analogy of law and analogy of law provided for temporary elimination of legal gaps.In the first case, the resolution of the case based on the rates calculated on the regulation of these social relations.The analogy is the right solution to a specific case in accordance with the general principles of law, institution or branch of the discipline.
use of such an act indicates that the legislation does not contain specific provisions which could be applied to the present case.However, it provided similar provisions in accordance with which the case can be resolved by legal means.For example, the legislation governing the conduct of betting, lotteries and other games of chance.But not all questions in this category are managed by the rules of that institution.In this regard, for example, if a person as a prize was given to a thing of poor quality (with disabilities), the dispute that may arise will be decided using the rules of the exchange of goods that are purchased in the retail environment.
right analogy and the analogy of the law in certain cases expressly provided for in the law.For example, in accordance with Article 778 of the Civil Code to the terms and cost of works of technological, developmental, scientific and research character, the provisions of Articles 738, 709 and 708 of the Civil Code, ie the provisions under which the regulation is carried out under the contract relationship.
analogy of law can be applied in the case, unless expressly permitted by law.It is unacceptable to use in dealing with administrative matters.This is due to the fact that the idea formed in those or other officials about the similarities or dissimilarities may vary.Accordingly, it can be different, and the conclusions drawn.In this case, there is a risk of arbitrariness, which may, in turn, lead to lawlessness.The normal outcome for the rule of law is considered to dismissal in the case if it turns out that the act involves not violate regulations.
Otherwise, conflict resolution exercise civil, civil procedural rules.Article 6 of the Civil Code contains a provision that, if the relationship is not directly regulated by civil legislation or agreement and are applicable to them is not the custom of the business, and if there is no contradiction content of these relations, using similar standards.If the use of such standards is not possible, with the obligations of the parties shall be in accordance with common sense and the principles of civil law.It is used, so the analogy of law.
For proper use of these standards should comply with certain conditions.Thus, the analogy can be applied to the rights of public relations, at least in the most general form within the scope of legal regulation.It should be noted that gross violations will be considered the use of such (similar) standards in the presence of an act (rules), governs the relationship.When using analogy should carefully analyze law, whereby is solved the problem of using such standards.When the similarity should be determined in general forms a discrepancy should be in detail.Using the analogy requires a reasoned explanation.
For one particular aspect of similarity standards include the use of a default provisions.It is an application of the same industry or institution the right to relations which are regulated by other sectors (or institution).
