It should be noted that the analogy of the law is used not only when resolving specific disputes, but also in the explanations of the Supreme Arbitration Court of the Russian Federation.
The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 N 64 "On some issues of the practice of considering disputes over the rights of owners of premises to the common property of a building" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2009. N 9) states: arising from common property in such a building are not directly regulated by law. Therefore, in accordance with clause 1 of Article 6 of the Civil Code of the Russian Federation, legal norms governing similar relations, in particular Articles 249, 289, 290 of the Civil Code of the Russian Federation, are subject to application to these relations.
The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 22, 2011 N 81 "On some issues of application of Article 333 of the Civil Code of the Russian Federation" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2012. N 2) explains that "the courts should take into account that the provisions of Article 333 of the Civil Code Taking into account the explanations contained in this Resolution, they are applied to the measures of responsibility provided for in paragraph 2 of Article 381 of the Code for non-performance of the contract secured by a deposit (paragraph 1 of Article 6 of the Civil Code of the Russian Federation). So, when collecting a double amount of the deposit from the party responsible for non-performance of the contract, the court has the right, at the request of the defendant, to reduce the size of half of this amount in accordance with the provisions of Article 333 of the Civil Code of the Russian Federation. "
At the same time, in practice, the clarifications of the Supreme Arbitration Court of the Russian Federation are often used by analogy - the Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation and information letters. For example, in the Resolution of the FAS of the Ural District of July 11, 2014 N F09-4370 / 14 in case N A60-2190 / 2014 (ATP ConsultantPlus), it is stated: “The reference of the company“ COMPLEX VK ”to the unlawful use by the court of appeal clause 14 of the information letter of the Supreme Arbitration Court of the Russian Federation of 25.04.1995 N C1-7 / OP-237, which is not applicable, is rejected as based on an incorrect interpretation of substantive law, the court considers it possible to apply the above paragraph to disputed legal relations by analogy. " The FAS of the Moscow District also applies, by analogy, the clarifications of the Supreme Arbitration Court of the Russian Federation, while referring to paragraph 6 of Art. 13 APC (Resolution of April 24, 2014 N F05-3892 / 14 in case N A40-123855 / 13-3-736 (SPS "ConsultantPlus")).
However, there is no legal basis for this. The commented rule of the Civil Code refers to the application by analogy of civil legislation. In paragraph 6 of Art. 13 APC uses a broader formulation - "the rule of law". As you know, the clarifications of the higher courts do not contain the norms of law, despite the fact that they, by all accounts, have a normative character by virtue of their binding on the lower courts. It seems that in these cases we should not talk about analogy, but about the broad interpretation of the relevant explanations, although this approach is not perfect, as it unnecessarily expands the scope of judicial discretion.
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Analogy of law, analogy of law. Business customs. The value of acts of the highest judicial bodies and judicial practice
Business customs are one of the sources of civil law. They represent the rules of conduct that have developed and are widely used in the field of entrepreneurial activity, although they are not provided for by law.
Such practices will not apply if they contradict the provisions of the law binding on the parties or the terms of the contract.
An example of such practices is the International Rules for the Interpretation of Trade Terms INCOTERMS.
Conditions for the application of business customs:
lack of rules established by civil law;
lack of agreement between the parties about a different procedure;
non-contradiction with current legislation;
the emergence in a separate area of entrepreneurship (international trade).
The analogy of the law is the application to relations that are not regulated by legislation or a contract, the rules of civil law that regulate similar relations.
The condition for applying the analogy of the law is the absence of:
regulation of these relations by law;
agreements between the parties on this issue;
business customs that can be applied to this relationship;
contradictions between the applicable rule of law and the essence of the relationship to be settled.
The application of the analogy of the law is due to the fact that legislation does not always have time to be formed in relation to already existing civil legal relations.
The analogy of law should be distinguished from the analogy of law.
The analogy of law is the application of general principles and the meaning of civil legislation, taking into account the requirements of good faith, rationality and justice.
The analogy of law is applied only if it is impossible to use the analogy of the law. At the same time, the requirements of good faith should be understood as good faith actions of the parties (regularly fulfilling their obligations), rationality - as taking into account life circumstances, a specific situation, possible consequences, etc. (for example, elimination of defects in a product within a reasonable time), justice - as taking into account the interests of both parties ...
The significance of acts of the highest judicial bodies and judicial practice consists in:
1) Interpretation of the rule of law.
2) Informative (reviews, etc.)
Formally, they are not sources of law, but nevertheless, the lower courts are guided by explanations and must take them into account when making a decision.
Interpretation - understanding the meaning and content of a specific rule of law.
There are the following types of interpretation:
by source:
obligatory (legal) - interpretation is carried out by a state body within its competence;
scientific (doctrinal) - interpretation of legislation in educational and scientific literature, is not binding;
by way:
literal (authentic) - interpretation of the norm by taking into account the text, and not the intention of the legislator;
restrictive - the content of a rule of law is already its textual expression;
expansive - the content of a rule of law turns out to be wider than its textual expression;
systematic - understanding the rule of law by comparing it with other rules.
36.Intangible goods and their protection.
Intangible goods- these are non-property benefits, they are devoid of economic content, that is, they have no value expression.
These include: name, life and health, personal dignity, personal integrity, honor and good name, business reputation, privacy, personal and family secrets, the right to free movement, choice of place of stay and residence, the right to a name, the right of authorship, other personal non-property rights and other non-material benefits belonging to a citizen from birth or by virtue of the law.
The specificity of civil law methods of protecting personal intangible benefits is manifested in the fact that in cases of violation of intangible benefits, they are subject to restoration (if possible) regardless of the fault of the offender. Civil protection of personal intangible goods is also aimed at preventing their violation in the future. When protecting intangible benefits, it is permissible to use any forms and methods of protecting civil rights, if this does not contradict the essence of the violated benefit and the nature of the offense (for example, such as recognition of rights, suppression of actions that violate the right, compensation for damages, compensation for moral damage). The grounds and methods of protecting intangible benefits differ depending on whether the rights of an individual or a legal entity are violated. During the life of the bearer of personal non-property rights and other non-material benefits, it primarily depends on him whether he will use the methods of protecting these benefits provided for by the law and, if he does, which ones. Third parties can exercise and protect personal non-property rights belonging to a third party if authorized to do so by the holder of the right or by law and if this does not contradict the essence of the violated right. Personal non-property rights and other non-material benefits belonging to the deceased, in the presence of a legally significant interest, can be exercised and protected by other persons, including the heirs of the copyright holder.
By virtue of Art. 208 of the Civil Code, the limitation period does not apply to requirements for the protection of personal non-property rights and other non-material benefits, except as otherwise provided by law.
D.V. Karpukhin, Candidate of Historical Sciences, Associate Professor of the Department of Civil Law Disciplines of MIEMP (Moscow Institute of Economics, Management and Law)
ANALOGY OF THE LAW IN HOUSING RELATIONSHIP
One of the urgent problems of the housing legislation of the Russian Federation at the present time is the legal gaps: the lack of appropriate legal regulations governing housing relations in the management, use and operation of the housing stock. One of the ways to resolve this situation is to apply the analogy of the law. Judicial practice shows that it is not so easy to find a similar norm and sometimes its search and application leads to errors.
The principal novelty of the Housing Code of the Russian Federation, which entered into force in March 2005, was the provisions of Article 7, regulating the possibility of applying the analogy of the law and the analogy of law to housing legal relations. The previously existing Housing Code of the RSFSR did not contain these instructions, although the use of the analogy of law and the analogy of law in housing legal relations was allowed.
