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Legal grounds for the application of law by analogy. Analogy of law in civil law: an example of application Court decision taken by analogy of law

Under section 102(9) RULPA Limited Liability Limited Partnership is a limited partnership whose certificate indicates that the Limited Partnership is a limited liability limited partnership.

Under section 406(b), the consent of all general partners is required to convert a Limited Partnership into a Limited Liability Limited Partnership.

The difference between this type of partnership and a limited liability partnership is that only participants who are still called "general partners" participate in the management of the partnership, while in the conduct of business activities on behalf of a limited liability partnership, according to general rule may be accepted by all its members.

Accordingly, the question arises of the need to introduce such organizational and legal forms of a legal entity in Russia as a limited liability partnership and a limited liability partnership. In our opinion, this question should be answered in the negative in the present period of development of the Russian economy.

The number of legal entities with limited liability of participants in the obligations of a legal entity should currently be limited, since it is this form that offenders most often use to commit both administrative and criminal offenses. In the future, when the level of legal awareness of Russians reaches the appropriate level, favorable conditions for the development of entrepreneurial activity, including in a similar form, this form can basically be borrowed from North American law. However, the legal status of this organization should be regulated taking into account Russian legal traditions.

In particular, it is hardly worth establishing a rule on the possible subsidiary liability of participants in a limited liability partnership for certain obligations of the organization if they express a desire to use it - this rule of law will turn out to be unrealizable. At the same time, the rules on subsidiary liability of participants in a Russian limited liability company can be applied and will become effective in relation to a limited liability partnership.

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UDC 343.1 EL. Farafontova

JUDICIAL PRECEDENT AND LEGAL ANALOGIES: PROBLEMS OF LAW ENFORCEMENT

The article is devoted to the role of judicial precedent among other sources of Russian law. Keywords Keywords: judicial precedent, analogy of law, analogy of law.

E.L. Farafontova

JUDICIAL PRECEDENT AND LEGAL ANALOGIES: PROBLEMS OF ENFORCEMENT

The article is dedicated to the role of leading case among the other source of Russian law.

Key words: judicial precedent, analogy of statute, analogy of law.

The problem of the analogy of law and the analogy of law has been and remains one of the debated issues of jurisprudence. Let's consider some of its aspects.

The need to apply legal analogies arises at the stage of law enforcement and is explained by the presence of gaps in the legislation. A gap in law should be understood as the absence of a specific rule necessary to regulate a relationship that is within the scope of legal regulation. The concept of "gap" in law or law is rather complicated, and there is no unambiguous interpretation of it in the legal literature, since the confusion of actual social relations with legal relations, and especially their inclusion in the concept of law, makes it difficult to clarify the issue of gaps.

V.S. Nersesyants gives the following definition: “A gap in law means the absence of such a rule of law, which, according to the meaning of the current law and the nature of the social relations regulated by it, is necessary to regulate these specific factual circumstances (actual relations) that are in the sphere of the established legal regulation” . The author believes that gaps can

be "not only in normative acts, but also in customs, judicial precedents". A.F. Cherdantsev proposes to understand the gap in law as "the absence of a rule of law, which should be in the system of law in terms of the principles and assessments of the law itself" . The specified author characterizes a gap in the law as a situation “when there is a fact, which by its nature is in the sphere of legal regulation, requiring legal resolution, but there is no rule of law providing for it” . Unlike the previous author, A.F. Cherdyntsev proposes to consider the principles and assessments of the law itself as the boundary of the phenomena included in the system of legal regulation.

From the point of view of O.E. Leist, a gap in law is a situation in which “facts or relations are not evaluated by law, but professional legal consciousness imperiously dictates the need for their legal qualification” . I.V. adhered to a similar approach to determining the essence of a gap. Mikhailovsky, who uses the concept of a gap in relation to situations in which "the actual circumstances of the case do not correspond to any of the descriptive parts (assumptions) of the current legal norms" . This led to the conclusion that the “gap in positive law” does not provide an answer to the question posed by life.

Thus, lawyers associate the approach to determining gaps in law either with a broad interpretation of the sphere of social relations that fall within the sphere of interests of legal influence, or that share the concepts of “a gap in law” and a gap in “law” and at the same time seek to limit the scope of social relations, subject to legal regulation.

Spaces can be different and classified:

by types of regulatory legal acts (in laws, in decrees of the head of state, in a government decree, in instructions from a ministry);

by the time of appearance (primary (initial), which arose at the time of the publication of regulatory legal acts, as a rule, as a result of the omission of law-making bodies, and subsequent (secondary), which appeared after the publication of legal acts, in the process of developing public relations);

according to the structural elements of the legal norm (a gap in the hypothesis, a gap in the disposition, a gap in the sanction).

IN AND. Akimov divides the gaps into legislative (relations that for some reason are not regulated by the legislator) and technical (arising due to the fact that the court has not been given all the necessary instructions to resolve a particular issue).

V.V. Lazarev distinguishes among other types of gaps intentional, deliberately left by the legislator.

Some authors consider gaps in law depending on the volume and point either to the complete absence of normative acts regulating a separate set of social relations that require fixing by law, or to the presence of a normative act by which the legal relationship is not sufficiently regulated.

The objective reason for the emergence of gaps in the law is the dynamic nature of the development of public relations in social sphere to which the legislator as a whole has already extended his will. Society consists of numerous social groups that enter into various relationships with each other, science develops, new technologies arise, the clumsy state machine does not have time to fix changes and establish new rules of behavior. Thus, in a sense, the formation of subsequent gaps in the legislation is a natural phenomenon, although it is predictable.

