According to part 4 of Art. 1 Code of Civil Procedure of the Russian Federation in the absence of a procedural law governing relations that arose in the course of civil proceedings, the courts apply the rule governing similar relations (an analogy of the law), and in its absence, they act on the basis of the principles of the administration of justice (an analogy of law). Thus, in the civil process, the legislator positively resolved the issue of the admissibility of the analogy of procedural norms.

The Arbitration Procedure Code of the Russian Federation does not contain a similar provision. Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, but its literal reading suggests that it refers to filling only material and legal gaps.

Such a construction of procedural codes led some researchers to the conclusion that the rules of the arbitration process cannot be applied by analogy. “In contrast to the civil process, the arbitration process does not provide for the commission of procedural actions by analogy with law or law” (Arbitration process: Textbook ... / edited by M.K. Treushnikov. M., 2007).

This position is sometimes accepted by the jurisprudence.

Thus, in the decision of the Federal Antimonopoly Service of the East Siberian District dated December 15, 2008 in case No. A33-6172 / 08, considering the prosecutor’s complaint against a judicial act by which court costs were collected from the prosecutor’s office in favor of the defendant, the court formulated the following position:

“The prosecutor’s reference in substantiating the application in the present case of the analogy of the law to the provisions of paragraph 2 of Article 45 of the Code of Civil Procedure Russian Federation cannot be accepted by the court of cassation, since the provisions of Article 3 of the Arbitration Procedure Code of the Russian Federation, which determine the procedure for legal proceedings in arbitration courts, do not provide for the application of the analogy of the procedural law.

However, the Arbitration Procedure Code of the Russian Federation does not contain a direct ban on the application of procedural rules by analogy.

An example of the application of the norms of the APC of the Russian Federation by analogy was given by the Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 1 of the Information Letter dated December 22, 2005 No. 96 “Overview of the practice of consideration by arbitration courts of cases on the recognition and enforcement of decisions of foreign courts, on contesting decisions of arbitration courts and on issuing writ of execution to enforce the decisions of arbitration courts”.

As an answer to the question of what the arbitration court should do if the applicant did not attach the necessary documents (in particular, an enforcement document) to the application for recognition and enforcement of a foreign court decision, the following recommendation was formulated:

“Part 3 of Article 242 of the Arbitration Procedure Code of the Russian Federation establishes a list of documents attached to an application for recognition and enforcement of a foreign court decision. Clause 2 of part 3 of this article determines the need to submit a document confirming the entry into force of a foreign court decision, if this is not indicated in the text of the decision itself.

The consequences of violation of these requirements in Chapter 31 of the Arbitration Procedure Code of the Russian Federation are not provided.

In accordance with Part 6 of Article 13 of the Arbitration Procedure Code of the Russian Federation, in cases where the disputed relations are not directly resolved federal law and other normative legal acts or agreement of the parties and there is no business custom applicable to them, to such relations, if this does not contradict their essence, arbitration courts apply the rules of law governing similar relations (an analogy of the law).

Consequently, the question of the procedural consequences of failure to submit required documents subject to resolution by analogy on the basis of the provisions of the Arbitration Procedure Code of the Russian Federation on proceedings in the arbitration court of first instance.

In accordance with parts 1, 2, 4 of article 128 of the Arbitration Procedure Code of the Russian Federation, the arbitration court, having established when considering the issue of acceptance statement of claim to proceedings that it was filed in violation of the requirements of Articles 125 and 126 of the Code, issues a ruling on leaving the application without motion.

In favor of the admissibility of the analogy of procedural rules in the arbitration process, one can also argue that the application of procedural rules by analogy is necessary to eliminate gaps in legal regulation. If we deny the admissibility of such an analogy, then a situation may arise when the court does not have the tools to eliminate the gap in the law.

The Constitutional Court of the Russian Federation in its Determination of March 16, 2006 No. 76-O indicated that:

“The application of the analogy of the law is due to the need to fill in the gaps in the legal regulation of certain relations. The consolidation of such a right in Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation follows from the principle of independence of the judiciary and is one of the manifestations of the discretionary powers of the court necessary for the administration of justice, since the impossibility of applying the rules of law by analogy in the presence of unsettled relations would lead to the impossibility of protecting the rights of citizens and , ultimately, to the restriction of their constitutional rights. When applying this kind of analogy, the court does not replace the legislator and does not create new legal norms, acting within the framework of the law.

This position is formulated in relation to the civil process. However, based on the desire to bring the civil and arbitration process closer together (which takes place and), it would be logical to extend such a position to the arbitration process.

Colleagues! In your opinion, is it permissible to apply procedural rules by analogy in the arbitration process? Why?