Currently, there is a tendency to an increase in the number of court cases applying in housing disputes the provisions of paragraph 1 of Article 7 of the RF LC (analogy of the law). Its essence lies in the fact that if housing relations are not regulated by housing legislation or by agreement of the participants in such relations and in the absence of civil or other legislation directly regulating such relations, if this does not contradict their essence, housing legislation is applied to them, regulating similar relations. ...
The facts of the application by the courts of first instance of similar norms of housing legislation to situations not regulated by legal prescriptions in housing disputes lead to appeals to higher courts.
Thus, by the ruling of the Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court dated May 16, 2006, N.A. Mitrofanova and A.S. Mitrofanova on the recognition of their right to use the living quarters and the claims of T.B. Normukhamedov on the termination of the right to use the disputed living quarters of N.A. Mitrofanova and A.S. Mitrofanova, their eviction and deregistration 1.
ON. Mitrofanov and A.S. Mitrofanova in 1983, citizen N.N. Sergeeva, the owner of an apartment in the city of Nizhny Novgorod, were moved into this apartment as family members and acquired the right to use the living quarters. Subsequently, the apartment was bequeathed to N.N. Sergeeva, her sister, citizen A.N. Otachkina, who after the death of N.N. Sergeeva, on September 24, 1992, entered into inheritance rights, and on March 25, 1993, she presented the indicated apartment to the citizen T.B. Normukhamedov. T.B. Normukhamedov in 1998 filed a lawsuit to evict N.A. Mitrofanova and A.S. Mitrofanova from the controversial apartment. The case has been repeatedly considered by various courts. By the definition of the Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court dated May 16, 2006, N.A. Mitrofanova and A.S. Mitrofanova on the recognition of their right to use the living quarters and the claims of T.B. Normukhamedov on the termination of the right to use the disputed living quarters of N.A. Mitrofanova and A.S. Mitrofanova, their eviction and deregistration. The court concluded that due to the continuing housing relationship of TB. Normukhamedov, as the owner of the dwelling, after the entry into force of the Housing Code of the Russian Federation, has the right to demand the eviction in court of persons who are members of the family of the former owner of the dwelling.
The specificity of this case, considered by the court, was that the plaintiffs and the defendant had never been in family relations and, therefore, from the formal legal point of view, did not fall within the scope of Article 31 of the LC RF.
However, the court, in accordance with the analogy of the law (clause 1 of Article 7 of the RF LC), applied the provisions of Article 31 of the RF LC, which regulates the rights and obligations of citizens living with the owner in the residential premises belonging to him, to the case in question.
ON. Mitrofanova filed a complaint with the Constitutional Court of the Russian Federation, in which she challenged the constitutionality of paragraph 2 of Article 292 of the Civil Code of the Russian Federation (as amended by Federal Law No. 213-FZ of 30.12.2004), part 1 of Article 7 and part 4 of Article 31 of the Housing Code of the Russian Federation ... In the applicant's opinion, these norms do not comply with Articles 1, 2, 7, 17 (parts 1 and 3), 19 (parts 1 and 2), 35 (part 2), 40 (part 1), 45 (part 1) and 55 Of the Constitution of the Russian Federation, since they allow the non-preservation of the right to use the dwelling for the family members of the former owner of the dwelling.
The Constitutional Court of the Russian Federation, in its Ruling No. 815-0-0 of 15.11.2007, refused to accept for consideration the complaint of citizen N.A. Mitrofanova, and in relation to the norm provided for in Part 1 of Article 7 (analogy of the law), indicated that it is aimed at eliminating gaps in legal regulation and, ultimately, at protecting the interests of participants in the relevant legal relationship and cannot be considered as violating constitutional rights.
The Constitutional Court of the Russian Federation did not indicate in what positive legal consequences the protection of the interests of the parties to the housing dispute should be expressed, although for the applicant the application by analogy of Article 31 of the RF LC led to the eviction of the owner from the dwelling without providing another dwelling. The application of the analogy of the law in this case protected the interests of only one party - the owner of the dwelling and infringed upon the rights of the persons living in his dwelling.
The provisions on the application of the provisions of clause 1 of Article 7 of the LC RF (analogy of the law) were reflected in the regulatory clarifications of the Plenum of the Supreme Court of the RF dated 2.07.2009 No. 14 "On some issues arising in judicial practice when applying the Housing Code of the Russian Federation" 2.
In accordance with paragraph 12 of the said Resolution, it is clarified that the procedure for concluding an agreement between family members of the owner of a residential premises, its form, conditions should be determined by the provisions of the Civil Code of the Russian Federation on civil transactions (Articles 153-181 of the Civil Code of the Russian Federation) on the basis of paragraph 1 of Article 7 of the LC RF (analogy of the law), since the RF LC does not contain special requirements for their conclusion.
The highest court of the Russian Federation clarified that the family members of the owner of the living quarters have the right to move in their minor children in order to ensure the rights of the latter to the living quarters, although the provisions of paragraph 2 of Article 31 of the LC RF do not endow the family members of the owner with this right. The Supreme Court of the Russian Federation indicated that this right is possible on the basis of the provisions of Article 679 of the Civil Code of the Russian Federation on the unconditional right of the employer under the contract of employment and citizens permanently living with him to move in the living quarters of underage children, as well as part 1 of Article 70 of the LC RF on the right of parents to move into the living quarters of their minor children without the obligatory consent of the rest of the family members of the tenant under a social employment contract and the landlord, by analogy with the law (part 1 of article 7 of the RF LC).
In this case, the normative interpretation of the Supreme Court of the Russian Federation on the application of the analogy of the law was aimed at protecting the interests of minors and exercising their rights to living quarters.
Clause 22 of the said Resolution states that it is necessary to draw the attention of the courts to the fact that the Housing Code of the Russian Federation does not establish the legal consequences of recognizing in the prescribed manner an apartment building in which not only the owners of residential premises live, but also the tenants of residential premises, as emergency and subject to demolition or reconstruction. premises under a social lease agreement. Taking this into account, when considering disputes related to ensuring the housing rights of owners of residential premises in such an apartment building, the court has the right, based on the norms of part 1 of Article 7 of the Housing Code of the Russian Federation on the application of housing legislation, by analogy to apply the provisions of Part 10 of Article 32 of the Housing Code of the Russian Federation to the said relations. on the seizure of a dwelling from the owner by way of redemption or on the provision of another dwelling to him, offsetting its value into the redemption price.
It should be noted that this clarification of the Supreme Court of the Russian Federation confirms its position, previously stated in the Review of Judicial Practice, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of 03/01/2006 3.
Interpretations of the Supreme Court of the Russian Federation in relation to the possibilities of applying the analogy of law in relation to the contract of social lease of residential premises and the contract of lease of residential premises of specialized housing stock are interesting. So, in clauses 23, 41 of the Resolution it is noted that the Housing Code of the Russian Federation does not provide for the grounds, procedure and consequences of recognizing decisions on the provision of residential premises under a social rental agreement and a rental agreement for residential premises of a specialized housing stock as invalid. Requirements for recognizing as invalid decisions on the provision of residential premises to a citizen under contracts of social rental and rental of residential premises of specialized housing stock and the relevant contracts concluded on their basis are subject to resolution based on the analogy of the law (part 1 of article 7 of the RF LC) in relation to the rules established by article 168 of the Civil Code RF, on the invalidity of a transaction that does not comply with the law or other legal acts, as well as paragraph 1 of Article 181 of the Civil Code of the Russian Federation, which provides for a three-year limitation period for the application of the consequences of the invalidity of a void transaction, during which begins from the day when the execution of this transaction began.