Among the subjective reasons for the formation of legal gaps can be attributed the imperfection of the means of legal technique used in rule-making procedures, the inattention of the legislator, who did not cover the already existing circumstances by regulating the normative legal act.

Do not confuse legal gaps and discrepancy between the content, logical meaning and literal meaning of the text of the article. It is possible to understand the meaning that the legislator puts in a legal norm using various ways of interpreting the law.

The constitutional right of everyone to judicial protection implies the possibility of subjects of law to apply to jurisdictional bodies with a demand to restore or protect their violated or disputed right or legally protected interest. A citizen or legal entity cannot be denied the protection of their rights under the pretext of incompleteness, inconsistency or ambiguity of legal norms.

A way to overcome legal gaps are legal analogies - a widespread phenomenon in the law enforcement activities of the judiciary of any state. The application of the law is one of the forms of realization of the law and takes place where the addressees of legal norms cannot exercise their rights and obligations provided for by law without the power of the company.

patent government agencies and persons involved in the preparation and adoption of a decision on a legal case based on legal facts and specific legal norms. In the absence or incompleteness of the latter, it becomes necessary to use the analogy of law and law.

The analogy of the law is the application to a relation that is not regulated in a specific norm of a norm of the law that regulates similar relations. The need to apply this technique lies in the fact that a decision on a legal case must necessarily have a legal basis. Therefore, if there is no rule that directly provides for a disputed case, then it is necessary to find a rule that regulates relations similar to those in dispute. The rule of the found norm is used as a legal basis when making a decision on the case. The analogy of law means the application to such relations of general principles, the meaning and principles of legal regulation of the relevant branch of law.

The analogy of the law is rightly considered a simpler and, accordingly, more common form of legal analogies. And only if it is not possible to apply it, the analogy of law applies.

The Russian legislator differently considers the possibility of applying legal analogies in various branches of law. Traditionally, analogies are directly allowed by the norms of the branches of private law - civil (Article 6 of the Civil Code of the Russian Federation), housing (Article 7 of the Civil Code of the Russian Federation), family (Article 5 of the Civil Code of the Russian Federation), as well as civil procedure (part 4 of Article 1 of the Code of Civil Procedure RF), arbitration procedural legislation (part 6, article 13 of the Arbitration Procedure Code of the Russian Federation). A direct ban on the use of legal analogies is contained in the Criminal Code of the Russian Federation (part 2, article 3).

Does this mean that the analogy of the law is possible only in cases expressly provided for in the law itself? The answer to this question is given by the provisions of the procedural codes. According to part 3 of Art. 11 Code of Civil Procedure of the Russian Federation in the absence of the rules of law governing the disputed relationship, the court applies the rules of law governing similar relations (an analogy of the law), and in the absence of such rules resolves the case based on the general principles and meaning of the legislation (analogy of law). A similar norm is also fixed by Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation, but only for cases that do not contradict the essence of the relationship.

It should be noted that in connection with the constitutional introduction in Russia of the right to private property, the expansion of civil liberties, the scope of application of the analogy of the law is correspondingly narrowing. This is evidenced by the definition of analogy in the Civil Code Russian Federation: in part 1 of Art. Article 6 states that in cases where “relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to civil law governing similar relations (an analogy of the law)”. In civil law, therefore, for the application of the analogy of the law, the absence of a norm directly regulating the disputed relationship is not enough. It is also necessary that there is no agreement between the parties and the usual business practice applicable to the disputed case.

We believe that the list of circumstances limiting the use of legal analogy is incomplete. In the event that law enforcement authorities discover a gap in the legislation, judicial practice is also important, which acts as a legal precedent in the absence of regulatory regulation of a disputed relationship. According to A.A. Malyushin, “the court in this case, i.e. in the context of a gap that has been discovered in the regulatory and legislative system, in its law enforcement activities, it does not resort to analogy and to the involvement of international legal norms, but independently forms a norm, creates it within those necessary and legislative limits, compliance with which is an integral part of the very concept of "judicial discretion". While generally agreeing with this position, we note that the creation of a rule of law by the court is not the discretion of the court, but a judicial precedent. To be fully formalized as a precedent, it lacks only the binding nature of its application by other courts. However, if such a norm is created by a higher court, it will certainly be followed by lower courts, including when a gap is found in the legislation.

The question of the recognition of a precedent, and even more broadly - of judicial practice as a source of law, has been and is debatable in Russian legal reality. Among the rather numerous and varied arguments given in defense of the thesis about the non-recognition of legal precedent as a source of modern Russian law, the following are the most widely used.

First, the assertion that the recognition of judicial precedent as a source of law is contrary to the constitutionally recognized and enshrined principle of separation of powers. According to B.C. Nersesyants, judicial practice in all its manifestations “is, according to the current Constitution of the Russian Federation of 1993, not law-making, but only law-enforcement (and corresponding law-interpreting) activity. This clearly follows from the constitutional concept of the Russian legal statehood and the constitutional regulation of the principle of separation of powers into legislative, executive and judicial. G.N. Manova opposes "the concept of judicial

law-making, recognizing rule-making powers for judges” and believes that “the legislator has a wider social outlook and, accordingly, it is possible to take into account a much larger number of factors in the decision-making process.” As for the judges, they deal only with "a specific, even if typical, situation". Based on this, it is concluded that the judge will not be able to cope with rule-making functions as successfully as the legislator does.

