Current legislation regulates a huge number of public relations. However, some of them are still not fixed normatively. This situation is quite normal, since law-making bodies are not able to provide legal acts for absolutely all public relations.
In practice, there are cases when legally significant circumstances are not in the sphere of regulatory regulation. In such situations, they speak of gaps in the law. Two instruments are provided for overcoming them: the analogy of law and law. In civil law, the conditions and procedure for applying these institutions are enshrined in article 6. Consider their features.
General information
The analogy of the law in civil law is used in cases where there is no norm governing the relationship in question, but there is a legal provision governing similar interactions.
The second important tool to bridge gaps is the analogy of law. In civil law, there are not many examples of the application of this institution. This tool is used in cases where there are no rules governing the relations in question and similar to them.
Mandatory conditions
If you analyze any example of an analogy of the law in civil law, you can identify the following signs of the application of this institution:
- The relationship that has become the subject of the dispute is not regulated by contract or law.
- There is a legal act regulating similar interactions. Therefore, it can be used in a controversial case.
As for the analogy of law, the general principles enshrined in the Constitution and other laws are used to regulate relations. In particular, they include the principles of humanism, justice, equality, etc.
Normative regulation
The application of the analogy of civil law and civil law is primarily due to the variety of legal relations. The Civil Code cannot contain rules governing all interactions that arise between participants in a turnover. Correspondingly, the question for lawmakers came up: what legal provisions can be applied to regulate interactions that are not directly reflected in the law or require addressing several legal branches at once? The solution to this situation is reflected in Article 6 of the Civil Code.
Explanation of the norm
Clause 1 of Article 6 establishes that if any relationship is not directly regulated by the agreement or regulations, and the customs applicable to them are absent, then an analogy of the law applies to such interactions. In civil procedural law, the use of this institution is becoming increasingly relevant.
According to the second paragraph of article 6, if it is impossible to apply the analogy of the law, the legal opportunities and obligations of participants should be determined in accordance with general legal principles based on the requirements of reasonableness, fairness, and good faith.
Family law
Consider one of the illustrative examples of the use of analogy in civil procedural law.
Article 38 (paragraph 2) provides for the possibility of concluding an agreement on the division of property of spouses, according to which, as under a marriage contract, all values can be transferred into the property of a spouse who does not have credit obligations. There is no requirement in this norm for obligatory notification of creditors about the execution of such an agreement. Accordingly, the property interests of persons to whom the spouse has monetary or other obligations may be in jeopardy. The fact is that by the time the creditor submits the claim to the judicial authority, the debtor may not have any property in the property, since by agreement he transferred it to his spouse. In such situations, judicial practice often applies the provisions of article 46 of the UK by analogy with the law.
Therefore, the spouse must inform his creditors of the change, termination or conclusion of the marriage contract. In case of failure to fulfill this obligation, he will be liable for his debts, regardless of the content of the contract. This provision aims to provide additional guarantees to creditors.
Specific Relationship Category
In article 96 of the Family Code of the Russian Federation , the right of the actual caretaker of a child who has been keeping a minor for a long time, upon the onset of disability or in other cases of need, to receive content from a former foster child is enshrined. However, the relationship between these entities in the UK is not regulated. It appears that when a dispute arises, the responsibilities and legal capabilities of the actual caregiver and parents are similar. The latter, in turn, are enshrined in Articles 63-65 of the UK. Accordingly, in controversial cases, an analogy of the law may apply.
Housing Law
The principles of applying the institution of analogy of the law in civil law are reflected in the provisions of article 7 of the LC. Their essence is as follows.
If housing legal relations are not regulated by a code or an agreement of the parties, then in the absence of civil law or other rules directly regulating them, the provisions of the LC, determining similar interactions, are applied. Moreover, the use of analogy should not contradict the essence of the relations themselves.
Other cases
Another example of using the institute of analogy is resolving issues related to the appointment of a liquidator, determining the procedure for terminating an enterprise, etc. When considering a case, the court applies bankruptcy standards, despite the fact that there is no talk of insolvency.
Another example is when revealing the shortcomings of a thing obtained as a gain, their elimination is carried out in the manner provided for the correction of defects in products purchased under a sales contract.
The application of civil law by analogy
It should be based on the basic principles of the industry. The Civil Code relates to them:
- inviolability of property;
- recognition of the equality of participants in relations regulated by law;
- freedom of contract;
- prohibition of arbitrary interference with privacy;
- the need to ensure the unhindered exercise of rights;
- guarantees of protection and restoration of violated interests.
Each example of the analogy of law in civil law has a corresponding justification. After the introduction of the modern revision of the Civil Code in judicial practice, there were not so many cases of applying this institution. This is due to the sufficient development of civil law.