Have you encountered the application of the analogy of procedural rules in the arbitration process? In what situations?

In accordance with Art. 183 of the Arbitration Procedure Code of the Russian Federation, at the request of the applicant, the arbitration court of first instance indexes the amounts awarded on the day of execution of the court decision, in cases and in the amounts provided for by federal law or an agreement. This article contains references to other federal laws or agreement of the parties, which may make it difficult to use. The Letter of the Supreme Arbitration Court of the Russian Federation dated May 25, 2004 N C1-7 / UP-600 "On federal laws that are applied by arbitration courts in accordance with the reference rules contained in the Arbitration Procedure Code of the Russian Federation" contains a list of federal laws that can be applied to this rule in as the basis for indexing. However, the information contained in this letter is not of a normative nature and is used as a methodological material.

4.1. Conclusion from judicial practice: Art. 811 of the Civil Code of the Russian Federation are not applied by analogy with the law for indexation of amounts recovered by court decision.

Arbitrage practice:

Decree of the Federal Antimonopoly Service of the Urals District of February 16, 2005 N F09-226 / 05-GK

"... As follows from the materials of the case, by the decision of the Arbitration Court of the Kurgan Region dated 01/09/2002, which entered into force, 7287 rubles 06 kopecks were collected from Kankar LLC in favor of entrepreneurs Kalinina T.L. and Kalinina E.A. ., of which unjust enrichment - 3743 rubles 60 kopecks, interest for the use of other people's funds on the basis of Article 395 of the Civil Code of the Russian Federation - 1875 rubles 32 kopecks, losses - 1336 rubles 93 kopecks, legal expenses for payment state duty - 331 rubles 21 kopecks.

On the basis of this decision, a writ of execution was issued.

Entrepreneurs Kalinina T.L. and Kalinina E.A. appealed to the court with a statement on the indexation of the sums of money recovered by the court decision, referring to the long-term failure of Kankar LLC to comply with the judicial act.

According to Part 1 of Art. 183 of the Arbitration Procedure Code of the Russian Federation, the arbitration court, at the request of the claimant, indexes the sums of money awarded by the court on the day of execution of the court decision in cases and in the amounts provided for by federal law or the contract.

The court, refusing to satisfy the application, rightly proceeded from the fact that there is neither an appropriate federal law that would provide for the indexation of the amount of money awarded in the present case, nor an agreement between the claimant and the debtor regarding the indexation of the amounts recovered.

At the same time, the court came to the correct conclusion that, in fact, the claimant raises the issue of collecting interest for the use of other people's funds, which is subject to consideration in the course of action proceedings, and not at the request of the claimant on the basis of the rules of the Arbitration Procedure Code of the Russian Federation.

The applicant's argument that in this dispute the court could apply by analogy with Art. Art. 809, 811 of the Civil Code of the Russian Federation, which regulate similar legal relations in a loan agreement, is rejected as legally untenable.

These rules govern the relationship of paying interest on the loan amount in the form of a fee for providing the loan amount and paying interest for non-fulfillment of a monetary obligation, provided for in Art. 395 of the Civil Code of the Russian Federation, which are not similar to legal relations arising from the payment of a debt on the basis of a judicial act that has entered into legal force, therefore, their application by analogy to disputed legal relations is impossible. Interest under Art. Art. 809, 811 of the Civil Code, are recovered in the framework of action proceedings, and the indexation of the amounts awarded is carried out at the request of the claimant in the context of the procedural rules of the Arbitration Procedure Code of the Russian Federation governing the procedure for the execution of judicial acts of an arbitration court ... "

The current legislation regulates a huge number of social 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 social relations.

In practice, there are often cases when legally significant circumstances are not in the sphere of regulatory regulation. In such situations, one speaks of gaps in the law. To overcome them, two tools are provided: the analogy of law and law. In civil law, the conditions and procedure for the application of these institutions are enshrined in Article 6. Let us consider their features.

General information

The analogy of the law in civil law is used in cases where there is no norm regulating the relations in question, but there is a legal provision regulating similar interactions.

The second important tool for bridging gaps is the analogy of law. In civil law, there are not so many examples of the application of this institution. This tool is used in cases where there are no norms regulating the relations in question and similar to them.

Mandatory conditions

If we analyze any example of the analogy of law in civil law, we 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 the contract or law.
• There is a legal act regulating similar interactions. Therefore, it can be used in a disputed case.

As for the analogy of law, the general principles enshrined in the Constitution and other laws are used to regulate relations. These include, in particular, the principles of humanism, justice, equality, etc.