Other authors have a different point of view. According to R.Z. Livshits, in real life As the experience of other countries that have long and fruitfully used the principle of separation of powers shows, there is no such strict, rigid, initially given division of the sphere of activity and functions of the various branches of power. It exists only in theory, but not in real life, in practice. The US Constitution, for example, provides that the judicial power extends only to "cases decided by law and in equity arising under this Constitution," the laws of the United States and international treaties concluded by them, as well as a number of other cases and disputes in which The United States is a party to disputes between two or more states, between a state and citizens of another state, and other similar cases. In other words, theoretically, according to the Constitution, the US judiciary performs "purely" judicial functions. In fact, along with judicial functions, in the person of the US Supreme Court, it simultaneously carries out law-making functions.

Secondly, the thesis that the supporters of this version explain the recognition of legal precedent as a source of Russian law by the characteristic features of the Romano-Germanic legal system, to which Russia is traditionally attributed, and which, according to some domestic scientists, does not know such a form of law, as a legal precedent. However, as the researchers note, studying the theory and practice of applying precedent in the group of countries of the Romano-Germanic system, it is necessary to state, on the one hand, the absence of a general concept of precedent, on the other hand, the recognition of the practical role of a court decision. For example, in Greece, formally, court decisions are not considered as a source of law, and the courts in their activities are not bound by legal precedent, as is the case in the Anglo-Saxon legal family. However, in practice, everything looks far from it. The researchers note that in the legal system of Greece, case law actually operates. This is manifested, on the one hand, in the fact that the Supreme Court of the country takes very important decisions in their nature, which are actually equated to a precedent. On the other hand, in their activities, the lower courts of Greece usually adapt to the decisions of the higher courts, although technically they are not bound by these decisions in any way.

Thirdly, the opinion that the recognition of a legal precedent would, on the one hand, contradict the current Constitution of Russia and ordinary legislation, and, on the other hand, would conflict with the law-making activities of the Federal Assembly.

Other jurists consider the acts of the judiciary to be the source of law. One should agree with the position of V.I. Anishina that in the adoption by the court of such decisions, which become generally binding for various subjects of law, there is no contradiction to the principle of separation of powers, since the main function of the legislator - rule-making is not transferred to the court and is not blocked by a court decision: the legislator has the right to himself on his own initiative at any time time to adopt the rules governing disputed relations, and he is not bound by a court decision. But the opinion of this author, who believes that the “legal positions” of the Constitutional Court of the Russian Federation, binding on the courts, can be contained not only in the resolutive part of the decisions, but also in the reasoning part of the decisions, and even in refusal rulings and rulings on termination of proceedings in the case, should be considered erroneous. According to E.A. Ershova, “the ruling of the Constitutional Court of the Russian Federation is not a court decision on the merits of the dispute (Article 71 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”). This conclusion is also consistent with the practice of the European Court of Human Rights, which renders court decisions on the merits of the dispute in the form of judgments. In some cases, the European Court of Human Rights adopts decisions on an accelerated procedure, but is not limited to interim court rulings, since before the dispute is considered on the merits, the participants in the process are heard and the case materials are examined, the “legal position” of the court cannot be developed in principle.

Recognize the legal precedent as a source of Russian law and other authors. “It is necessary to recognize de jure what exists de facto,” notes L.P. Anufrieva, “since the functioning of the domestic judicial system within the framework of existing and existing state legal structures convinces us that, in essence, it forms sources of law.” T.N. is more categorical about the role of judicial precedent. Neshataeva, in the words of which "in the Russian

In the European legal system, as in any continental system of law, precedent in one form or another has always existed as a source of law", for example, "the application of law or law by analogy" .

The problem of precedent was considered during the scientific and practical conference "Civil Legislation of Russia at the Present Stage: Problems and Ways of Development", held on February 14 and 15, 2002 in the Supreme Arbitration Court of the Russian Federation: "In the context of the problem of the formation of a harmonious system of civil legislation, the conference raised and the problem of precedent as a source of Russian civil law. In his report, Chairman of the Supreme Arbitration Court of the Russian Federation V.F. Yakovlev, when asked whether the precedent is currently a source of law, answered in the affirmative. "Today, we can safely say: the precedent, as a stable legal position created by the courts, works," he said. V.F. Yakovlev emphasized the special role played by judicial practice in the early 1990s. In the absence of the legal norms necessary for the development of market relations, it was forced to develop new legal precedents, which were subsequently used for a long period of time. With the advent of the first part of the Civil Code, the task of the courts was greatly simplified, and they created the law by way of its broad or restrictive interpretation, applied it by analogy. At the present time, according to the chairman of the Supreme Arbitration Court of the Russian Federation, "judicial practice has actually been elevated to the rank of law."

A similar position regarding the place of judicial precedent in the system of sources of Russian law was expressed by M.I. Braginsky. For his part, Professor William Simons, agreeing with the opinion of V.F. Yakovlev that "precedents are created by all courts of the judicial system and "arranged" in the highest courts", even proposed to introduce mandatory publication of all court decisions of courts of all levels as sources of law" .

Let us disagree with the opinion of the last author. Judicial practice is that side of the application of legal norms that is associated with the formation in the process of this application of any well-established provision specifying the legal norm, a set of similar decisions in similar cases, a peculiar form of law enforcement activity. In the Russian Federation, judicial practice, without giving rise to mandatory norms, has a certain impact both on the activities of the judicial system itself and on the legal system as a whole. But this does not apply to all parts of the judicial system.

