According to Part 4 of Art. 1 of the Code of Civil Procedure of the Russian Federation, in the absence of a norm of procedural law regulating relations arising in the course of civil proceedings, the courts apply the norm regulating similar relations (analogy of law), and in its absence they act based on the principles of administration of justice (analogy of law). Thus, in civil proceedings, the legislator positively resolved the issue of the admissibility of the analogy of procedural rules.

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

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

This position is sometimes accepted by judicial practice.

Thus, in the resolution 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 the judicial act by which legal costs were recovered from the prosecutor’s office in favor of the defendant, the court formulated the following position:

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

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

An example of the application of the rules of the Arbitration Procedure Code of the Russian Federation by analogy was given by the Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 1 of Information Letter dated December 22, 2005 No. 96 “Review of the practice of consideration by arbitration courts of cases on the recognition and enforcement of decisions of foreign courts, on challenging decisions of arbitration courts and on the issuance of writs 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 executive 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 the 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 violating these requirements are not provided for in Chapter 31 of the Arbitration Procedure Code of the Russian Federation.

In accordance with Part 6 of Article 13 of the Arbitration Procedure Code of the Russian Federation, in cases where disputed relations are not directly resolved federal law and other regulatory 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 (analogy of law).

Consequently, the question of the procedural consequences of failure to submit necessary 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 the proceedings that it was filed in violation of the requirements of Articles 125 and 126 of the Code, makes a decision to leave the application without progress.”

In favor of the admissibility of the analogy of procedural rules in the arbitration process, an argument can be made 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 No. 76-O dated March 16, 2006 indicated that:

“The use of the analogy of law is due to the need to fill gaps in the legal regulation of certain relations. The establishment of such a right in part four 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 civil proceedings. However, based on the desire for convergence of the civil and arbitration processes (which also occurs), such a position would be logical to extend to the arbitration process.

Colleagues! Do you think it is permissible to apply procedural rules by analogy in the arbitration process? Why?

Have you encountered the use of analogies of procedural rules in arbitration proceedings? In what situations?

In accordance with Art. 183 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of first instance, at the request of the applicant, indexes the amounts awarded on the day of execution of the court decision, in cases and in amounts that are provided for by federal law or agreement. This article contains references to other federal laws or agreements of the parties, which may make its use difficult. Letter of the Supreme Arbitration Court of the Russian Federation dated May 25, 2004 N S1-7/UP-600 “On federal laws that are applied by arbitration courts in accordance with the reference rules contained in the Arbitration Procedural Code of the Russian Federation” contains a list of federal laws that can be applied to this rule in as a basis for indexing. However, the information contained in this letter is not of a normative nature and is used as methodological material.

4.1. Conclusion from judicial practice: Norms Art. 811 of the Civil Code of the Russian Federation are not applied by analogy to the law for indexing amounts collected by court decision.

Arbitrage practice:

Resolution of the Federal Antimonopoly Service of the Ural District dated February 16, 2005 N F09-226/05-GK

"...As follows from the case materials, by the decision of the Arbitration Court of the Kurgan Region dated 01/09/2002, which entered into legal force, 7287 rubles 06 kopecks were recovered 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.

Based on this decision, a writ of execution was issued.

Entrepreneurs Kalinina T.L. and Kalinina E.A. appealed to the court with an application for indexation of the amounts collected by the court decision, citing the long-term failure of Kankar LLC to comply with the judicial act.

According to Part 1 of Art. 183 of the Arbitration Procedural Code of the Russian Federation, the arbitration court, at the request of the claimant, indexes the amounts 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 agreement.

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

At the same time, the court came to the correct conclusion that in fact the collector is raising the issue of collecting interest for the use of someone else’s money, which is subject to consideration in the manner of claim proceedings, and not at the request of the collector on the basis of the norms of the Arbitration Procedural Code of the Russian Federation.

The applicant’s argument that in this dispute the court could have applied, by analogy, Art. Art. 809, 811 of the Civil Code of the Russian Federation, regulating similar legal relations in the loan agreement, is rejected as legally untenable.