Regulatory regulation

The application of the analogy of civil legislation 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 the turnover. Accordingly, the legislative bodies faced the question - what legal provisions can be applied to regulate interactions that are not directly reflected in the law or require recourse to several legal branches at once? The solution to this situation is reflected in Article 6 of the Civil Code.

Explanations to the norm

Paragraph 1 of article 6 establishes that if any relationship is not directly regulated by an agreement or regulations, and there are no customs applicable to them, then the 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 possibilities and obligations of the participants must 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 the spouses, according to which, as under a marriage contract, all valuables can be transferred to the property of a spouse who does not have credit obligations. This rule does not require mandatory 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 at risk of violation. The fact is that by the time the creditor sends a claim to the judicial authority, the debtor may not have any property in his property, since he transferred it to his spouse by agreement. In such situations in judicial practice often apply the provisions of the UK by analogy with the law.

Therefore, the spouse must inform his creditors about 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 is intended to provide additional guarantees to creditors.

Specific category of relationships

Article 96 enshrines the right of the actual educator of a child who has kept a minor for a long time, upon the onset of disability or in other cases of need, to receive maintenance from the former pupil. However, the relationship between these subjects in the UK is not regulated. It seems that in the event of a dispute, the obligations and legal possibilities of the actual educator and parents are similar. The latter, in turn, are enshrined in articles 63-65 of the UK. Accordingly, in disputed cases, the analogy of the law can be applied.

housing law

The principles of applying the institute of analogy of law in civil law are also reflected in the provisions of Article 7 of the LC. Their essence is as follows.

If housing relations are not regulated by the code or by the agreement of the parties, then in the absence of civil law or other norms directly regulating them, the provisions of the LC that define similar interactions are applied. At the same time, 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 the activities of an enterprise, etc. When considering a case, the court applies the bankruptcy rules, despite the fact that there is no question of insolvency.

Another example is when defects in an item received as a prize are identified, they are eliminated in the manner prescribed for the correction of defects in products purchased under a sales contract.

Application of civil law by analogy

It should be based on the basic principles of the industry. The GC includes:

• 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 for the protection and restoration of violated interests.

Each example of analogy has a corresponding justification. After the introduction of the modern edition of the Civil Code in judicial practice, there were not so many cases of application of this institution. This is due to the sufficient development of civil legislation.

Arbitrage practice

The specifics of using the institute of analogy of law in civil proceedings is revealed in the decisions of higher courts. Thus, in the definition of the Constitutional Court of April 10, 2003, this legal instrument was applied when interpreting the norms.

The case was connected with the verification of the constitutionality of the provisions of paragraph 1 of clause 84 of Article 208 of the Federal Law. 166 of the Civil Code, as suggesting the right of shareholders to submit claims to the court for which there is an interest.

The application of the institute of analogy of law should be based on the principles of the relevant legal branch and norms similar 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 prohibited from filing an appeal against the decision of the court, which refused to satisfy the requirements for the recovery of the defendant's property.

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 vehicle and entered into a collateral agreement with the bank.

The credit institution went to court due to improper fulfillment by the defendant of his obligations to repay the loan. The bank demanded to recover the car - the subject of collateral. However, the defendant, without obtaining the consent of the credit institution, sold the vehicle at a cost 2 times less than the amount of the loan. As a result, the bank filed a new application to recover 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 satisfaction of the claim.

The panel of judges agreed with the findings. The appeal was also not satisfied.

Based on the provisions of paragraph 1 of paragraph 348 of Article CC, foreclosure on pledged property is allowed if the debtor does not fulfill or improperly fulfills obligations. According to Art. 353 of the Code, when the ownership of such an object is transferred to another person in the event of a paid or gratuitous alienation, the right of pledge retains its effect. The first instance could have satisfied the applicant's claims on the basis of the said norms of civil law.

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 file, 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 purchaser.

The ruling stated that, according to the requirements of reasonableness, fairness, good faith, in accordance with the analogy of law, a pledged movable object cannot be levied if it was acquired for compensation, and the acquirer did not know and should not have known that the property was in pledge.

Dispute in law practice

A fairly illustrative example of an analogy is the case on the appeal of the defense counsel to the Russian Federation represented by the Ministry of Finance, to the Main Directorate of the Investigative Committee and the Military Investigation Department.

The lawyer applied to the court with a claim for compensation for moral damage that arose as a result of untimely payment of remuneration for defense in a criminal case as intended. The plaintiff substantiated his claim as follows.

The applicant pointed out that a lawyer, when carrying out labor activities, cannot refuse to work as assigned. Therefore, the rules of the Labor Code apply to it. Accordingly, the applicant asked the court to resolve the situation by applying the analogy of law.

