate such public relations. The analogy of law is the decision of a particular case in accordance with the general principles of law, industry or institution of this discipline.

The use of such an act indicates that there is no specific rule in the legislation that could be applied to this case. However, similar provisions are provided, according to which this case can be resolved by legal methods. For example, the legislation regulates the procedure for sweepstakes, lotteries and other games based on risk. But not all questions of this category are governed by the norms of this institution. In this regard, if, for example, a poor quality item (with defects) was transferred to a person as a prize, the dispute that may arise will be resolved using the exchange rules for goods that are purchased in the retail environment.

The analogy of law and the analogy of the law in some cases is directly stipulated in the law itself. For example, in accordance with Article 778 of the Civil Code, the provisions of articles 738, 709 and 708 of the Civil Code, that is, prescriptions in accordance with which the regulation of relations under the contract of work , are applied to the timing and cost of performing technological, developmental, scientific research activities .

An analogy of the law can be applied in the event that it is expressly permitted by law. It is inadmissible to use it in administrative matters. This is due to the fact that the representations formed by these or other officials about dissimilarity or similarity may differ. Accordingly, the conclusions can be different. In this case, there is a danger of arbitrariness, which, in turn, can lead to lawlessness. The normal outcome for strengthening the rule of law is the cessation of the case in the event that it turns out that the acts of the person involved do not violate the requirements.

Otherwise, the resolution of the conflict is carried out by civil, civil-procedural norms. Article 6 of the Civil Code stipulates that in the event that relations are not directly regulated by civil law or agreement and the business custom applicable to them, and if there are no contradictions in the content of these relations, similar norms are used. If the use of such norms is not possible, the duties of the parties are established in accordance with the general meaning and the beginnings of civil legislation. Thus, analogy of law is used.

To properly use such norms, certain conditions must be observed. Thus, the analogy of law can be applied to public relations, even in the most general form related to the sphere of legal regulation. It should be noted that the application of similar (similar) norms will be considered a gross violation if there is an act (norm) directly regulating relations. With the use of analogy, it is necessary to carefully analyze the legislation, as a result of which the question of using such norms is being solved. In this case the similarity should be determined in general forms, and the discrepancy should be in details. The use of analogy requires a reasoned explanation of the reasons.

To a special variant of similarity of norms carry subsidiary use of positions. It is the application of the norms of one industry or institution of law to relations that are regulated by another industry (or institution).