These rules regulate the relationship with respect to the payment of interest on the loan amount in the form of a fee for providing the loan amount and the payment of interest for failure to fulfill a monetary obligation, provided for in Art. 395 of the Civil Code of the Russian Federation, which are not similar to the legal relations that arise when paying a debt on the basis of a judicial act that has entered into legal force, therefore, their application by analogy to controversial legal relations is impossible. The interest provided for in Art. Art. 809, 811 of the Civil Code, are recovered within the framework of the claim proceedings, and the indexation of the awarded amounts is carried out at the request of the claimant in the context of the procedural norms of the Arbitration Procedural Code of the Russian Federation, governing the procedure for the execution of judicial acts of the arbitration court..."

Current legislation regulates a huge number of social relations. However, some of them are still not legally established. This situation is quite normal, since legislative 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 within the scope of regulatory regulation. In such situations they talk about gaps in the law. To overcome them, two tools are provided: the analogy of law and law. In civil legislation, 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 law in civil law is used in cases where there is no norm regulating the relationship in question, but there is a legal provision regulating similar interactions.

The second important tool for bridging gaps is the analogy of law. There are not many examples of the application of this institution in civil law. This tool is used in cases where there are no rules governing the relationship in question and similar to them.

Prerequisites

If we analyze any example of an 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 a dispute is not regulated by agreement 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, 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 use of the analogy between civil legislation and civil law is primarily due to the diversity of legal relations. The Civil Code cannot contain rules regulating all interactions that arise between participants in the turnover. Accordingly, the legislative bodies were faced with the question: 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.

Explanations of the norm

Article 6, paragraph 1, establishes that if any relationship is not directly regulated by agreement or regulations, and there are no customs applicable to them, then the analogy of law is applied to such interactions. In civil procedural law, the use of this institution is becoming increasingly relevant.

According to the second paragraph 6 of the article, if it is impossible to apply an analogy of 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

Let's consider one of the illustrative examples of the use of analogy in civil procedural law.

Article 38 (clause 2) establishes the possibility of concluding an agreement on the division of property of spouses, according to which, as under a marriage contract, all valuables can be transferred into the ownership of a spouse who does not have credit obligations. This provision does not contain a requirement for 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 possession, since by agreement he transferred it to his spouse. In such situations in judicial practice provisions of the Insurance Code are often applied by analogy with the law.

Therefore, the spouse must inform his creditors about the modification, 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 establishes the right of the actual educator of a child who has supported a minor for a long time, upon the onset of incapacity for work or in other cases of need, to receive maintenance from the former pupil. However, the relationship between these entities in the UK is not regulated. It appears that when a dispute arises, the responsibilities and legal options of the actual educator and the parents are similar. The latter, in turn, are enshrined in Articles 63-65 of the IC. Accordingly, in controversial cases, the analogy of law can be applied.

Housing legislation

The principles of application of the institution 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 legal relations are not regulated by the code or agreement of the parties, then in the absence of civil law or other norms directly regulating them, the provisions of the Housing Code are applied, defining similar interactions. At the same time, the use of analogy should not contradict the essence of the relationship itself.

Other cases

Another example of using the institution 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 bankruptcy rules, despite the fact that there is no talk of insolvency.

Another example is that if defects are identified in an item received as a prize, their elimination is carried out in the manner prescribed for correcting defects in products purchased under a sales contract.

Application of civil law by analogy

It should be based on the core principles of the industry. The Civil Code 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 implementation of rights;
• guarantees of protection and restoration of violated interests.

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

Arbitrage practice

The specifics of using the institution of analogy of law in civil proceedings are revealed in the decisions of the highest courts. Thus, in the ruling of the Constitutional Court dated April 10, 2003, this legal instrument was used when interpreting the norms.

The case was related to the verification of the constitutionality of the provisions of paragraph 1 of paragraph 84 of Article No. 208 of the Federal Law. Using an analogy, the Constitutional Court came to the conclusion that this norm should be interpreted in conjunction with paragraph 2 of Art. 166 of the Civil Code, as implying the right of shareholders to submit claims to the court regarding the commission of which there is an interest.

The application of the institution 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 law.

Credit relations

Let's consider another example of an analogy of law in civil law.

