The analogy of the law and the analogy of law in civil law is used, as a rule, to eliminate gaps in the rules. The second concept is designed to regulate certain cases in accordance with the general principles of the whole discipline, industry or institution. An analogy of the law is provided as a solution to cases (disputes), taking into account a similar norm. A provision is used that regulates social relations that are close in nature and significance.
The analogy in civil law applies only if there are gaps. However, the use of such a decision is not allowed in the administrative and criminal sectors.
The analogy of the law suggests that a certain norm in the legislation for a given situation does not exist. However, there are similar provisions. On their basis, a 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 secondary, non-essential features, the case is resolved in accordance with the provisions in which another, similar case is provided.
The analogy of the law differs from the widespread interpretation. The difference lies in the fact that in the second case the norm is used that provides for the specific case under consideration. In this case, the analogy of the law implies the use of a norm governing a similar case, but not this one, due to the fact that the case in question is not provided for in the legislation at all.
The use of this method is due to the fact that in no code, provision, act, no matter how specific they are, it is impossible to foresee all life cases or phenomena. In this regard, there is always the possibility that a case may arise that requires a solution, but not provided for by law. In this situation, the law is used by analogy, that is, the provision providing for the most similar situation is used. The practical application of the analogy of the law may have 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 the two objects on the same grounds, a conclusion is drawn about the similarity and other features.
The analogy of law has a completely different meaning. This method of resolving a situation is not considered a means of circumventing a particular norm. In this case, on the contrary, the truly correct use of the law is ensured. Such a technique promotes the application of one or another regulatory provision not contrary to or against, but on the basis of one or another norm. In this regard, the use of analogy is absolutely excluded in the case when the particular situation under consideration is provided for in the legislation. If the situation is not provided for by the norms, then a method for resolving other situations of this kind, essentially the same as the one under consideration, is identified. In this case, a difference in minor details is allowed.
It should be noted that there is a certain procedure for using the analogy of law and law. So, the following conditions must be met:
- Relations, regarding the regulation of which the decision is applied, should be in the sphere of general management, at least in general.
- In the event that there is a norm providing for the resolution of a specific situation, and instead an analogy is applied, this applies to gross violations of the law.
- Before using the considered method of resolving a particular situation, it is necessary to carry out a thorough study of the regulatory framework.
- A reasoned explanation of the reasons for using the analogy of law and law is needed.