The first instance, however, considered that the norms of the Labor Code do not apply to the activities of a defense lawyer. Issues 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 regulating the procedure for recovering damages for unlawful actions of the employer do not apply to the situation under consideration.

As the court explained, the institute of analogy of law is applicable only in the absence of direct regulation of the relevant relations in the legislation. The case under consideration is regulated by a special normative act. Accordingly, the lawyer's demands were denied, and the appellate instance left the decision unchanged.

Conclusion

As can be seen from the above examples, the analogy of law in civil law is allowed not only in accordance with general principles Civil Code, but also regulations of other industries. In this case, the plaintiff may indicate in his application the possibility of using this institution in resolving the dispute.

In public law, by analogy, only international normative acts 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 right) is allowed if there is no normative regulation of specific relations. In this case, greater priority is given to custom and agreement.

The participants in the relationship may provide for the application to the contract of legislative norms regulating other interactions within the framework of the turnover. In such a situation, there is no analogy between law and law. The relevant rules, in turn, must be considered part of the contract.

There are certain restrictions on the use of resolutive generalizations and synthesized rules in a deductive way, like the norms of statutes. Deductive reasoning by itself is rarely used in deciding whether a case falls within the scope of a rule formulated on the basis of an earlier case, unless the subsequent case contains the same facts and circumstances as the earlier case. Thus, judges hearing Case No. 2 (fraudulent acquisition of a boat) may read and reread the resolutive summary of Case No. 1, but it will not tell them whether the rule of law formulated in Case No. 1 should also apply in Case No. 2. The judges must establish the similarities and differences between the factual circumstances in Case No. 2 with the actual circumstances of Case No. 1 and any other precedents in this area of ​​legal relations. To do this, it is necessary to use the justification method directly by analogy with the facts of the previous case.

A. The procedure for substantiating a court decision by analogy with previously established precedents

The procedure for establishing precedent by analogy with previously established precedents consists of two stages: (1) identifying similarities and differences in facts between the new case and the existing precedent and (2) establishing similarities or differences between the case under consideration and the precedent in important aspects relevant to the case being solved question. If it is found that these important aspects precedent is similar, this precedent must be followed. If, however, the precedent differs in important respects from the case at hand, it will be considered legally distinct from the previously established precedent.

To decide whether to follow a previously established precedent or consider a case legally distinct from a previously established precedent, the court has to resort to simple reasoning by analogy every day. As an example that anyone with kids can understand, let's say you decide to let your 10-year-old stay up until 10pm (on weekends). Your six-year-old daughter, on the other hand, felt a pang of injustice as she was forced to go to bed at 8 p.m. She asks you to let her stay up until 10 pm, referring to the fact that you allowed her ten-year-old sister to do this. In substantiating her argument with precedent, your six-year-old daughter points out the similarity of facts in two situations, namely that they are both children and do not have to go to school the next day. If you find the link unconvincing youngest daughter to the case of the eldest daughter, it is because you decide that the difference in age between the children is more important than any other similarity between them. The distinction turns out to be important, since age is directly related to the question you are solving: the time when children should go to bed. Age difference is important in determining bedtime, as young children need more sleep.

Of course, the most difficult part of reasoning by analogy is judging the importance of differences or similarities. This question of importance cannot be answered in the abstract. Importance is situational and depends on the issue you need to address. In the children example, permission denied younger child staying up late because "she's Anna and you're Zelda" is a decision based on the real difference between them - their names. But different names cannot serve as a sufficient basis for a decision in the case presented, since this difference has nothing to do with the time of going to bed. On the other hand, the fact that "she is Anna and you are Zelda" turns out to be a significant difference in determining where each child should be in a line where everyone is lined up in alphabetical order.

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Justification of the judgment directly by analogy with previously established precedents

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• Answers to the exam in criminal procedure law

  | Answers for the test / exam| 2016 | Russia | docx | 0.38 MB

  1. The concept, essence and significance of the criminal process 2. CRIMINAL PROCEDURE LAW, ITS PLACE IN THE SYSTEM OF RUSSIAN LAW 3. The system of the current criminal procedure legislation 4.

T. A. SCHELOKAEVA, "Legal grounds for the application of law by analogy" / Arbitration practice No. 1, 2007 In the modern legal system of the Russian Federation, the application of law by analogy remains very difficult, since it requires the law enforcer high level professional training. Despite a fairly good theoretical development of this issue and its legislative consolidation, law enforcement authorities unreasonably rarely and very carefully make decisions motivated by the use of the analogy of the law or the analogy of law.