There are two forms of expression of judicial practice in the Russian Federation:

1) in guiding explanations given by the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation on the application of legislation in the consideration of specific cases; clarifications of the highest judicial authorities are binding on the courts. These resolutions: a) adopted by the authorized body of the Russian state; b) contain rules of law, expressed in an abstract form, addressed to an unlimited number of persons falling under their action; c) designed for repeated use; d) are subject to mandatory publication. These properties of them make it possible to assume that they are sources of law;

2) in principle decisions on specific cases of courts of different levels, which are called the precedent of interpretation.

Judicial decisions certainly have a certain impact on the functioning of the mechanism of legal regulation. But their action extends to specific participants in the legal relationship, as well as any subjects of law regarding this particular case.

Disputes over the recognition of the Russian precedent as a source of law do not stop today. Speaking at the third Senate readings, the Chairman of the Supreme Arbitration Court of the Russian Federation A. Ivanov noted that the Russian judicial system has been moving "in the direction of precedent" since the plenums of the Supreme Arbitration Court and the Supreme Court received the right to interpret laws, and the Constitutional Court - to give a universally binding interpretation of the Constitution and to declare legislative norms unconstitutional. “It's just that the courts have chosen a certain model of work, and it inevitably entails the precedence of their legal positions. But the final transition to a precedent system is the right direction of movement, because there are many serious advantages in such a system. Among the advantages, Ivanov singled out three: the stability of legal positions, the opportunity for the judiciary to take a worthy place in the system of separation of powers, and a decrease in the influence of various judges on judges. external factors such as administrative pressure and corruption.

Regarding the statement of the Chairman of the Supreme Arbitration Court of the Russian Federation, the participants in the discussion expressed different opinions. Yu. Tolstoy, Professor of the Faculty of Law of St. Petersburg State University, Academician of the Russian Academy of Sciences, suggested subjecting "the innovative approach of the chairman of the Supreme Arbitration Court to a thorough check." Chairman of the St. Petersburg Garrison Military

Yu. Kozlov called himself an opponent of case law in Russia, since it "will not change the existing reality, but will significantly reduce the independence of judges." Plenipotentiary of the Government of the Russian Federation in the Constitutional Court M. Barshchevsky said that in order to switch to a case law system, it is necessary to create a single Supreme Court, and this requires a change in the Constitution. We join the opinion of Valery Musin, Head of the Department of Civil Procedure at the Faculty of Law of St. form the basis of the law. At the same time, the precedent does not violate the principle of the independence of judges, since it becomes binding on everyone, like the law itself.

Sharing the point of view of supporters of the recognition of legal precedent as a source of law, let us return to the question of the significance of a court decision for a law enforcer when a gap in the legislation is discovered in the course of his activities. In cases where the relations (that is, civil relations) provided for in paragraphs 1 and 2 of Article 2 of this Code are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, civil law shall apply to such relations, unless this contradicts their essence. regulating similar relations (an analogy of the law). If it is impossible to use the analogy of the law, the rights and obligations of the parties are determined on the basis of the general principles and meaning of civil law (analogy of law) and the requirements of good faith, reasonableness and justice (Article 6 of the Civil Code of the Russian Federation).

This list should be considered incomplete, in addition to the listed restrictions, when a gap is found in the law, the courts actively refer to judicial practice as one of the sources of law. Thus, the Pervomaisky District Court of Izhevsk ordered the Ministry of Finance of Russia to pay the lawyer 15,000 rubles as compensation for non-pecuniary damage for an illegal search conducted in his office, stating that "the search violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms" (the right to respect for private and family life, home and correspondence). In addition, the court referred to three decisions of the European Court of Human Rights and applied the analogy of the law, since Russian law does not provide for the right to compensation for non-pecuniary damage for an illegal search. Earlier, the Supreme Court of Chuvashia denied human rights activist Denis Fyodorov compensation for moral damage caused to him by an illegal police search, pointing to the absence of a norm in the legislation that directly provides for such a right. The lawyer initiated an appeal to the Constitutional Court of Russia with a request to clarify this legal gap.

Joining the authors who apply a broad approach, considering the essence of legal gaps, we consider it necessary to supplement the provisions of Article 6 of the Civil Code of the Russian Federation with an indication of judicial precedent as one of the circumstances limiting the use of legal analogy. In the absence of regulatory regulation of the situation and the presence of legal custom and judicial practice, judicial precedent should be applied as a priority, as an official source recorded in the acts of the competent state body.

In conclusion, I would like to draw attention to the fact that the problem of overcoming gaps in legislation is one of the important legal problems of a democratic state. Its correct resolution contributes to the adoption of a lawful and reasonable decision on the case, which means timely and effective protection of the violated right or legally protected interest of a person. The subject of law enforcement must take responsibility for the decision made in the event of a gap in the law and use the entire arsenal of legal means established by the law.

Literature

1. Nersesyants V.S. General theory of law and state: textbook. for universities and faculties. - M.: NORMA-

INFRA^M, 2001. - S. 489.

2. Problems of the general theory of law and state: textbook. for universities / under the total. ed. corresponding member RAS, Dr.

legal Sciences prof. V.S. Nersesyants. - M.: NORMA-INFRA^M, 1999. - S. 431.

3. Cherdantsev A.F. Theory of state and law: textbook. for universities. - M.: Yurayt-M, 2001. - S. 256.

4. Leist O.E. Realization of Law // Theory of State and Law: a course of lectures / ed. M.N. Marchenko. -

M.: Zertsalo, TEIS, 1996. - S. 416-435.