In one of the disputes, the bank was prohibited from filing an appeal against a court decision, which refused to satisfy the demands for recovery of the defendant’s property.

In accordance with the case materials, 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 the citizen bought vehicle and entered into a collateral agreement with the bank.

The credit institution went to court due to the defendant’s improper fulfillment of his loan repayment obligations. The bank demanded to collect 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 loan amount. As a result, the bank filed a new application to recover the car, which now belongs to the new owner. Meanwhile, the plaintiff did not provide the necessary evidence of his arguments and missed the statute of limitations. Accordingly, at first instance his claim was rejected.

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

Based on the provisions of paragraph 1 of Article 348 of the Civil Code, foreclosure on property pledged is permitted if the debtor does not fulfill or improperly fulfills his 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 remains valid. The first instance could satisfy the applicant's demands based on the specified 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 compensation. 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 purchaser.

The definition stated that, in accordance with the requirements of reasonableness, fairness, good faith, in accordance with the analogy of law, foreclosure on a pledged movable object cannot be applied if it was acquired for compensation, and the acquirer did not know and should not have known that the property is located in pledge.

Dispute in legal practice

A fairly illustrative example of an analogy is the case of the defense attorney’s appeal 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 filed a claim for compensation for moral damages resulting from the untimely payment of compensation for defense in a criminal case as assigned. The plaintiff substantiated his claims as follows.

The applicant indicated that a lawyer cannot refuse to work as assigned when carrying out work. Consequently, the norms of the Labor Code apply to it. Accordingly, the applicant asked the court to resolve the situation using analogy of law.

The first instance, however, considered that the norms of the Labor Code do not apply to the activities of the defense lawyer. Issues related to the payment of remuneration are regulated by a special law “On Advocacy”. Based on this, civil legal relations are established between the defender and the state.

It follows from this that the provisions of the Labor Code regulating the procedure for collecting damages for unlawful actions of the employer do not apply to the situation under consideration.

As the court explained, the institution of analogy of law is applicable only in the absence of direct regulation of the relevant relations in legislation. The case under consideration is regulated by a special normative act. Accordingly, the lawyer’s request was denied, and the appellate court 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 in the norms is discovered, the provisions of the Constitution and international legal acts are subject to application.

In civil law, the use of any analogy (law or law) is allowed if there is no normative regulation of specific relations. In this case, greater priority is given to custom and agreement.

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

There are certain restrictions on the use of operative generalizations and synthesized rules in a deductive manner, like the rules of statutes. Deductive reasoning by itself is rarely used in deciding whether a case falls within the scope of a rule derived from a prior case, unless the subsequent case contains the same facts and circumstances as the prior case. Thus, judges hearing Case No. 2 (fraudulent acquisition of a boat) may read and re-read the operative summary in 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. Judges must establish similarities and differences between the factual circumstances in Case No. 2 and the factual 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 justifying a court decision by analogy with previously established precedents

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

To decide whether to follow a previously established precedent or to consider a case legally different from an earlier established precedent, the court must every day resort to simple analogical reasoning. As an example that anyone with children can understand, let's say you decide to let your ten-year-old stay up until 10pm (on weekends). Your six-year-old daughter felt a pang of injustice, as she was forced to go to bed at 8 pm. She asks you to let her stay up until 10 pm, citing the fact that you allowed her ten-year-old sister to do this. Based on precedent, your six-year-old daughter points out the similarity of facts in the 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 In the case of the eldest daughter, this is because you have decided that the age difference between the children is more important than any other similarity between them. The distinction is important because age is directly related to the issue you are deciding: the time at which children should go to bed. Age differences are important in determining bedtime, as young children need more sleep.

Of course, the most difficult part of analogical reasoning is judging the importance of differences or similarities. This question of importance cannot be resolved in the abstract. The importance is situational and depends on the issue you need to solve. In the example with children, permission is denied youngest child staying up later 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 bedtime. 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 court decision directly by analogy with previously established precedents

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• Answers to the exam on 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 current criminal procedure legislation 4.