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Legal grounds for applying the law by analogy

In the modern legal system of the Russian Federation, the application of law by analogy remains very difficult, since it requires a high level of professional training from the law enforcer. Despite a fairly good theoretical development of this issue and its legislative consolidation, law enforcement authorities unreasonably rarely and very carefully make decisions motivated by the use of the analogy of the law or the analogy of law. In our opinion, a similar situation in administrative and judicial practice has developed due to certain difficulties that a law enforcement officer faces when qualifying a gap in law as a legal basis for applying law by analogy, as well as when establishing the limits of such law enforcement. By virtue of Article 13 of the Arbitration Procedure Code of the Russian Federation in cases where disputed relations are not directly regulated by federal law and other regulatory legal acts or by agreement of the parties and there is no business custom applicable to them, to such relations, if this does not contradict their essence, arbitration courts apply the rules of law governing similar relations (analogy law), and in the absence of such norms, they consider cases based on the general principles and meaning of federal laws and other regulatory legal acts (analogy of law). In this norm, the legislator formulated legal definitions of the analogy of law and analogy of the law, and also established the legal grounds for the application of law by arbitration courts Similarly. On the issue of the limits of the application of law by analogy, he turned out to be very brief, indicating that this law enforcement should not contradict the essence of the disputed relations. The gap in law as the basis for the application of law by analogy: questions of qualification. Today, taking into account the needs of legal practice, the problem of law gaps narrows to problems of making a decision on a specific case in case of establishing a gap in the law. Therefore, the question of qualifying a gap in law is very relevant. In the legal literature, a gap in law is traditionally defined as the absence of a rule of law or a normative act. From the point of view of the legislator, this is a situation where disputed relations are not regulated by federal law and other regulatory legal acts or by agreement of the parties, and there is no business custom applicable to them (Article 13 of the Arbitration Procedure Code of the Russian Federation). According to the author, the above definition does not contain all the essential features of this phenomenon. Highlighting a gap in law, one must take into account its inherent mandatory features.1. A gap in the law should be understood as the absence of not any rule of law, namely, the rule of law that directly regulates the social relation considered by the law enforcer. In this matter, arbitration courts often make mistakes. When considering the legality of a court ruling to terminate proceedings in an insolvency (bankruptcy) case, the arbitration court of the appellate instance erroneously qualified the situation as a gap in law and applied, by analogy, Art. 49 of the Arbitration Procedure Code of the Russian Federation (Decree of the Arbitration Court of the Republic of Komi dated December 5, 2005 No. A29-4853 / 05-ZB). Since the applicant in the bankruptcy case filed a petition with the court to terminate this production , assessing the legitimacy of the adoption by the court of refusal to declare a person insolvent, the court was guided by paragraph 4 of part 1 of Art. 150 of the Arbitration Procedure Code of the Russian Federation (the arbitration court terminates the proceedings if it establishes that the plaintiff has abandoned the claim and the refusal has been accepted by the court), as well as Part 5 of Art. 49 of the Arbitration Procedure Code of the Russian Federation (the arbitration court does not accept the plaintiff's waiver of the claim if it violates the rights of other persons). The latter norm is general, it directly regulates the acceptance by the court of a waiver of a claim (application) for all types of arbitration proceedings. Thus, in the situation under consideration, there is a rule of law that directly regulates the disputed relationship, and the court had no legal grounds for applying the law by analogy. the rule of law is its ability to establish the rights and obligations of the participants in the relationship. Direct regulativity is the correspondence of the conditions of the hypothesis of the rule of law to the qualifying circumstances of an individually defined social relation. When qualifying, the law enforcer first establishes the objective and subjective circumstances of the case, and then searches for the rule of law. The search is carried out by establishing a correspondence between the circumstances of the case and the circumstances that the legislator modeled in the hypothesis of the rule of law. Only as a result of such intellectual and volitional activity can a gap in the law be established. When considering a case on a statement of claim of one consumer society against another, the court found that the Law of the Russian Federation “On consumer cooperation (consumer societies, their unions) in the Russian Federation” does not contain norms regulating the procedure for making transactions by consumer cooperatives, including transactions with interest (Decree of the Arbitration Court of the Republic of Komi dated July 28, 2004 No. A29-1453 / 04-2e). Meanwhile, it followed from the case materials that the agreement on the transfer of property was signed by both parties by the same person who held the position of chairman of the council of the aforementioned consumer cooperatives. When resolving the dispute, the court correctly identified a gap in the legislation on consumer cooperatives and applied, by analogy, the norms of the legislation on limited liability companies and joint-stock companies in terms of a special procedure for concluding interested party transactions. A gap in law occurs when there is no rule of law (rule of