5. Khropanyuk V.N. Theory of Government and Rights. Reader: textbook. allowance. - M., 1998. - S. 712.

6. Vlasov V.I. Theory of Government and Rights. - Rostov n / D, 2002. - S. 96.

7. Akimov V.I. Types of legal gaps // Lawyer. - 2003. - No. 12. - S. 70.

8. Lazarev V.V. On the types of gaps in law // Jurisprudence. - 1969. - No. 6. - S. 30-37.

9. Spiridonov L.I. Theory of Government and Rights. - M., 1998. - S. 67.

10. Malyushin A.A. Judicial lawmaking in the process of law enforcement // Ros. judge. - 2007. - No. 6.

11. Nersesyants B.C. The court does not legislate and does not govern, but applies the law. (On law enforcement

telnoy nature of judicial acts) // Judicial practice as a source of law. - M., 1997. - S. 34.

12. Manov G.N. Theory of law and state. - M., 1995. - S. 266.

13. Livshits R.Z. Judicial practice as a source of law. - M., 1997.

14. Zhidkov O.A. US Supreme Court: Law and Politics. - M., 1985. - S. 95-106.

15. Marchenko M.N. Sources of law: textbook. allowance. - M.: TK Welby, publishing house Prospekt, 2005. - S. 509-510.

16. Zivs S.L. Sources of law. - M., 1981. - S. 177-192.

17. Anishina V.I. Decisions of the plenums of the highest courts of the Russian Federation: legal nature, place and role in the legal system // Ros. judge. - 2008. - No. 5.

18. Ershova E.A. Legal nature of resolutions and definitions of the Constitutional Court of the Russian Federation // Labor Law. - 2009. - No. 3.

19. Anufrieva L.P. On the sources of private international law (some questions of theory) // Mos-kov. magazine intl. rights. - 1994. - No. 3.

20. Neshataeva T.N. International civil process: textbook. allowance. - M.: Delo, 2001. - P.65

21. Mitrofanova M. What does the coming day prepare for us? // College. - 2002. - No. 4. - T. 2. - S. 39.

Taking into account the social and legal nature of the court decision, special requirements are imposed on it, which are divided into general and specific (special).

In accordance with Article 195 of the Code of Civil Procedure of the Russian Federation, the decision of the court must be lawful and justified. These requirements are of a general nature.

The first requirement imposed by civil procedural legislation on this type of decision of the court of first instance is the legality of the court decision. Judgment must be made in accordance with the rules of substantive law, as well as in accordance with the rules of procedural law. Applying these norms, the court is guided by the Constitution of the Russian Federation, federal laws and other regulatory legal acts. Violation or incorrect application of the rules of procedural law is the basis for the cancellation of the decision - Art. 364 Code of Civil Procedure of the Russian Federation.

Thus, a decision is legal if:

1) when administering justice, judges are independent and subject only to the Constitution of the Russian Federation and federal law;

2) the decision was made on the basis of the Constitution of the Russian Federation, federal constitutional laws in force on the territory of the Russian Federation, international treaties of the Russian Federation, federal laws and other regulatory legal acts;

3) the court, having established, when resolving a civil case, that a normative legal act does not comply with a normative legal act that has a greater legal effect, applies the norms of the act that has the greatest legal force - part 2 of article 11 of the Code of Civil Procedure of the Russian Federation;

4) in the absence of the rules of law governing the disputed legal relationship, the court applies the rules of law governing similar relations (analogy of law), and in the absence of such rules, the court makes a decision based on the general meaning of the legislation and, first of all, the Constitution of the Russian Federation (analogy of law) - Part 3, Article 11 of the Code of Civil Procedure of the Russian Federation. At the same time, the application of the analogy of law and law must be motivated;

5) an international treaty of the Russian Federation establishes other rules than those provided for by law, and the court, when resolving a civil case, applies the rules of the international treaty - part 4 of article 11 of the Code of Civil Procedure of the Russian Federation;

6) the court, in accordance with federal law or an international treaty of the Russian Federation, when resolving cases, applies the norms of foreign law - part 5 of article 11 of the Code of Civil Procedure of the Russian Federation.

The totality of these provisions constitutes the content of the requirement of the legality of the judgment. Illegal judgment is subject to cancellation in accordance with the procedure established by civil procedural legislation See: Zagainova S. On the unification of the requirements for judicial acts in civil proceedings // Arbitration and civil proceedings. - 2006. - No. 5. S. 15 ..

“A decision is legal when it is made in strict observance of the rules of procedural law and in full compliance with the rules of substantive law that are subject to application to this legal relationship, or is based on the application, where necessary, of an analogy of law or law” Plenum of the Supreme Court of the Russian Federation in clause 2 of the Decree of December 19, 2003 No. 23 On the court decision // Bulletin of the Supreme Court of the Russian Federation, No. 2, 2004 .. It is as a result of the adoption of a legal decision that the uncertain rights of persons become certain, and the real restoration of violated rights ultimately depends , freedoms and interests.

The validity of the judgment is the next requirement for the judgment. Part 2 of Article 195 of the Code of Civil Procedure of the Russian Federation clarifies the concept of validity, emphasizing that the court bases its decision only on the evidence that was examined at the hearing. The validity of the judgment means the compliance of the court's conclusions about the circumstances of the case with the actual relationship of the parties, i.e. when the decision reflects all the facts relevant to the case, confirmed by evidence verified by the court that meets the requirements of the law on their relevance and admissibility, or well-known circumstances that do not need to be proven.