Since an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and it is invalid from the moment of its execution (paragraph 1 of Article 167 of the Civil Code of the Russian Federation), then in case of invalidation of the decision to provide a citizen with residential premises under a social hiring agreement, it is recognized the social tenancy agreement concluded on the basis of this decision is also invalid, and the persons living in the dwelling are subject to eviction from it to the dwelling previously occupied by them, and if it is impossible to evict them to the previously occupied dwelling, based on the specific circumstances of the case, it may be residential premises similar to those previously occupied were provided (paragraph 2 of Article 167 of the Civil Code of the Russian Federation).
Family members of the tenant of the office living quarters, in accordance with part 5 of article 100 and parts 2–4 of article 31 of the RF LC, have an equal right with the tenant to use the living quarters, unless otherwise provided by an agreement between them. In the event of the termination of family relations between the tenant of the office dwelling and a member of his family, the right to use the office dwelling for the former family member of the employer, as a general rule, is not retained (part 4 of Article 31 of the RF LC). However, it can be retained by a former family member of the tenant of the office dwelling by a court decision for a certain period on the grounds provided for in part 4 of Article 31 of the RF LC (paragraph 41 of the Resolution).
Important clarifications are contained in paragraph 28 of the Resolution, which notes that if the written consent of the tenant and (or) family members of the tenant has not been obtained for the person to move into the residential premises, as well as the consent of the landlord, when necessary (part 1 of Article 70 of the LC RF) , then such a move should be considered as illegal and does not give rise to the person's rights of a family member of the tenant to the dwelling. In this case, the landlord, tenant and (or) a family member of the tenant has the right to present to the newcomer a demand to eliminate violations of their housing rights and restore the situation that existed before their violation (paragraph 2 of part 3 of article 11 of the LC RF), which, based on analogy of the law (part 1 of article 7 of the LC RF), in relation to the rules provided for by article 208 of the Civil Code of the Russian Federation, the limitation period does not apply. This article excludes the extension of the limitation period to the claims of the owner or other owner to eliminate any violations of his rights, even if these violations were not combined with deprivation of possession. If the above requirement is satisfied, a person who has illegally moved into a dwelling is subject to eviction without providing another dwelling.
Thus, it should be borne in mind that the application of the rules by analogy with the law leads to various legal circumstances that should be taken into account when determining the limitation period. In cases with contracts of social lease and lease of residential premises of specialized housing stock, the limitation period is taken into account. In cases of restoration of the violated owner's right - no.
It should be noted that the regulatory clarifications set forth in the Resolution of the Plenum of the Supreme Court of the Russian Federation of 02.07.2009 are applied by courts, including the Supreme Court of the Russian Federation, in legal practice.
Thus, the Supreme Court of the Russian Federation, in its Ruling No. 42-B10-2 dated 06.07.2010, canceled the decision of the Elista city court of the Republic of Kalmykia dated 03.09.2009 and the determination of the judicial collegium for civil cases of the Supreme Court of the Republic of Kalmykia dated 15.10.2009 and sent the case for new consideration to the first instance court 4. The courts of the Republic of Kalmykia recognized the plaintiff's preferential right to receive a vacant room in a communal apartment, invalid the social tenancy agreement with the defendant, but at the same time recognized the latter's right to use the disputed room due to the lack of free living space.
The Supreme Court of the Russian Federation referred to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.07.2009 No. 14, which explains that in case of invalidation of the decision to provide a citizen with living quarters under a social tenancy agreement and invalidation of the social employment agreement also concluded on the basis of this decision , persons living in a dwelling are subject to eviction from it to their previously occupied dwelling. In case of impossibility of eviction into the previously occupied residential premises, based on the specific circumstances of the case, they may be provided with residential premises similar to those previously occupied (paragraph 2 of Article 167 of the Civil Code of the Russian Federation).
This provision of the Resolution was not taken into account by the republican courts, which became a significant violation of the norms of substantive law and led to the cancellation of court decisions.
It should be borne in mind that the application of the analogy of the law in housing legal relations is possible only if there are no relevant rules governing the current situation.
Thus, the Decision of the Supreme Court of the Russian Federation dated 18.08.2009 No. 5-B09-86 canceled the decision of the Babushkinsky District Court of Moscow dated 15.07.2008 and the determination of the Judicial Collegium for Civil Cases of the Moscow City Court dated 16.10.2008 No. and the case was sent for a new trial to the first instance court 5.
By order of the Moscow Government, the house in which the defendants lived in an apartment belonging to them by right of ownership was declared unsuitable and subject to major repairs with the resettlement of the tenants.
The defendant and his family members were offered a three-room apartment for resettlement with the transfer of ownership and termination of ownership of the apartment located in the house subject to demolition. The defendants refused to voluntarily move into the offered apartment.
The Supreme Court of the Russian Federation noted that, in resolving the case and satisfying the claim, the court was guided by Article 32 of the Housing Code of the Russian Federation (by analogy), as well as Article 6 of the Law of the City of Moscow dated May 31, 2006, No. 21 “On ensuring the housing rights of citizens during resettlement and the release of residential premises (residential buildings) in the city of Moscow "and proceeded from the fact that the defendants were given a larger apartment in exchange for the occupied one, which meets all the necessary requirements, located within the same administrative district of Moscow, the market value of which is higher than the cost of the apartment, subject to seizure.
At the same time, as noted by the Supreme Court of the Russian Federation, the legal relations that arose between the parties were regulated by the norms of the Law of the City of Moscow dated May 31, 2006, No. 21 "On ensuring the housing rights of citizens when resettling and vacating residential premises (residential buildings) in the city of Moscow," In the present case, the court had to be guided by this Law, and not Article 32 of the Housing Code of the Russian Federation (by analogy with the law), which regulates the issues of ensuring the housing rights of the owner of a residential premises when seizing a land plot for state or municipal needs.
In accordance with part 1 of article 14 of the said Law of the city of Moscow, when carrying out major repairs or reconstruction of a residential building, if such repairs or reconstruction cannot be carried out without evicting citizens, the person carrying out the resettlement is obliged to provide them with another residential premises without termination of contracts of social rent, lease, gratuitous use of residential premises, or with the retention of ownership of the residential premises located in this residential building for the citizens-owners.
By virtue of part 7 of the same article, after the completion of the overhaul or reconstruction, if the size of the repaired or reconstructed dwelling matches the size of the dwelling before the repair or reconstruction, citizens are subject to resettlement in the previously occupied dwelling.
According to parts 9 and 10 of the same article, in the event of a change as a result of major repairs or reconstruction of the size of a dwelling belonging to the right of ownership, the relationship of the parties is determined by an additional agreement. If the owner refuses to return to the previously occupied residential premises after major repairs or reconstruction in connection with a decrease or increase in the size of the previously occupied residential premises, he may be relocated to another residential premises with the termination of ownership of the previously occupied apartment.
In accordance with Article 6 of the Law of the City of Moscow dated May 31, 2006 No. 21 "On ensuring the housing rights of citizens during the resettlement and vacating residential premises (residential buildings) in the city of Moscow" to owners vacating residential premises (residential buildings) at their choice in in cash or in kind, an equivalent compensation (compensation) or redemption price is provided.