conduct) that directly regulates a specific social relationship not only in a certain regulatory document, but also in the system of law as a whole. At the same time, it should be taken into account that the absence of this norm in a separate normative act does not at all mean its absence in another law, regulatory agreement, legal practice. The basis for the application of law by analogy is a gap in the law, but not a gap in the law. In science, different positions have been formed on this issue. S. F. Kechekyan understands a gap in the law as a situation where a normative act, regulating public relations in general form , leaves some aspects of these relations without legal mediation, while it should be in this normative act. And in the complete absence of a normative act, i.e., where certain relations have not received their consolidation by law even in a general form, there is a gap in the law. Accordingly, to overcome the first type of gaps, the analogy of the law is used, and for the second type of gaps, the analogy of law, since the analogy of the law is not applicable. V. Lazarev, on the contrary, identifies a gap in law with a gap in law and emphasizes that “gaps in laws, legislation are gaps in law and vice versa”, since the term “legislation” is used in the broadest sense of the word as a system of normative instructions issued by competent authorities. law-making bodies. The author proposes to distinguish between a gap in law and a gap in law. The latter should be understood as the absence of a rule of law directly regulating public relations in a separate normative legal act (law in the broad sense of the word), while by virtue of the subject of this law, the missing norm should be contained in it. With this understanding, a gap in the law as a legal phenomenon is wider than a gap in the law. In certain cases, the missing rule of law may be contained in another law, and such a situation cannot be qualified as a gap in the law. If there is a gap in the law without signs of a gap in the law, the law enforcement officer makes a decision on the case through the subsidiary application of law. In the domestic legal system, we are faced with two options for a gap in the law (in the absence of a gap in the law). Firstly, when the legislator saves normative material and deliberately provides for a gap in the law. At the same time, the law expressly establishes the subsidiary application of the law. For example, in the Family Code of the Russian Federation there are no rules of law regulating the procedure for changing and terminating a marriage contract (we are dealing with a gap in the law). But this situation cannot be qualified as a gap in the law, since, by virtue of the prescription of paragraph 2 of Art. 43 of this Code, a marriage contract may be changed or terminated on the grounds and in the manner established by the Civil Code of the Russian Federation for changing and terminating the contract. Here, the competent authority will subsidiarily apply the norms of another law, following the will of the legislator. One of the advantages of the current arbitration procedural law is its conciseness, which is primarily ensured by the rules prescribing the subsidiary application of the provisions of section H “Proceedings in the arbitration court of first instance. Claim proceedings” of the Arbitration Procedure Code of the Russian Federation for the regulation of other types of proceedings in the arbitration court, in particular, the provisions of Part 1 of Art. 197, h. 1 st. 202, h. 1 st. 217, part 1 of Art. 266, part 1 of Art. 284.Secondly, a gap in the law may appear in connection with the violation of such requirements of law-making techniques as the completeness of legal regulation and the consistency of the law with other normative acts. For example, banks and other credit institutions, referring to the preservation of banking secrecy, refused to inform the bailiffs of information about cash, bank accounts and bank deposits their clients, who were debtors under executive documents, since for hours. 4 Article. 26 of the Federal Law "On banks and banking activities" statements on accounts and deposits individuals are issued by him, the courts, and, if the prosecutor agrees, - to the preliminary investigation bodies in cases in their proceedings. At the same time, the provisions of paragraph 2 of Art. 12, paragraph 2 of Art. 14 of the Federal Law "On bailiffs" include bailiffs-performers among the subjects with access to bank secrecy. Bailiffs send requests to banks and other credit organizations about the presence of debtors - individuals of accounts and deposits on the basis of these rules. This situation is erroneously qualified as a conflict of law. To establish this, two rules of law are required that regulate the same relationship in different ways. Since in the above example, the Federal Law “On Banks and Banking Activities” does not contain a norm regulating relations between a bank and a bailiff regarding the provision of information constituting bank secrecy, there is also no legal conflict. The current situation is nothing more than a gap in the law : the legislator did not include in part 4 of Art. 26 of the Federal Law "On banks and banking activities" of the bailiffs. When solving a particular case, the law enforcement officer is guided by the norms of another regulatory document - the Federal Law "On bailiffs", establishes the obligation of the bank to provide the required information through the subsidiary application of the law, which is confirmed by the position on this issue of the Constitutional Court of the Russian Federation (Decree of 14.05.2003 No. 8-P). Thus, a gap in law is the absence of a rule of law (a rule that directly regulates the relationship in question) in the system of current law. A gap in the law is always a gap in the law, but a gap in the law is not always a gap in the law. The Arbitration Court of the Ivanovo Region (decision No. place is just a gap in the law. The museum-reserve filed a lawsuit to transfer the rights of the buyer to the real estate object (historical and cultural monument), motivated by the fact that he has the right of pre-emption. When determining