analogy of law and analogy of law in civil law is typically used in order to fill gaps in the rules.The second concept is designed for the regulation of certain cases in accordance with the general principles of the entire discipline, industry or institution.The analogy of the law is provided as a solution to cases (disputes) considering similar rules.Used provision regulating social relations, similar in nature and value.
analogy in civil law applies only in the presence of gaps.The use of such a solution is not allowed in administrative and criminal industry.
analogy of the law suggests that certain rules in the legislation to a particular situation does not exist.However, there are similar provisions.On the basis of the resolution is carried out of a case.In other words, in a situation where the law does not stipulate explicitly the case, but considered other, similar to the first significant signs differing only in minor, non-essential features, the matter is resolved in accordance with the provisions, which provided another similar case.
analogy of law is different from rasprostranitelnogo interpretation.The difference is that in the latter case uses the rule that provides for the specific case under consideration.The analogy of the law in this case involves the use of norms regulating similar cases, but not this, due to the fact that the present case is not provided for in the legislation at all.
use of this method due to the fact that none of the Code, the position act as if they were specific, it is impossible to provide all of life's occasions or events.In this regard, there is always the possibility that it may be a case that needs to be addressed, but the law is not provided.In this situation, the law is used by analogy, that is just used a provision most similar situation.Practical application of the analogy of the law may be assigned different meanings.
discusses the concept must be distinguished from the definition used in the logic.In the logic of the analogy (or reasoning by analogy) is considered a definite conclusion.In it, according to the similarity of the two subjects in further features, formed a conclusion about the similarities and other features.
completely different value has the right analogy.This method of resolving the situation is not considered a means of circumvention of a rule.In this case, on the contrary, actually provided the proper use of the law.This method facilitates the application of a legal provision is not contrary to and do not mind, but on the basis of a rule.In this regard, using the analogy completely ruled out in the case where the situation in question specifically provided for in the legislation.If the situation does not provide rules that identify the method of resolution of other cases of this kind, is essentially identical to the one under consideration.This may be a difference in minor details.
should be noted that there is a certain procedure of using the analogy of the law and rights.Thus, subject to the following conditions:
- relationship, about which the regulation applies the solution should be in the field of general management, at least in general.
- If there is a rule, include allowing the specific situation, but instead used the analogy, it relates to gross violations of the law.
- Before using this method for resolution of a situation, it is necessary to carry out a thorough study of the regulatory framework.
- necessary reasoned explanation of the reasons for using the analogy of the law and rights.