Draw the attention of the courts to the fact that the decisions made must be legal and justified in accordance with Articles 195, 198 of the Code of Civil Procedure of the Russian Federation and contain a full, motivated and clearly stated response to the claims of the plaintiff and the objections of the defendant, except for court decisions in cases in which the defendant acknowledged the claim and the recognition of the claim accepted by the court, as well as in cases in which the claim (application) was denied due to the recognition of invalid reasons for missing the statute of limitations or the deadline for applying to the court Zhilin T.A. Commentary on the Civil Procedure Code of the Russian Federation. - M., 2003. 317..

It should be noted that the facts that constitute the subject of proof, which are determined by the court when applying the norm of substantive law, are subject to proof. The decision of the court is not justified and is subject to cancellation if, under the circumstances established by the court, a correct conclusion is not made about the actual relations of the parties, and also if facts that are legally significant for the case have not been established.

The next requirement highlighted in the legal literature and presented to the court decision is the completeness of the decision. The court decision must be complete (exhaustive), give final answers to all the stated requirements. A manifestation of incompleteness may be that the court allowed the claims of not all the plaintiffs or in respect of not all the defendants. Thus, the decision of the court must contain answers to all the stated requirements and objections of the persons participating in the case.

Another requirement for a court decision is the requirement of certainty. It means that the decision must clearly express the conclusion of the court on the satisfaction or dissatisfaction of the claim, the rights and obligations of the parties are defined. This requirement excludes the possibility of enacting alternative solutions. It should be noted that civil procedural legislation allows for the issuance of optional decisions - Article 206 of the Code of Civil Procedure of the Russian Federation. When awarding property in kind, the court indicates in the court decision the value of this property, which must be recovered from the defendant if, during the execution of the court decision, the property awarded is not available - Art. 205 Code of Civil Procedure of the Russian Federation. An indeterminate judgment is subject to annulment in whole or in part.

The decision must be final.

The requirements for a court decision include the fact that it must be issued in a certain procedural form.

A court decision that meets all of the above requirements for it contributes to the fulfillment of the tasks facing the implementation of civil justice.

The legality of a court decision presupposes the observance by the courts of the generally recognized principles and norms of international law and international treaties of the Russian Federation, which are an integral part of its legal system.

Judgment must be issued when the circumstances that are legally significant for the case are proven. If the court issued a decision based on the lack of evidence of circumstances of legal significance for the case, which it considered established, then the decision in the case is subject to cancellation in cassation on the basis of clause 2, part 1, article 362 of the Code of Civil Procedure of the Russian Federation. The court is obliged to proceed from the requirements for evidence, which must be relevant, admissible, reliable, sufficient and, in the aggregate, have a mutual connection.

The conclusions of the court set out in the decision on the case must correspond to the circumstances of the case. Otherwise, the court's decision is subject to cancellation in cassation and appeal on the basis of paragraph 3 of part 1 of article 362 of the Code of Civil Procedure of the Russian Federation.

Judicial practice shows that the theoretical dispute about whether motivation is one of the requirements for the content of a court decision, or whether it is included in the validity and legality, is scholastic to a certain extent. The discussion is based on dogmas (in positive value of this word) the science of civil procedural law, and not on objective reality. And it testifies that in any case, the absence of proper motives and arguments in the final law enforcement act provokes the functioning of higher judicial bodies, which consider this as a reason for canceling or changing the decision.

If the court, after evaluating the evidence (each individually and in the aggregate), establishes that certain materials presented, the testimony of witnesses, other factual data do not confirm the circumstances that the parties referred to as the basis for their claims and objections, it must motivate its conclusion about it in the decision. Thus, an independent requirement for a court decision is the requirement of motivation, which is not identical to the requirement of validity Vikut M.A. Resolutions of the court of first instance // Civil process of Russia / Ed. M.A. Vikut. - M., 2005. S. 286 ..

This opinion was shared by A.A. Vlasov and E.V. Khakhalev. In their interpretation, motivation is the essence of a complete and comprehensive reflection of the results of the activities of the court of general jurisdiction in the study, as well as the assessment of the means of proof, outlining the arguments for which some evidence was rejected and all others were accepted. From this it is clear that validity and motivation are interrelated, they partially coincide, but are not synonymous See: Vlasov A.A. civil process. - M., 2005. S. 279; Khakhaleva E.V. The validity of the decision of the court of general jurisdiction: Abstract of the thesis. dis. ... cand. legal Sciences. - Saratov, 2005. S. 14 ..

There are also more specific requirements for the judgment. The court decision must be complete (exhaustive), give final answers to all the stated requirements. The judgment must be definite, give such a response to the requirements, which would exclude uncertainty in the statement about the existence of a legal relationship between the parties and the procedure for the execution of the judgment; it is unacceptable to issue alternative and conditional decisions Tkachev N.I. The legality and validity of court decisions on civil affairs. - Saratov, 2007. P.39..

The certainty of the decision means that it must clearly resolve the issue regarding the content of the rights and obligations of the parties in connection with the disputed material legal relationship that is the subject of the court's consideration. The decision of the court must contain an answer, who owns the rights, who bears the duties, what is their specific content. This requirement, being observed by the court, entails the reality of the execution of the judgment.

The absoluteness of the decision means that its operative part should not contain indications of the possibility of execution of the judgment, depending on the occurrence of any conditions.