In accordance with part 8 of article 32 of the Housing Code of the Russian Federation, the provision of a residential premises to the owner in exchange for the seized other residential premises is allowed only by agreement of the parties.
Thus, the requirement of the state authority or local government body that made the decision to seize the dwelling, to relocate the owner of the seized dwelling to another dwelling in accordance with this legal norm cannot be satisfied if the owner of the dwelling objects to this, since in In this case, by virtue of Article 32 of the Housing Code of the Russian Federation, the state authority or local self-government body that made the decision to seize the dwelling may be obliged only to pay the redemption price of the seized dwelling.
Consequently, the existence of legal norms regulating specific situations excludes the possibility of applying norms by analogy with the law.
Another problem of applying the analogy of the law in housing disputes is the erroneous application of the norms of housing legislation by analogy. In this regard, an example from judicial practice in 2004 remains relevant. In the Decision of the Supreme Court of the Russian Federation of June 25, 2004, it was noted that due to the absence in the housing legislation of a legal norm governing the procedure for evicting persons introduced into the hostel without legal grounds, the supervisory court of the Republic of Mordovia recognized it possible to apply the analogy of the law to disputed relations - the norms of Article 110 of the JK of the RSFSR 6. In accordance with this article, seasonal, temporary workers and persons who worked under a fixed-term employment contract, persons who studied in educational institutions and left them, as well as employees who quit their own free will without for good reason, dismissed for violation of labor discipline or for committing a crime. Persons who have ceased work for other reasons, as well as persons listed in Article 108 of the Housing Code of the RSFSR, can be evicted only with the provision of another living quarters. In the opinion of the supervisory court, the defendant does not belong to the category of persons who can be evicted from the hostel with the provision of another living quarters, therefore, he applied part 1 of Article 110 of the Housing Code of the RSFSR to the disputed relations, according to which the defendants are subject to eviction from the hostel without providing another living quarters. premises.
The supervisory court, applying in this case by analogy the norm of part 1 of Article 110 of the JK of the RSFSR, unreasonably did not take into account the explanations contained in paragraphs 25, 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 26.12.1984, No. 5 "On some issues, arising in judicial practice in the application of the Housing Code of the RSFSR "(as amended on December 21, 1993). According to the explanations, if a hostel was provided to a citizen who is not a person who has the right to provide living space in a hostel, and a claim for eviction is brought against this person on this basis, it is necessary, in relation to Article 48 of the Housing Code of the RSFSR, to resolve the issue of invalidating the order for occupation living space in a hostel with the onset of the consequences provided for in Article 100 of the Housing Code of the RSFSR (paragraph 25). Eviction on the grounds provided for in Articles 95, 107, 110 of the Housing Code of the RSFSR is allowed in the event of termination of labor relations with the employer (paragraph 26). From the above explanations it follows that it is unacceptable to apply to a dispute between the plaintiff and the defendant by analogy with Article 110 of the Housing Code of the RSFSR. The defendant did not have an employment relationship with the plaintiff, she moved into the hostel by agreement between the management of the organization where she worked and the administration of the plaintiff, that is, not arbitrarily, she did not allow any abuse or violations when moving into the hostel. In such circumstances, based on the content of Part 1 of Article 40 of the Constitution of the Russian Federation and Part 4 of Article 10 of the Housing Code of the RSFSR, taking into account the specific circumstances of the case, the supervisory court had no legal grounds for applying by analogy with Part 1 of Article 110 of the Housing Code of the RSFSR and the eviction of the defendant from the hostel without providing her with other living quarters.
The correctness of the choice of the rule when applying the analogy of the law depends on the normative interpretations of the highest court of the Russian Federation, which explains the procedure for applying the relevant housing standards.
Thus, on the basis of the foregoing, the following conclusions can be drawn.
An analysis of the practice of applying legal prescriptions by analogy of the law in housing legal relations shows that the declared by the Constitutional Court of Russia the task of applying the analogy of the law, which is to protect the interests of participants in legal relations, is of a relative nature, since the application of similar norms of the Housing Code of the Russian Federation in cases of eviction led to the loss of the right to use living quarters of citizens. On the other hand, the clarification of the need to apply the analogy of the law in relation to minor children of family members of the owner created additional guarantees for their protection.
The correct application of the analogy of the law in housing legal relations by the courts depends on the subjective factor, the qualifications of the judge, and does not exclude errors. Interested persons, when applying the analogy of the law in housing legal relations, by judges should apply to the courts of second and third instance to verify the objectivity of decisions taken by the judicial corps of first instance.
Errors of the courts on the application of the analogy of the law in housing legal relations consist in the fact that, firstly, inappropriate norms are mistakenly used; secondly, the analogy of the law is applied when there are no grounds for its application, that is, there is a legal gap - the absence of a proper legal prescription governing the current situation.
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5.3.2. Analogy of the law
Having found a gap, the court must fill it or, more precisely, overcome it1. The first way to overcome this is by analogy with the law.
It should be noted that both procedural and substantive legislation contain the corresponding norms on the analogy of the law.
A slightly different rule is provided for in paragraph 1 of Art. 6 of the Civil Code of the Russian Federation: “In cases where the relations provided for in paragraphs 1 and 2 of Article 2 of this Code are not directly regulated by legislation or by agreement of the parties and there is no business custom applicable to them, such relations
1 We should agree with the idea that the term “overcoming” more accurately reflects the essence of the respective activities of the law enforcement officer (see, for example: V. V. Lazarev. Gaps in the law and ways to eliminate them. M., 1974, p. 130; Bonner AT Application of Normative Acts in Civil Procedure, p. 82).
112 Chapter II. General theoretical aspects
yam, if this does not contradict their essence, the civil legislation governing similar relations (analogy of the law) is applied ”. The analogy of the law in family law is formulated as follows: “If relations between family members are not regulated by family law or by agreement of the parties, and in the absence of civil law norms directly regulating these relations, such relations, if this does not contradict their essence, are applied norms of family and (or) civil law governing similar relations (analogy of the law) ”(Article 5 of the RF IC).
A comparative analysis of these norms allows us to conclude that the legislator provides for various legal structures as legal prerequisites for the application of the analogy of the law: *
the application of the analogy of the law in the resolution of civil disputes is made dependent on the following conditions: firstly, this is the absence of either an appropriate legislative norm, or an agreement between the parties that would regulate these relations, and secondly, customary law should not contain applicable to to the specified relations, the custom of business turnover, and, thirdly, the very application of the analogy of the law should not contradict the essence of the relationship; *
for the analogy of the law in family law, firstly, it is necessary that there is no relevant family law (or civil law that directly regulates relations), as well as the absence of an agreement between the parties that would regulate the disputed relationship, and, secondly, second, the application of a rule regulating similar relations should not contradict the essence of the relationship;
§ 5. General questions of law enforcement 113
3) finally, when the court resolves the remaining disputes, for the analogy of the law, it is sufficient to simply lack the norms that would regulate the corresponding relations.
It is easy to see that the only thing common to all three cases is the absence of an appropriate legislative norm. In other words, as a general prerequisite for the application of the law by analogy, the legislator provides for the very existence of a gap. Since we have already considered the issue of the possibility of attributing the activities of the law enforcement officer to establish a gap to judicial discretion, it makes sense to turn to other conditions necessary for the application of the analogy of the law.