T. A. SCHELOCAYEVA, “Legal basis 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 to high level professional training. Despite the fairly good theoretical development of this issue and its legislative codification, law enforcement agencies unjustifiably rarely and very carefully make decisions motivated by the use of an analogy of law or an 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 the fairly good theoretical development of this issue and its legislative codification, law enforcement agencies unjustifiably rarely and very carefully make decisions motivated by the use of an analogy of law or an analogy of law. In our opinion, a similar situation in administrative and judicial practice has arisen due to certain difficulties that the law enforcer faces when qualifying a gap in the law as a legal basis for applying the 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 practice applicable to them, to such relations, unless this contradicts 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 normative legal acts (analogy of law). In this norm, the legislator formulated legal definitions of the analogy of law and analogy of law, and also established the legal grounds for the application of law by arbitration courts Similarly. On the issue of the limits of application of the law by analogy, he turned out to be very brief, pointing out that this application of law should not contradict the essence of the disputed relations. The gap in the law as a basis for the application of the law by analogy: questions of qualification. Today, taking into account the needs of legal practice, the problem of the gap in the law is narrowed to problems of making a decision on a specific case if a gap in the law is identified. Consequently, the question of qualifying a gap in the law is very relevant. In the legal literature, a gap in the 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 when controversial relations are not regulated by federal law and other regulatory legal acts or agreement of the parties and there is no business practice 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. When highlighting a gap in the law, one must take into account its inherent mandatory features.1. A gap in the law should be understood as the absence of not just any rule of law, but rather a rule of law that directly regulates the social relationship considered by the law enforcer. In this matter, arbitration courts often make mistakes. When considering the legality of the court’s ruling to terminate insolvency (bankruptcy) proceedings, the arbitration court of appeal erroneously qualified the situation as a gap in the law and applied by analogy Art. 49 of the Arbitration Procedure Code of the Russian Federation (resolution of the Arbitration Court of the Komi Republic dated December 5, 2005 No. A29-4853/05-ZB). Since the applicant in the bankruptcy case applied to the court with a petition to terminate of this production , assessing the legality of the court’s acceptance of the refusal of an application 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 determines that the plaintiff abandoned the claim and the refusal was 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 refusal of the claim if it violates the rights of other persons). The last rule is general; it directly regulates the court’s acceptance 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 basis for applying the law by analogy. Regulatory rules of law are its ability to establish the rights and obligations of participants in relations. Direct regulativeness is the correspondence of the conditions of the hypothesis of a rule of law to the qualifying circumstances of an individually defined social relationship. When qualifying, the law enforcement officer 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 based on a 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 consumer cooperatives to carry out transactions, including interested-party transactions (resolution of the Arbitration Court of the Komi Republic dated July 28, 2004 No. A29-1453/04-2e). Meanwhile, from the case materials it followed 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 board of the mentioned 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 regarding the special procedure for concluding interested-party transactions.2. A gap in the law occurs when there is no rule of law (rule of behavior) that directly regulates a specific social relationship not only in a specific normative document, but also in the legal system as a whole. It should be taken into account that the absence of a given norm in a separate normative act does not mean its absence in another law, normative agreement, or legal custom. The basis for applying the law by analogy is a gap in the law, but not a gap in the law. Different positions on this issue have been formed in science. S. F. Kechekyan understands a gap in the law as a situation where a normative act, regulating social relations in general form , leaves some aspects of these relations without legal mediation, while it should be precisely in this normative act. And in the complete absence of a normative act, i.e. where, even in a general form, certain relations have not been formalized by law, there is a gap in the law. Accordingly, to overcome the first type of gaps, the analogy of law is used, and for the second type of gaps, the analogy of law, since the analogy of law is not applicable.B. V. Lazarev, on the contrary, identifies a gap in the law with a gap in the 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 regulations issued by competent rule-making bodies. The author proposes to distinguish a gap in the law from a gap in the 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 due to the subject matter of this law, the missing rule must 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 enforcer makes a decision on the case through the subsidiary application of the 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 regulatory material and deliberately provides for a gap in the law. At the same time, the law directly establishes the subsidiary application