Arbitrage practice
The specifics of using the institute of analogy of law in civil proceedings is disclosed in decisions of higher courts. So, in the definition of the Constitutional Court of April 10, 2003, in interpreting the norms, this legal instrument was applied.
The case was related to the verification of the constitutionality of the provisions of paragraph 1 of article 84 of the Federal Law No. 208. Applying an analogy, the Constitutional Court came to the conclusion that this rule should be interpreted in conjunction with paragraph 2 of Art. 166 of the Civil Code, as presupposing the right of shareholders to file claims with the court on the recognition of invalidity of interested-party transactions.
The application of the institution of the analogy of law should be based on the principles of the relevant legal industry and similar norms in content. This rule is also true for the analogy of the law.
Credit relations
Consider another example of the analogy of law in civil law.
In one of the disputes, the bank was forbidden to file an appeal against the decision of the court, which refused to satisfy the requirements for the recovery of property of the defendant.
In accordance with the case file, the credit institution and the citizen entered into an agreement to purchase a car on credit. The required amount was provided to the defendant. With these funds, a citizen bought a vehicle and entered into a pledge agreement with the bank.
The credit institution appealed to the court due to improper fulfillment by the respondent of its obligations to repay the loan. The bank demanded to collect a car - the subject of a pledge. However, the defendant, without receiving the consent of the credit institution, sold the vehicle at a cost 2 times less than the size of the loan. As a result, the bank filed a new statement in order to collect the car, now owned by the new owner. Meanwhile, the plaintiff did not present the necessary evidence of his arguments and missed the statute of limitations. Accordingly, in the first instance he was denied the claim.
The judicial board agreed with the findings. The appeal was also not satisfied.
Based on the provisions of paragraph 1 of clause 348 of the Civil Code, a foreclosure on pledged property is allowed if the debtor does not fulfill or improperly fulfills obligations. According to Art. 353 of the Code, upon the transfer of ownership of such an object to another person in case of onerous or gratuitous alienation, the right to pledge retains its effect. The first instance could satisfy the applicant's requirements on the basis of these civil law standards.
The analogy of law in the example is applied in connection with the following circumstances. The panel of judges indicated that the new owner purchased the vehicle for a fee. Based on the case materials, it was not possible to prove that he knew that the car was pledged. As a result, the board recognized the subject as a bona fide acquirer.
The definition stated that, according to the requirements of reasonableness, fairness, good faith, in accordance with the analogy of law, the foreclosure on a mortgaged movable object cannot be handled if it was acquired for a fee, and the acquirer did not know and should not have known that the property was in pledge.
Dispute in law practice
A fairly indicative example of the analogy of law in civil law is the case of the appeal of the defense counsel to the Russian Federation in the person of the Ministry of Finance, to the Main Investigation Directorate and the Military Investigation Department.
The lawyer filed a lawsuit in court for compensation for moral damage that arose as a result of untimely payment of remuneration for the defense in the criminal case on purpose. The plaintiff substantiated his claims as follows.
The applicant pointed out that a lawyer cannot refuse to work as intended in the course of employment. Therefore, the norms of the Labor Code apply to it. Accordingly, the applicant requested the court to resolve the situation by applying an analogy of law.
The first instance, however, considered that the norms of the Labor Code do not apply to the activities of a defender. Matters related to the payment of remuneration are regulated by a special law "On advocacy." Based on this, civil law relations are established between the defender and the state.
It follows from this that the provisions of the Labor Code, which regulate the procedure for recovering harm for unlawful actions of the employer, do not apply to the situation under consideration.
As the court explained, the institution of the analogy of law is applicable only if there is no direct regulation of the relevant relations in the legislation. The case under consideration is regulated by a special regulatory act. Accordingly, the lawyer was denied satisfaction of the requirements, and the appellate court upheld the decision.
Conclusion
As can be seen from the above examples, an analogy of law in civil law is allowed not only in accordance with the general principles of the Civil Code, but also the regulations of other industries. In this case, the plaintiff may in his application indicate the possibility of using this institution in resolving a dispute.
In public law, by analogy, only international regulations and principles, as well as the Constitution, can be applied. For example, by virtue of Article 18 of the Basic Law, freedoms and human rights are recognized as directly applicable. This means that if a gap is found in the norms, the provisions of the Constitution and international legal acts are subject to application.
In civil law, any analogy (law or law) is allowed if there is no normative regulation of specific relations. Moreover, greater priority is given to custom and agreement.
The parties to the relationship may provide for the application of the law to the agreement governing other interactions within the framework of the turnover. In such a situation, there is no analogy between law and law. The relevant standards, in turn, must be considered part of the contract.