The legal definition of the custom of business turnover is given in clause 1 of Art. 5 of the Civil Code of the Russian Federation: "The custom of business turnover is recognized as the prevailing and widely used rule of conduct in any area of entrepreneurial activity, which is not provided for by law, regardless of whether it is recorded in any document." Thus, the custom of business turnover is one of the sources of civil law, and, strictly speaking, there is no need to talk about any freedom of the court, because “the court has an undoubted obligation arising from the task assigned to it, to apply the norms of customary law, without waiting for instructions from interested parties and without making the application conditional on the degree of proof of custom ”1. A similar idea is expressed by M. I. Braginsky, one of the developers of the new Civil Code of the Russian Federation, who claims that “a court or other law enforcement body not only can, but also oblige
1 Shershenevich G.F. General theory of law. P. 74.
114 Chapter II. General theoretical aspects
if a gap is found in a legal or other normative act that is not filled by the contract, apply the customs of business turnover ”1.
However, the main specificity of this source is that there is no special requirement for its fixation, which, of course, may give rise to doubts in the court, in fact, in the very existence of the custom of business turnover. The legislator establishes two criteria, the simultaneous presence of which allows any rule of behavior to be attributed specifically to the custom of business turnover:
the rule of conduct must be established;
the rule of conduct should be widely applied in any area of entrepreneurial activity.
It is easy to see that both criteria are evaluative categories.
The Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation in a joint resolution of July 1, 1996 No. 6/8 "On some issues related to the application of part one of the Civil Code of the Russian Federation" 2 (paragraph 1, item 4) explained that the term "prevailing" should be understood as "sufficiently definite in its content." But such an attempt does little to clarify: where is the line beyond which, in one way or another, "certain in its content" can be qualitatively characterized as "sufficiently definite"? This raises the question of how to consider cases of deviation from the existing rule of conduct. The dual nature of such cases, in our opinion, was quite rightly pointed out by D. I. Meyer:
1 Commentary on part one of the Civil Code of the Russian Federation. M., 1995.S. 50.
2 Bulletin of the Supreme Arbitration Court of the Russian Federation. 1996. No. 9.P. 6.
§ 5. General questions of law enforcement 115
very monotonous; otherwise, a custom cannot be formed. But this does not mean that every deviation from the legal view prevents it from becoming common law. On the contrary, if evasion is presented as an exception, it is thereby sharply pointing to the existence of customary law. "1 Therefore, each time a law enforcement officer will face a dilemma in such cases: either the existing exceptions" blur "the rule of behavior, and it can no longer be said that it is" sufficiently definite in its content ", or these exceptions should be considered as confirmation of the rule, that is, as the existence of a custom of business.
The situation with the prevalence of use is no more clear. Obviously, “broadly” in the context of a norm is understood as “repeatability. in breadth "2, as a massive repetition" at a given time among a significant number of persons "3 (as opposed to repetition in depth, when" the rule follows from successive repetition over a considerable space of time. "4). Therefore, the prevalence category is purely quantitative. Meanwhile, due to the physical impossibility for the law enforcement officer to calculate the frequency of the use of the custom, the norm itself cannot be more specific. It is quite logical that in law enforcement practice, questions may arise about the breadth of prevalence of a particular rule of conduct in a certain area of entrepreneurial activity. And in this situation, only the law enforcement officer himself,
1 Meyer D.I.Russian civil law. M., 1997. Part 1.P. 46.
2 Shershenevich G.F. General theory of law. P. 66.
Chapter II. General theoretical aspects
knowing (or, conversely, rejecting) the widespread prevalence of a certain rule of conduct, will be able to include it in the big premise (or, on the contrary, will come to the conclusion that it does not apply to the sources of civil law).
It should also be noted that in addition to the specified legal criteria for classifying the rules of conduct as a business custom, there are also purely scientific ones. So, for example, D. I. Meyer singled out the following requirements: *
the rule of conduct should "contain a legal view, for no other view can give rise to rights" 1; *
“Custom should not contradict morality: society cannot recognize rights that are incompatible with good morality” 2.
In turn, GF Shershenevich pointed out that in legal science they distinguish “in the form of secondary or derivative aspects of the requirement for legal customs. did not contradict reasonableness. did not have delusions in their foundation ”3.
Without touching upon the validity of such statements, it should simply be noted that the additional criteria also contain evaluative terminology.
Thus, we can say that the process of establishing the fact of the existence of a particular custom of business turnover is associated with some uncertainty (which inevitably arises in cases when the legislator uses evaluation categories). And this gives rise to a certain freedom for the law enforcement officer.
1 Meyer D.I. Decree. Op. S. 45–46.
*, Shershenevich G.F. General theory of law. P. 63.
§ 5. General questions of law enforcement 117
However, can we talk about judicial discretion in this case? Indeed, if we start from the main features of judicial discretion that we have identified (at the very beginning of this work) (the presence of a certain, but still limited freedom and its corresponding legislative consolidation), then the conclusion should be unambiguous: the process of establishing the custom of business is left to the discretion of a particular law enforcement officer ... Moreover, both higher courts of the Russian Federation are on the same position that the applicability of a business custom does not even depend on whether it is stated “in a court decision that has entered into legal force on a specific case containing similar circumstances” 1.
Nevertheless, we believe that these cases must be delimited from the actual judicial discretion. ,
As the first argument, it is necessary to refer to the previously mentioned argument that discretion is inherently focused on a particular case, on its specifics. The very fact that a certain rule of conduct in entrepreneurial activity, according to some criteria, is attributed to the custom of business turnover (and on this basis is included in the sources of civil law), is something external for the dispute under consideration: no particular features of the actual relations of the parties can affect the very existence of a business custom.
1 Paragraph 2, clause 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 1, 1996 No. 6/8 "On some issues related to the application of part one of the Civil Code of the Russian Federation" // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1996. No. 9.P. 6.
118 Chapter P. General theoretical aspects
Another argument is connected in a certain way with this argument. At the everyday level, discretion is traditionally perceived as an instrument of legal arbitrariness, as a means to “circumvent” the law, as a way of its “necessary” application1. And therefore, taking into account the traditions of Russian linguistic culture, it makes sense to clearly distinguish the existing incoherence of the law enforcement officer in establishing the fact of the existence of a business custom from the freedom that the court is endowed with by the legislator in order to take into account the specifics of a particular case as much as possible.
Finally, the last of the conditions we have highlighted, the observance of which is necessary for the application of the analogy of the law when resolving civil and family law disputes, is the requirement that the very application of the norm by analogy does not contradict the essence of the relationship. It is easy to see that we are talking here, first of all, about the qualitative compatibility of the norms applied by analogy with such a (rather abstract) concept as “the essence of relations”.
Despite the fact that such a legal phenomenon as an analogy has long been known to Russian law, the legislative mention of the “essence of relations” (in relation to this institution) appeared relatively recently (since the introduction of the first part of the Civil Code of the Russian Federation) 2.
What is meant by "the essence of the relationship"? Since the analogy of the law is rare enough, we revert
1 Suffice it to recall the Russian pogbvorka: “The law is what a drawbar. "
2 Although it should be noted that some of the previously existing rules of law of obligations contained expressions such as "the essence of the obligation", "the essence of the transaction", etc.
§ 5. General issues of law enforcement.119
referring to the reference rules containing the corresponding clause (the enforcement mechanism here is the same as in the analogy of the law1).