The next requirement for a court decision is the completeness of the decision. The completeness of the court decision means that the decision must contain answers to all the stated requirements and objections of the parties and be made with respect to all accomplices.

The last requirement for a court decision is that it must be issued in a procedural form. The procedural form of making a decision is understood as both compliance with the decision-making procedure and execution of the decision in writing, corresponding to the content and details established by law. When issuing a judgment, the court evaluates the evidence, determines which circumstances relevant to the case have been established and which have not been established, which law should be applied in this case and whether the claim is subject to satisfaction. The decision is set out in writing.

Only a court decision that meets all the requirements imposed on it in the law contributes to the fulfillment of the tasks facing the administration of justice.

At the same time, the law permits the issuance of optional decisions, which allow the replacement of one type of award (method of execution) with another, if the first method cannot be implemented. For example, when awarding objects in kind to the plaintiff, the court indicates their value, which must be recovered from the defendant if they are not available.

Sometimes, as an independent requirement, they single out the requirement to comply with the procedural form, understood, on the one hand, as a certain procedure for issuing a court decision, and on the other, as requirements established by law for the content and form of a decision-document.

CONCLUSION: The requirements that apply to a court decision are provided for by law and are divided by nature into two groups of requirements for: the content of a court decision; the form of a judgment.

So, according to Art. 195 of the Code of Civil Procedure, the court decision must be lawful and justified.

The legality of the judgment lies in the strict and steady compliance with the norms of substantive law to be applied in the case, with strict observance of the norms of procedural law in accordance with their content and purpose.

The concept of legality also covers the requirement of reasonableness, since the duty of the court to make well-founded decisions is established by law and violation of this duty means a violation of the law.

The justification of a court decision consists in the requirement that the judgments expressed in the decision correspond to the circumstances of the case established by the 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

In 96, the right of the actual educator of a child who has been supporting a minor for a long time, upon the onset of disability or in other cases of need, to receive maintenance from the former pupil is fixed. 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 legal 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 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 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 paragraph 84 of Article 208 of the Federal Law. Applying an analogy, the Constitutional Court concluded that the said norm should be interpreted in conjunction with paragraph 2 of Art. 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, the citizen bought a vehicle and concluded a pledge 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.

On the basis of 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 a fee, and the acquirer did not know and should not have known that the property was in pledge.

Dispute in law practice

A fairly 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 late 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, which regulate 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.

Where in the court decision to look for hidden errors?

December 12, 2013
« The court never became either quick, or right, or fair. ».
http://www.bbc.co.uk/russian/russia/2013/12/131212_putin_annual_address_preview.shtml

February 16, 2016
Seminar-conference of chairmen of courts
« Those judges who are prevented by any other interests from complying with the requirements of the current legislation,
Code of Judicial Ethics, it is, of course, worth looking for another place to apply your knowledge and strength. »

At a conference on judicial errors and their consequences,Moscow City Court Chairwoman Olga Egorova proposes to discuss the issue of liability of judges for intentional errors.

"It is worth discussing at the federal level the issue of property liability of judges who have made intentional errors ", Yegorova said, noting that the consequences of such mistakes are very serious.

She told that in Russian Empire judges had to pay compensation for their violations out of their own pockets. "I will copy this article from the Code of Laws of the Russian Empire and send it to you in every court ", - said the chairman of the Moscow City Court.

Code of Laws of the Russian Empire of 1832. (Article 678 Volume X Part 1)

Message on the news channel NEWSru.com

« Moscow judges do not know the laws, and their decisions are not motivated.

The quality of the decisions of the Moscow courts is no good, and the terms for considering cases are being delayed.

There are a lot of complaints about the quality of writing court decisions, and this applies to both criminal, civil and administrative cases.

Decisions are made without examination of evidence, or with reference to evidence that was not the subject of judicial examination.

There are cases of ignorance of the law and said that there is also a problem of corruption in the judicial community of Moscow, associated with the same mistakes and the quality of writing court decisions ».

Chairman of the Moscow City Court Egorova O.A.

Source: http://www.newsru.com.

“The most interesting thing about this lie is that it is a lie from the first to the last word.”
Mikhail Bulgakov (I guess - said about the decision)

Ten requirements for the decision of the court.

The decision of the court of first instance, by which the case is resolved on the merits, is a court decision if:

1. A decision is lawful if procedural and substantive law or an analogy of law is observed when making a decision.

2. The decision is justified when the facts are confirmed by the examined evidence, which in turn is relevant and admissible or does not need to be proven.

3. The decision must necessarily indicate the law by which the court was guided. The motivational part indicates the substantive law applied to legal relations and procedural rules.

4. When making a decision, the court must take into account the decisions of the Constitutional Court of the Russian Federation on the interpretation of the Constitution applied in the case; Decree of the Plenum of the Court of the Russian Federation on the practice of applying the norms of substantive and procedural law; Judgments of the European Court of Human Rights on the interpretation of the Convention for the Protection of Human Rights.

5. In addition, the decision must be based only on the evidence that has been examined by the court of the first instance.

6. The decision is unlawful if it is based on evidence not examined at the court session or if the evidence was obtained in violation of the norms.

7. One of the important evidence in the case is a forensic examination. It is not an exclusive means of proof and must be evaluated along with other evidence. At the same time, the evaluation of the forensic examination should be fully reflected in the court decision: whether the expert gave a complete analysis of the case materials, what the expert’s conclusions are based on, whether the expert accepted all the case materials, etc.