the limitation period, the court applied by analogy established in paragraph 3 of Art. 250 of the Civil Code of the Russian Federation for a three-month period and, on the basis of missing the term of protection, refused to satisfy the stated requirement. The court of appeal, overturning the decision of the court of first instance, also considered that there was a gap in the law, and motivated its conclusion about the three-year limitation period by referring to Art. 6 of the Civil Code of the Russian Federation. Meanwhile, in Art. 54 of the Federal Law “On the Museum Fund of the Russian Federation and Museums in the Russian Federation” establishes the specifics of making transactions in relation to museum items and museum collections, including preemptive right their purchases from the state. The absence in the said Law of the norm on the limitation period is not a gap in the law, since the norms of this article regulate property relations that are the subject of civil law, and in Art. 196 of the Civil Code of the Russian Federation there is a rule that establishes a limitation period for the protection of civil rights, including the right to preferential purchase of a monument of history and culture.3. A gap in law is not any absence of a rule of law; we are talking about the absence of a rule of law to regulate the relationship that is included in the subject of legal regulation. The author agrees with the statement that “a gap in the law is a gap in the content of the current law in relation to the factors of public life that are in the sphere of legal influence.” This feature should be taken into account when qualifying a gap in the law in practice. It allows you to distinguish between a gap in law from a related phenomenon - an imaginary gap or qualified silence of the legislator. It is well known that the range of public relations regulated by the state is much narrower than the totality of relations existing in society. The legislator includes in the sphere of legal regulation only volitional, typical and significant public relations for him and society. difficulties. For example, in Art. 264 (281) APCRF, there is no such basis for returning an appeal (cassation) complaint as filing a complaint directly, and not through the court of first instance that made the decision, in violation of the requirements of Part 2 of Art. 257 (part 2 of article 274) of the Code. Such a provision is assessed as a qualified silence of the legislator, which, in our opinion, is erroneous, since all procedural relations are legal, that is, they are within the scope of legal regulation. We believe that in this case, the legislator, having established a public obligation, did not provide for this subject legal consequences in case of non-compliance. And the position of the law enforcement officer is more correct when he returns the appeal (cassation) complaint, applying the analogy of the law, namely the norm of paragraph 1 of part 1 of Art. 129 of the Arbitration Procedure Code of the Russian Federation (the dispute is not subject to consideration in this court, since the case materials are in another court). The only thing is that the judicial act cited as an example is motivated by reference to Part 1 of Art. 284 of the Arbitration Procedure Code of the Russian Federation, which, according to the author, is not entirely accurate, since the grounds for the return of the cassation appeal are established in Part 2 of Art. 1 st. 281 APC RF (special norm). Thus, there is a gap in the legal regulation of this issue and the rule governing the grounds for the return of the statement of claim is applied by analogy with the law, and not subsidiarily. In practice, difficulties arise with the definition of the scope of legal regulation. In our opinion, the scope of legal regulation is determined by the starting operational norms, in which the legislator establishes the subject of legal regulation. In the above example, the subject of regulation of the arbitration procedural law is outlined in Art. 1 of the Arbitration Procedure Code of the Russian Federation, according to which this Code regulates the administration of justice in the field of entrepreneurial and other economic activities. If a complaint is sent directly to a higher instance, bypassing the court of first instance, it is objectively impossible to administer justice in the appellate and cassation instances without case materials. So, a gap in law is the absence in the system of current law of a rule of law that directly regulates public relations, which is included the scope of legal regulation. The similarity of public relations as the basis for applying the analogy of the law. According to part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, the analogy of the law is the application by the court of the rules of law governing similar relations in the event of a gap in the law. The most difficult in practice, including judicial, is the problem of establishing the similarity of relations: the first (for which a gap is established) and the second, which is directly regulated by the rule of law. We believe that this should be done, guided by some general theoretical rules. First of all, one should take into account the nature of the analyzed relations, their legal nature. Similarity cannot be established between public law and private law relations, just as material, material procedural and procedural relations cannot be recognized as similar. Relations can be recognized as similar only if the subject and method of legal regulation coincide. government agencies. In addition, information is provided on the number and age of students. Having established a gap in the law (the absence of a rule of law regulating the procedure for calculating the percentage of enrolled children under the age of 18 for the purposes of calculating pensions for teachers) and the similarity of these social relations, the court applied the analogy of the law. State Statistical Supervision No. 2-NK “Information on the State and Municipal Secondary Specialized Educational Institution or Higher Educational Institution Implementing Secondary Vocational Education Programs”, approved by the Decree of