In accordance with paragraph 2 of Art. 823 of the Civil Code of the Russian Federation "the rules of this chapter are accordingly applied to a commercial loan, unless otherwise provided by the rules on the contract from which the corresponding obligation arose and does not contradict the essence of such an obligation." E. A. Sukhanov, commenting on the rules on commercial credit, notes the following: “Commercial credit (Article 823 of the Civil Code) is not an independent transaction of a borrowed type, but a condition contained in a compensated contract. According to paragraph 2 of Art. 823 of the Code, the rules on a loan or credit should "accordingly" be applied to this condition of the agreement, unless otherwise is expressly provided for in the content of the agreement and does not contradict the essence of the obligation arising on its basis (for example, the possibility of unilateral refusal to provide or obtaining a loan is hardly applicable to the situation under consideration) ”2. Otherwise
1 In support of this, one can refer to the following statement by M. I. Braginsky: “The analogy of the law is that, insofar as this does not contradict their essence, the civil legislation is applied to the corresponding relations, regulating the similar attitude. Sometimes this similarity of relations determines the content of the legislation itself. Instead of duplicating the same rules in different sections, reference norms are used "(Braginsky MI Civil Code. Part One. Three years later (Commentary taking into account the adopted amendments to the Civil Code and new legislative acts) // Economy and Law. 1998. No. 1. P. 18).
2 Sukhanov E.A. Loan and credit. Financing against the assignment of a monetary claim. Bank deposit. Bank account (Chapters 42–45) (Commentary on the Civil Code of the Russian Federation) // Economy and Law. 1996. No. 7.P. 11.
120 Chapter P. General theoretical aspects
speaking, the provision of law of obligations on the inadmissibility of unilateral refusal to fulfill an obligation (Art. 310 of the Civil Code of the Russian Federation) is recognized as one of the constituent “essence of obligations” arising from compensated contracts, which excludes the possibility of automatic distribution of the rule provided for in Art. 821 of the Civil Code of the Russian Federation, for the maintenance of paid contracts.
This understanding of the “essence of the obligation” allows us to make a completely logical conclusion that the “essence of relations” includes the entire set of the most essential legal features that characterize this or that legal phenomenon. And accordingly, the contradiction to at least one of them should exclude the possibility of analogy of the law.
But another approach is also possible. The same author, commenting on the legislation on non-profit organizations, expresses the following thought: “A share in a consumer cooperative can be divided among several persons (in particular, the heirs of a deceased member) only in cases directly provided for by law and the charter of the cooperative and not contradicting the essence of the use relationship cooperative property (it is impossible, for example, to divide the share associated with the use of a one-room apartment or a land plot of less than 0.06 hectares). Therefore, the alienation of a part of the share. in most cases it is impossible ”1. In other words, the "essence of relations" here no longer covers the aggregate of the most essential legal features inherent in a certain legal phenomenon, but a certain factual situation.
1 Sukhanov E.A.Non-profit organizations as legal entities (Commentary of the Civil Code of the Russian Federation) // Economy and Law. 1998. No. 4. P. 11.
§ 5. General questions of law enforcement 121
things (more precisely, the very circumstances of a particular case).
What does such an ambiguous understanding of the “essence of relations” give to the problem of freedom of the law enforcement officer?
Obviously, in the first case, everything again comes down to purely semantic issues of legislative texts: by means of certain methods, the law enforcement officer must resolve for himself whether there is an internal contradiction between the norm applied by analogy and those relations that are included in the subject of legal regulation, but for some reason. for reasons they avoided legislative regulation. Therefore, our earlier conclusion about the need to distinguish between the activities of the court, carried out by it in the process of interpretation, and the actual judicial discretion, must be extended to this case: the complexity of the theoretical analysis does not change the essence of the phenomenon.
A fundamentally different situation is seen when the "essence of relations" is understood as some factual circumstances. If we recall the previously identified main options for combining the methods of securing the freedom of the law enforcement officer with the choice constructs, then we can find an undeniable similarity with one of them (“the use of evaluative categories is an alternative choice construct”). Indeed, “the essence of relations” is a purely evaluative term, the alternative is that an appropriate assessment of the “essence of relations” should entail either an appeal to customary law (the application of the existing custom of business), or the need to find a norm regulating similar relations. Moreover, such activity of the court, in its essence, will not differ much from judicial discretion in the case of "simple"
122 Chapter I. General theoretical aspects
law enforcement. The whole difference consists only in the types of sources: “simple” enforcement is characterized by the fact that certain legal consequences, which are alternatives, are indicated in the law (normative act), while the case considered above represents, in the end, a choice between the consequences provided for by the norm of the law, and the consequences arising from the custom of business.
Therefore, in our opinion, cases when the "substance of relations" is understood as some factual circumstances should also be attributed to the sphere of judicial discretion.
Of the conditions listed above, necessary for the application of the law by analogy, only the fact that there was no agreement between the parties remained. Considering that the establishment of factual circumstances is related to the issues of proof and that further we will consider separately some aspects of this problem, we should go directly to the analogy of the law.
In legal theory, questions of analogy of the law have been studied quite fully. Moreover, this institution itself has been known since the time of Roman law: “If we do not have written laws for any business, then we should observe the established morals and customs; and if this is not for any business, then (should be observed) the closest and following from the latter (rule). "(D.1.3.32). Therefore, using the available approaches, it is necessary to try to resolve the main issue - the question of the availability of freedom of the law enforcement officer in activities carried out in the application of norms by analogy.
For this, it makes sense to turn to the existing views on the essence of the analogy of the law. Some authors reduce the process of using analogy to
§ 5. General questions of law enforcement 123
exclusively to logical constructions 1. Others, in principle, without denying the need to use logical methods, simultaneously point to a certain creative character inherent in it. So, for example, K.I. According to GF Shershenevich, “the logical process of analogy of the law is revealed most correctly if we recognize in it the moment of creativity, which consists in the fact that the one who applies the law creates a new norm” 3. This point of view is shared by S. N. Bratus, A. B. Vengerov4, V. M. Zhuikov5.
Obviously, the use of exclusively logical methods excludes any freedom of the court and, accordingly, allows us to conclude that there are no prerequisites for discretion.
At the same time, understanding the analogy of a law as a legal phenomenon containing a certain creative element makes it necessary to investigate in more detail the area where a certain incoherence of the law enforcement officer arises. It is hardly possible to agree with the opinion of K.I.
1 See, for example: Alekseev S.S. General theory of socialist law. Issue 4. Sverdlovsk, 1966, p. 54.
2 Komissarov K. I. Tasks of judicial supervision in the field of civil proceedings. P. 33.
3 Shershenevich G.F. General theory of law. P. 318.
4 Bratus S. N., Vengerov A. B. Judicial practice in the Soviet legal system. M., 1975.S. 16.
5 Zhuikov VM Judicial protection of the rights of citizens and legal entities. P. 146.
124 Chapter P. General theoretical aspects
One should also criticize GF Shershenevich's statement: the creation of legal norms is outside the competence of the court, “the court does not“ invent ”its own rule, but seeks to find a rule that regulates public relations that is closest to the one that it faced” 1. However, it should be noted here that GF Shershenevich is talking about an "imaginary norm" 2. Strictly speaking, all norms are in a certain sense "imaginary" (in the theory of law, a norm is traditionally separated from a specific article contained in a normative act). But GF Shershenevich's “imaginability” (if I can put it that way) is of a somewhat different kind: if, in the absence of gaps in regulation, the norms are assimilated by the law enforcer with the help of certain methods of interpretation, then in a situation with the analogy of the law, “the spread of the norm established for one case (subject , relations, type of objects, etc.), on another, not provided for by law, but a homogeneous case by the identity of the basis ”3. And it is this identity of the foundation that leads to a completely artificial construction of a syllogism, which in essence becomes a rule (“imaginary norm”) for resolving a dispute.