of 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 instructions 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 a contract. Here, the competent authority will subsidiaryly apply the norms of another law, following the will of the legislator. One of the advantages of the current arbitration procedural law is its brevity, 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 to regulate other types of proceedings in the arbitration court, in particular the provisions of Part 1 of Art. 197, hours 1 tbsp. 202, h. 1 tbsp. 217, part 1 art. 266, part 1 art. 284.Secondly, a gap in the law may appear in connection with a violation of such requirements of law-making technology as the completeness of legal regulation and the consistency of the law with other regulations. For example, banks and other credit organizations, citing the preservation of bank secrecy, refused to provide bailiffs with information about cash, bank accounts and bank deposits their clients who were debtors under writs of execution, since under Part 4 of Art. 26 Federal Law “On Banks and Banking Activities” certificates of accounts and deposits individuals are issued to them themselves, to the courts, and, with the consent of the prosecutor, to the preliminary investigation authorities in cases in their proceedings. At the same time, the provisions of paragraph 2 of Art. 12, paragraph 2, art. 14 of the Federal Law “On Bailiffs” classifies bailiffs as entities with access to bank secrecy. Bailiffs send requests to banks and other credit organizations about the availability of accounts and deposits for debtors - individuals on the basis of these rules. This situation is erroneously classified as a conflict of law. To establish this, the presence of two rules of law is required, regulating the same relationship in different ways. Since in the given example there is no rule in the Federal Law “On Banks and Banking Activities” regulating the relationship between the bank and the bailiff regarding the provision of information constituting bank secrecy, there is no legal conflict. The current situation is nothing more than a gap in the law : the legislator did not timely include in Part 4 of Art. 26 Federal Law “On Banks and Banking Activities” for bailiffs. When deciding a particular case, the law enforcement officer is guided by the norms of another regulatory document - the Federal Law “On Bailiffs”, which establishes the bank’s obligation 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 (Resolution No. 8-P dated May 14, 2003). 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 dated July 29, 2004 No. 27/9) erroneously qualified the controversial situation as a gap in the law, while it had the place is just a gap in the law. The museum-reserve applied to the court for the transfer of the buyer's rights to the property (historical and cultural monument), motivated by the fact that it had the right of first refusal. When determining the limitation period, the court applied, by analogy, that 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 protection period, refused to satisfy the stated requirement. The appellate court, overturning the decision of the first instance court, also considered that there was a gap in the law, and motivated its conclusion about the three-year limitation period by reference to Art. 6 Civil Code of the Russian Federation. Meanwhile, in Art. 54 Federal Law “On the Museum Fund of the Russian Federation and Museums in the Russian Federation” establishes the specifics of transactions in relation to museum objects and museum collections, including preemptive right their purchases from the state. The absence of a rule on the limitation period in the said Law is not a gap in the law, since the provisions of this article regulate property relations that constitute the subject of civil law, and in Art. 196 of the Civil Code of the Russian Federation there is a rule establishing a limitation period for the protection of civil rights, including the right of first refusal to purchase a historical and cultural monument.3. A legal gap is not any absence of a rule of law; we are talking about the absence of a rule of law to regulate a relationship that is 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 factors of social life that are within the scope of legal influence.” This feature should be taken into account when qualifying a gap in the law in practice. It makes it possible to distinguish a gap in the law from a related phenomenon - an imaginary gap or qualified silence of the legislator. It is well known that the range of social 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 strong-willed, typical and significant social relations for him and society. The absence of a rule of law to regulate a relationship that is outside the scope of legal regulation is not a gap, but the qualified silence of the legislator. In practice, the distinction between a gap in the law and the qualified silence of the legislator causes difficulties. For example, in Art. 264 (281) of the Administrative Code of the Russian Federation 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. This situation is assessed as qualified silence of the legislator, which, in our opinion, is erroneous, since all procedural relations are legal, that is, they fall within the scope of legal regulation. We believe that in this case the legislator, having established a public duty, did not provide for this subject legal consequences in case of non-fulfillment. And the more correct position of the law enforcement officer is when he returns the appeal (cassation) complaint, using 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 given as an example is motivated by a reference to Part 1 of Art. 284 of the Arbitration Procedure Code of the Russian Federation, which, in the author’s opinion, is not entirely accurate, since the grounds for returning the cassation appeal are established in Part. 1 tbsp. 281 Arbitration Procedure Code of the Russian Federation (special norm). Thus, there is a gap in the legal regulation of this issue and the rule regulating the grounds for returning a