the Federal State Statistics Service No. 27 dated May 3, 2005, the court established the obligation of the educational institution to submit to the pension authority information about students under the age of 18 as of October 1 of the reporting year in accordance with the number full years at the beginning of the calendar year. The absence of a legislative prohibition as a basis for applying the law by analogy. The analogy of law and the analogy of the law are technical and legal techniques that are allowed by the legislator and to which the law enforcer is obliged (forced) to resort if a gap is established in legal regulation. Analogy in law can be material ( the norm of substantive law is applied to regulate the relevant relations) and procedural (the norm of procedural law is applied to regulate relations on the state-compulsory imposition of sanctions). Based literal sense Part 6 Art. 13 of the Arbitration Procedure Code of the Russian Federation, as well as a systematic interpretation of all the provisions of this article, the legislator allowed arbitration courts to apply only a substantive legal analogy. Such a position of the legislator from the point of view of the theory of legal regulation is illiterate, and from the point of view of arbitration practice it is ineffective. In addition, this imperative requirement of the legislator comes into conflict with the protective (establishing measures of legal liability for an offense) norms of administrative and tax legislation applied by arbitration courts. It is well known that it is prohibited to qualify an unlawful act as an offense by analogy with law. Secondly, the ineffectiveness of the analyzed norm is evidenced by the fact that it is rarely applied by arbitration courts. In particular, when resolving a case by analogy, the courts do not refer to Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, but on the provisions of civil, financial legislation. Meanwhile, the ban on the use of procedural analogy in Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation is absent. We believe that the absence of a ban on the use of analogy in one or another legislation should be understood as the possibility of applying analogy primarily in procedural law, since the denial of judicial protection on the grounds of unsettled procedure is contrary to the meaning and purpose of regulatory law in general and procedural law in particular. Accordingly, the provision h. 6 Article. 13 of the Arbitration Procedure Code of the Russian Federation should be interpreted broadly: arbitration courts apply the analogy of law and the analogy of law if the disputed material relations, as well as procedural relations, are not directly regulated by federal law and other regulatory legal acts, there is no business custom applicable to them. In the discussion about the possibility application of law by analogy in a situation where the legislator does not allow it, but does not prohibit it in a certain branch of legislation, in our opinion, one should be guided by the general theoretical provision on the prohibition of resolving a case by analogy only in the question of qualification, imputation of an offense, which is the basis for imposing legal liability. The position of the law enforcement officer, set out in the decision of the Federal Antimonopoly Service of the Volga-Vyatka District (dated 05.12.2003 in case No. A11-4629 / 2003-K1-4 / 212), according to which the court found unfounded the argument of the applicant of the cassation complaint about the application by analogy of the statute of limitations (art. 4.5 of the Code of Administrative Offenses of the Russian Federation) to the relationship of imposition of penalties established in the legislation on enforcement proceedings, in our opinion, is incorrect. According to the applicant, by analogy with the law (part 6 of article 13 of the APC of the Russian Federation) established by Art. 4.5 of the Code of Administrative Offenses of the Russian Federation, a two-month period from the moment the offense was committed. As seen from the case file and established by the court, on April 8, 2003, the bailiff initiated enforcement proceedings on the basis of a writ of execution, inviting the debtor to voluntarily execute the court decision within five days. Voluntary execution on the part of the debtor did not follow, so the bailiff on 07.07.2003 issued a decision to impose a fine on the debtor in the amount of 100 minimum wages. These actions correspond to paragraph 1 of Art. 85 of the Federal Law “On Enforcement Proceedings”. The applicant's arguments about the need to apply the analogy of the law to this legal situation were considered by the court and rejected, since by virtue of Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, the analogy of the law is applied in cases where the disputed relations are not directly regulated by federal law. Relations in the field of enforcement proceedings are regulated by the Federal Law "On Enforcement Proceedings", which does not provide for a period for imposing a fine on persons guilty of failure to comply with the requirements of executive documents, so the possibility of applying sanctions is not lost during the entire period of enforcement proceedings. In our opinion, procedural relations, including the procedure for imposing a fine on persons guilty of failure to comply with the requirements of executive documents, cannot proceed indefinitely. The functional purpose of the legal procedure is to ensure the effectiveness of the implementation of the sanctions of protective norms while observing the guarantees for the protection of persons held liable. We believe that this situation is nothing more than a gap in the law, and, resolving the case, the court is obliged to apply the analogy of the law. So, with In view of the foregoing, the law enforcer, including arbitration courts, when resolving court cases by analogy, must take into account the following legal grounds: the presence of a gap in the law; the existence of a rule of law governing similar relations; the absence of a direct legislative prohibition on resolving a disputed issue by analogy. Arbitration practice No. 1, 2007