8. When making a decision, the judge must take into account that the previously considered civil and arbitral decisions that have entered into legal force are binding on the court.

9. One of the requirements for the solution, the sequence of presentation. The court should describe in the decision of the plaintiff's actions a change in the subject or grounds of the claim or an increase / decrease in the size of the claim, as well as, for example, recognition of the claim by the defendant.

10. The operative part of the decision must contain exhaustive and clear conclusions that follow from the reasoning part of the decision.

What do you think?

VICTORY IN THE COURT

- ... this is the sum of unknowns: people, luck, knowledge and experience, patience, persuasion and argumentation ...
The result of an unknown amount is called the resolutive part of the decision - such an indefinite, devoid of meaning "now", feelings of the present moment, a set of lies, inner convictions and omissions.
And what about "now"?

There are proven ways to win in court: play on "their" sense of superiority, and later question the mysticism of the "secret brotherhood of the mantle" with complaints, comically manifest the spirit of shared suffering ... in a word - play "theater".
All this in court is not so difficult to do.

Four conditions for a decision to be justified.

1. All circumstances have been established and the evidence has been examined and reflected in the court decision.

2. Circumstances are confirmed by certain evidence.

3. All the necessary circumstances have been established for the correct resolution of the court case.

4. The court assessed all the evidence in terms of admissibility, sufficiency, reliability and relevance.

The issue of court costs can be resolved not only in a court decision, but also in a court ruling.

The issues considered in the additional decision are limited to the subject of the trial, which were not reflected in the operative part or if the court did not indicate the amount of the amount awarded.

European Convention on the Content of a Judgment.

All of the above is elementary truth for any lawyer. But in judicial practice, these rules are ignored by the judiciary.

Judges unmotivatedly ignore procedural rules, for example, the provisions of Articles 67 and 198 of the Civil Procedure Code of the Russian Federation, “arbitrariness” in the priority of evidence, without convincing reasons for which they are rejected by the court.

So Russian judges violate the provisions of paragraph 1 of Art. 6, Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The minutes of the court session of the court of first instance do not reflect some important facts, for example, testimonies, which, in accordance with Russian procedural legislation, are not reflected in any documents other than the minutes of the court session.

Ignoring the definitions in the minutes of the court session prevents the party from appealing this ruling and makes it impossible to refer to facts and circumstances not recorded in other documents of the case and does not allow referring to the testimony in the courts of second instance as evidence in the case.

The ECtHR found a violation of Article 6 of the Convention in this case, when the first instance court does not evaluate all the available evidence in the case in their entirety. The conclusions are not based on a comprehensive, complete, objective study of the evidence available in the case.

WORK OF CONSCIENCE - SEEK THE TRUTH.
(lat. Opus de conscientia - invenire veritatem)

The only standard on the basis of which judges are called to conscience ... Law "On the Status of Judges in the Russian Federation" ( one word "Conscience" in the whole law).

And other norms "on conscience."

"Constitution of the Russian Federation"
Article 28
« Everyone is guaranteed freedom conscience freedom of religion, including the right to profess, individually or in community with others, any religion or none, to freely choose, have and disseminate religious and other beliefs and act in accordance with them.»

"Criminal Code of the Russian Federation"
Article 148. Violation of the right to freedom of conscience and religion

"Criminal Procedure Code of the Russian Federation"
Article 17. Freedom of evaluation of evidence
« 1. The judge, jurors, as well as the prosecutor, investigator, interrogating officer evaluate the evidence according to their inner conviction, based on the totality of evidence available in the criminal case, guided by the law and conscience .»

"Civil Code of the Russian Federation (part one)"
Article 123.26. Basic Provisions on Religious Organizations

"Code of the Russian Federation on Administrative Offenses"
Article 5.26. Violation of the legislation on freedom of conscience, freedom of religion and religious associations

Law of the Russian Federation of June 26, 1992 N 3132-1
"On the Status of Judges in the Russian Federation"
Article 8. Oath of a judge
« 1. A judge elected to office for the first time shall, in a solemn ceremony, take an oath of the following content:
"I do solemnly swear to perform my duties honestly and conscientiously, to administer justice, subject only to the law, to be impartial and just, as the duty of a judge and my conscience ".»

Federal Law No. 70-FZ of May 30, 2001
"On Arbitration Assessors of Arbitration Courts of the Subjects of the Russian Federation"
Article 2. Requirements for arbitrators
« 3. An arbitrator who has taken up his duties for the first time shall, in an open court session, take an oath of the following content:
"I solemnly swear to perform my duties honestly and conscientiously, to administer justice, obeying only the law, to be impartial and just, as my civic duty and conscience ".»

Law of the Russian Federation of 02.07.1992 N 3185-1
"On psychiatric care and guarantees of the rights of citizens in its provision"
Article 39

Order of the Prosecutor General's Office of Russia dated December 25, 2012 N 465
"On the participation of prosecutors in the judicial stages of criminal proceedings"
«… public prosecutor, in accordance with the law and conscience, may drop the charge only after a comprehensive examination of the evidence.»

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 (analogy of the law), and in its absence, act on the basis of the principles of the administration of justice (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 the 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 Part 2 of Article 45 of the Civil Procedure Code of the 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 judicial proceedings in arbitration courts, the application of the analogy there is no 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 challenging decisions of arbitration courts and on the issuance of 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. Paragraph 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 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, 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 the necessary documents is 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 the fourth part 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?