statement of claim is applied by analogy with the law, and not subsidiaryly. In practice, difficulties arise in determining 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 given 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 business and other economic activities. If a complaint is sent directly to a higher authority, bypassing the court of first instance, it is objectively impossible to administer justice in the appellate and cassation instances without the case materials. So, a gap in the law is the absence in the system of current law of a rule of law that directly regulates public relations, which is included in the sphere of legal regulation. The similarity of social relations as the basis for the application of the analogy of the law. According to Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, analogy of law is the application by the court of rules of law governing similar relations in the event of a gap in the law being identified. The most difficult thing in practical activity, including judicial activity, is the problem of establishing the similarity of relations: the first (in relation to which a gap has been 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.1. 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.2. Relations can be recognized as similar only if the subject and method of legal regulation coincide. The arbitration court saw the similarity of relations regarding the reporting of information about students to state statistics bodies and pension authorities, since they arise in connection with the fulfillment of the public duty to inform government agencies. In addition, information is provided regarding 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 students under the age of 18 for the purpose of calculating pensions for teaching staff) and the similarity of these social relations, the court applied the analogy of the law. Guided by the norm of paragraph 25 of the Procedure for filling out and submitting the federal form state statistical observation No. 2-NK “Information on state and municipal secondary specialized educational institutions or higher educational institutions implementing secondary vocational education programs”, approved by Resolution of the Federal State Statistics Service dated 05/03/2005 No. 27, the court established the obligation of the educational institution to submit to the pension authority information about studying children 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 the application of law by analogy. Analogy of law and analogy of law are technical and legal techniques that are permitted by the legislator and to which the law enforcer is obliged (forced) to resort if a gap is identified 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 regarding state-compulsory imposition of sanctions). Based literal meaning part 6 art. 13 of the Arbitration Procedure Code of the Russian Federation, as well as the systematic interpretation of all provisions of this article, the legislator allowed arbitration courts to apply only substantive legal analogy. This 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. Firstly, a substantive legal norm is formulated in the procedural law, which contradicts the principle of sectoral systematization of legislation. In addition, this imperative requirement of the legislator comes into conflict with the protective norms of administrative and tax legislation applied by arbitration courts (establishing measures of legal liability for an offense). It is well known that it is prohibited to qualify an unlawful act as an offense by analogy of 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, and on the provisions of civil and 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 using analogy primarily in procedural law, since the refusal of judicial protection on the grounds of unsettled procedure contradicts the meaning and purpose of regulatory law in general and procedural law in particular. Accordingly, the provision of Part 6 of Art. 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 in the event that disputed material relations, as well as procedural relations, are not directly regulated by federal law and other regulatory legal acts, and there is no business practice applicable to them. In the discussion about the possibility application of the 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 about the prohibition of resolving a case by analogy only in the matter 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 resolution 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 the applicant’s argument for applying a statute of limitations by analogy to be unfounded (Art. 4.5 of the Code of Administrative Offenses of the Russian Federation) to the relationship of imposing 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 Arbitration Procedure Code of the Russian Federation), a resolution to collect a fine from the debtor should be made in 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 can be seen from the case materials and established by the court, on 04/08/2003, the bailiff, on the basis of a writ of execution, initiated enforcement proceedings, inviting the debtor to voluntarily execute the court decision within a five-day period. Voluntary execution on the part of the debtor did not follow, so the bailiff on 07/07/2003 issued a decision imposing 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 an 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 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, therefore 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 sanctions and protective norms while maintaining guarantees for the protection of persons held accountable. We believe that the above situation is nothing more than a gap in the law, and when resolving a case, the court is obliged to apply the analogy of the law. So, with Taking into account the above, 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 presence of a rule of law regulating similar relations; the absence of a direct legislative prohibition on resolving a controversial issue by analogy. Arbitration practice No. 1, 2007