Analogy of the law

The analogy of law and the analogy of law in civil law is used, as a rule, to eliminate gaps in norms. The second concept is designed to regulate certain cases in accordance with the general principles of the whole discipline, industry or institution. The analogy of the law is provided as a solution to cases (disputes), taking into account a similar norm. The provision regulating social relations, close in nature and significance, is used.

The analogy in civil law is applied only in the presence of gaps. At the same time, the use of such a decision is not allowed in the administrative and criminal branches.

The analogy of the law presupposes that there is no definite norm in the legislation for this or that situation. However, there are similar provisions. On their basis, the resolution of a particular case is carried out. In other words, in a situation where the law does not explicitly provide for this case, but considers another, similar to the first in essential features, differing only in minor, inessential features, the case is resolved in accordance with the provisions in which another, similar case is envisaged.

The analogy of the law differs from a widespread interpretation. The difference is that in the second case the norm is used that provides for the particular case under consideration. The analogy of the law in this case involves the use of a rule regulating a similar case, but not given, because the case under consideration is not provided for in law at all.

The use of this method is due to the fact that in no code, position, act, however specific they may be, it is impossible to envisage all life events or phenomena. In this regard, it is always possible that there may be a case that requires a solution, but the law is not provided for. In this situation, the law is used by analogy, that is, the provision providing the most similar situation is used. Practical application of the analogy of the law can be given different meanings.

The concept under consideration should be distinguished from the definition used in logic. In logic, a certain inference is considered as an analogy (or inference by analogy). In it, in accordance with the similarity of two objects according to one feature, a conclusion is drawn about similarity and other features.

The analogy of law has a completely different meaning. This method of resolving the situation is not considered a means of circumventing a particular norm. In this case, on the contrary, the correct use of the law is ensured. Such a device contributes to the application of this or that normative provision, not against and not against, but on the basis of this or that norm. In this regard, the use of analogy is absolutely excluded in the case when the situation in question is specifically envisaged in the legislation. If the situation is not envisaged by the norms, then a method for resolving other situations of this kind, which are essentially identical with the one under consideration, is revealed. In this case, a distinction is made in the minor details.

It should be noted that there is a certain order of using the analogy of law and law. So, the following conditions must be met:

1. Relations, concerning the regulation of which the decision is applied, should be in the sphere of general management, at least, in general.
2. In the event that there is a rule providing for the resolution of a specific situation, and an analogy is applied instead, this refers to gross violations of the law.
3. Before using this method of resolving a particular situation, it is necessary to carry out a thorough study of the regulatory framework.
4. A reasoned explanation of the reasons for using the analogy of law and law is needed.