But what is the identity of the foundation4? For G.F.Shershenevich (and in this he should be co-
1 Bonner A.T. Application of regulations in civil procedure. P. 111.
2 Shershenevich G.F. General theory of law. P. 319.
3 Vaskovskiy E. V. Guide to the interpretation and application of laws. P. 114.
4 This term seems to us the most successful, therefore, although G.F. GF General theory of law, pp. 318–319).
§ 5. General questions of law enforcement 125
read) is a certain set of legal facts, which mainly causes legal consequences. This very aggregate of legal facts appears as the connecting bridge that brings the attitude, which has not been subjected to legislative regulation, to a specific norm1. And thus, the court faces a rather difficult task of finding an identical basis and, accordingly, that already existing norm, which will eventually be applied.
It is easy to see that the identity of the base can be found in several norms in a row. Then “the court must choose the law that is closest in meaning. "2.
Undoubtedly, in the absence of sufficiently clear rules for finding "legislation regulating similar relations", there will always be a certain scope in the activities of the law enforcement officer: which conditions are to be recognized as identical, which of the norms is considered closer in meaning, etc.
But is it permissible in this case to talk about judicial discretion? Here it is worth again drawing a parallel with interpretation: in law enforcement, both the analogy of the law and the interpretation pursue a single goal - to find a specific rule of conduct that should be applied to the actual relations of the parties. Both the interpretation and analogy of the law (with the exception of the case highlighted by us, when the question of the consistency of the norm with the essence of relations as a set of certain factual circumstances is resolved) are indifferent to the existing specifics of a particular case. And so, and others
1 See: Shershenevich G.F. General theory of law. S. 318–319.
2 Komissarov K. I. Tasks of judicial supervision in the field of civil proceedings. P. 35.
126 Chapter P. General theoretical aspects
Gym can be practiced in general, regardless of a specific incident. This similarity in the most essential (for the problem of judicial discretion) features allows us to repeat our earlier conclusion: the analogy of the law (as well as interpretation) is outside the scope of judicial discretion. Although, of course, this in no way refutes the provisions on the elements of freedom available in both cases.
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higher powers, give me hope and resources to repeat the past. the law cannot take into account all aspects of life.
here are the norms:
Article 55. Evidence
1. Evidence in the case is information about the facts obtained in the manner prescribed by law, on the basis of which the court establishes the presence or absence of circumstances substantiating the claims and objections of the parties, as well as other circumstances that are important for the correct consideration and resolution of the case.
This information can be obtained from explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions.
from the Code of Civil Procedure of the Russian Federation. (Call for abbreviations, I don’t like it myself. Just for speed. And the site of professionals, they know abbreviations).
Article 71. Written evidence
1. Written evidence is containing information about the circumstances that are important for the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including those obtained by facsimile, electronic or other communication or in another way that allows you to establish the authenticity of the document. WRITTEN EVIDENCE RELATES JUDGMENTS AND DECISIONS OF THE COURT, OTHER JUDICIAL RULES, minutes of the performance of procedural actions, minutes of court sessions, appendices to the protocols of the performance of procedural actions (diagrams, maps, plans, drawings).
from the same Code of Civil Procedure of the Russian Federation
--- note to article 71 of the Code of Civil Procedure of the Russian Federation - mind you - not a word about the same parties or the same circumstances. therefore, ANY JUDICIAL ACTS AND RULES.
this principle of freedom and discretion is spoken of:
Article 2. Tasks of civil proceedings
The tasks of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, other persons who are subjects of civil, labor or other legal relationships. Civil proceedings should contribute to the strengthening of law and order, the prevention of offenses, the formation of a respectful attitude towards the law and the court.
Article 3. Right to go to court
1. The interested person has the right, in accordance with the procedure established by the legislation on civil proceedings, to apply to the court for the protection of violated or disputed rights, freedoms or legitimate interests, including with a claim to award him compensation for violation of the right to legal proceedings within a reasonable time or the right to performance a court order within a reasonable time.
Article 11. Normative legal acts applied by the court in resolving civil cases
1. The court is obliged to resolve civil cases on the basis of the CONSTITUTION OF THE RUSSIAN FEDERATION (note of the participant - and she speaks about the unity of the court of practice and the protection of the highest value), international treaties of the Russian Federation, federal constitutional laws, federal laws, normative legal acts of the President of the Russian Federation , regulatory legal acts of the Government of the Russian Federation, regulatory legal acts of federal government bodies, constitutions (charters), laws, other regulatory legal acts of government bodies of the constituent entities of the Russian Federation, regulatory legal acts of local government bodies. The court resolves civil cases on the basis of business customs in the cases provided for by regulatory legal acts.
2. The court, having established, when resolving a civil case, that a normative legal act does not correspond to a normative legal act that has great legal force, applies the norms of the act that has the greatest legal force.
3. In the absence of legal norms governing the disputed relationship, the COURT APPLIES THE RULES OF LAW REGULATING SIMILAR RELATIONS (ANALOGY OF THE LAW) (participant's note - and, therefore, the interpretation of the norms of law given by other courts), and in the absence of such norms
Analogy of the law- This is the decision of a specific legal case on the basis of a legal norm, calculated not for data, but for similar, close, kinship relations.
With the analogy of the law, the decisive basis that predetermines the possibility of applying a particular rule is a significant similarity between those relations that are not directly provided for by law and those that are regulated by specific legal norms. Moreover materiality similarities also cover the area of law (uniformity of the legal regime).
The need to apply this technique lies in the fact that a decision on a legal case must necessarily have a legal basis. Therefore, in the absence of a rule that directly provides for a controversial case, the norm governing relations similar to the controversial one is applied, which is used as a legal basis when making a decision.
In civil law, to apply the analogy of the law, it is not enough that there is no norm directly regulating the disputed relationship. It is also necessary that there is no agreement between the parties and the usual business practice applicable to the disputed case.
Application of the analogy of the law is possible in the case when:
a) there is no legal norm necessary for making a decision on the case under consideration;
b) there is no business custom that regulates this social relationship;
c) the relationship is not settled by agreement of the parties;
d) in the legislation there is a norm regulating similar relations. On the basis of this rule, a decision is made in the case.
If there are all of the above circumstances, but there is no norm regulating similar relations, then the decision is made by analogy of law.
Analogy of law- This is the adoption of a decision on a specific case on the basis of general principles and the meaning of law in the absence of a rule regulating similar relations.
Distinguish between general principles of law and principles of individual branches. General legal ones include: the principle of equality of all before the law, the principle of the rule of law over other normative legal acts, the principle of the primacy (primacy) of international law over domestic law, the principle of legal responsibility for guilt, the principle of justice, the principle of democracy, the principle of huma -nism, the principle of legality, etc. All general principles of law are determined by the nature of social relations and are closely interrelated.
The principles of individual branches, as a rule, are enshrined in codified normative legal acts and characterize the most essential features of a particular branch of law. As an example, we can cite the principles of civil law: the principle of equality of participants in civil legal relations, the principle of inviolability of property, the principle of freedom of contract, the principle of inadmissibility of interference in private affairs, the principle of the unhindered exercise of civil rights, the principle of restoration and judicial protection of violated rights ...
The principles of law, as a rule, are enshrined in a normative manner, primarily in the Constitution. Therefore, judges, when analogous to law, often refer to the corresponding articles of the Constitution. In general, the application of the law by analogy is limited.
Thus, the application of the analogy of law is possible in the presence of two conditions:
»Upon detection of a gap in legislation;
»In the absence of a rule regulating similar relations.
The use of analogy significantly enriches legal practice and can serve as a basis for the development of legislation.
Analogy is excluded in criminal and administrative law.
An analogy is permissible only when this issue is not directly regulated in the law and the legislator does not connect the onset of legal consequences only with a specific law, and the issue requires a legal solution.
Where to look for hidden errors in the court's decision?
12 December 2013
« The trial did not become either fast, right or fair
».
http://www.bbc.co.uk/russian/russia/2013/12/131212_putin_annual_address_preview.shtml
16 February 2016
Seminar-meeting of presidents of courts
« Those judges who are hindered by any other interests from complying with the requirements of the current legislation,
Of the Code of Judicial Ethics, it is worth, of course, to look for another place to apply your knowledge and strength.
»
At a conference on miscarriages of justice and their consequences,Olga Yegorova, chairman of the Moscow City Court, proposes to discuss the issue of financial liability of judges for deliberate errors.
"It is worth discussing at the federal level the issue of property liability of judges who made deliberate mistakes ", - said Yegorova, noting that the consequences of such mistakes are very serious.
She said that in the Russian Empire, judges had to pay compensation for their violations out of their own pockets. "I will reproduce 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 from 1832. (Article 678 volume X part 1)
A message on the NEWSru.com news channel
« Moscow judges do not know the laws, and their decisions are not motivated.
The quality of the decisions of the Moscow courts is worthless, and the time frames for the consideration of cases are being delayed.
There are many complaints about the quality of writing court decisions, and this applies to both criminal, civil and administrative cases.
Decisions are made without examining evidence, or with references to evidence that has not been the subject of forensic research.
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 errors and the quality of writing court decisions ».
Chairman of the Moscow City Court Yegorova O.A.
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 assume - said about the decision)
Ten requirements for a court decision.
The ruling of the court of first instance, by which the case is resolved on the merits, is a court decision if:
1. The decision is legal if, when making the decision, procedural and substantive law or an analogy of law is observed.
2. The decision is justified when the facts are supported by the investigated evidence, which in turn is relevant and admissible or does not need proof.
3. The decision must necessarily indicate the law by which the court was guided. The reasoning part indicates the material law applied to legal relations and procedural norms.
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; Resolution 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 on the Protection of Human Rights.
5. In addition, the decision should be based only on the evidence that was examined by the court of the first instance.
6. The decision is illegal if it is based on evidence not examined in the court session or 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 evidence and must be evaluated along with other evidence. In this case, the assessment of the forensic examination should be fully reflected in the court decision: has the expert given a full analysis of the case materials, what are the expert's conclusions based on, whether the expert has accepted all the case materials, etc.
8. When making a decision, a judge must take into account that the previously considered civil and arbitral awards 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 the change in the subject or basis of the claim or the increase / decrease in the amount of the claim, as well as, for example, the recognition of the claim by the defendant.
10. The resolutive part of the decision must contain comprehensive and clear conclusions that follow from the reasoning part of the decision.
What do you think?
VICTORY IN COURT
- ... this is the sum of unknowns: people, luck, knowledge and experience, patience, persuasion and argumentation ...
The result of the unknown amount is called the operative part of the decision - such an indefinite, devoid of meaning "now", a sense of the present moment, a combination of lies, inner convictions and reservations.
- And what about "now"? ...
There are proven ways to win in court: playing on “their” sense of their own superiority, and later, with complaints, question the mysticism of the “secret brotherhood of the mantle”, comically display 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 considered valid.
1. All the circumstances were established and the evidence was investigated and reflected in the court decision.
2. Certain evidences confirmed the circumstances.
3. All the necessary circumstances have been established for the correct resolution of the court case.
4. The court assessed all 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 court proceedings, which were not reflected in the operative part or if the court did not indicate the amount of the awarded amount.
European Convention on the Content of a Judgment.
All of the above are elementary truths for any lawyer. But in judicial practice, these rules are ignored by the judiciary.
Judges unmotivatedly ignore procedural norms, 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 record of the court session of the court of first instance does not reflect some important facts, for example, witness testimony, which, in accordance with Russian procedural legislation, is not reflected in any other documents, except for the record of the court session.
Ignoring the rulings in the minutes of the court session prevents a 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 the courts of second instance to refer to testimony 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 assess all the available evidence in the case in its entirety. Conclusions not based on a comprehensive, complete, objective study of the evidence available in the case.
LABOR OF CONSCIENCE - SEEKING THE TRUTH.
(lat.Opus de conscientia - invenire veritatem)
The only norm on the basis of which judges are called to conscience ... The Law "On the Status of Judges in the Russian Federation" ( one word "Conscience" in the whole law).
And other standards "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 not to profess any, 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, jury, as well as the prosecutor, the investigator, the interrogating officer evaluate the evidence according to their inner conviction, based on the totality of the evidence 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 on religious associations
Law of the Russian Federation of 26.06.1992 N 3132-1
"On the status of judges in the Russian Federation"
Article 8. Oath of a judge
« 1. A judge, first elected to office, takes the following oath in a solemn atmosphere:
"I solemnly swear to honestly and conscientiously fulfill my duties, to administer justice, obeying only the law, to be impartial and just, as the duty of the judge and my conscience
".»
Federal Law of 30.05.2001 N 70-FZ
"On arbitration assessors of commercial courts of the constituent entities of the Russian Federation"
Article 2. Requirements for arbitration assessors
« 3. The arbitration assessor, who has started to perform his duties for the first time, shall take the following oath in an open court session:
"I solemnly swear to honestly and conscientiously fulfill my duties, to administer justice, obeying only the law, to be impartial and fair, as my civic duty and conscience
".»
Law of the Russian Federation of 07/02/1992 N 3185-1
"On psychiatric care and guarantees of the rights of citizens in its provision"
Article 39. Obligations of a medical organization providing psychiatric care in inpatient conditions
Order of the Prosecutor General's Office of Russia of December 25, 2012 N 465
"On the participation of prosecutors in the judicial stages of criminal proceedings"
«… public prosecutor, guided by the law and conscience, can only drop charges after a thorough examination of the evidence.»
UDC 343.98
O. Yu.BULULUKOV,
Cand. jurid. Sci., Associate Professor, National University "Law Academy of Ukraine named after Yaroslav the Wise", Kharkov
THE PLACE AND ROLE OF ANALOGY IN TACTICAL DECISION-MAKING IN PREDICT.
The concept of "analogy" is considered, as well as its place and role in making tactical decisions during the pre-trial investigation on the example of the investigation of murders "without a corpse".
Key words: tactical decision, analogy, investigative situation, murders “without a corpse”.
Making the right tactical decision during the pre-trial investigation requires a consistent analysis of the available evidence and the relationship between them. The cognitive activity of the person conducting the investigation involves the use of various methods to investigate the mechanism of the crime in all its details. R.S. Belkin, A. N. Vasiliev, V. P. Kolmakov, V. K. Lisichenko, M. V. Saltevsky, M. Ya. Segai and others have addressed the issues of using methods in forensic science at different times. mental tasks, solved using various methods, contribute to the adoption of effective tactical decisions.
In this regard, it is of interest to consider the place and role of the analogy method in making tactical decisions during the pre-trial investigation.
The most complete logical nature of inference by analogy was investigated by the philosopher A.A.Starchenko. Basing his conclusions on the materials of historical and legal research, A.A. Starchenko focused on the method of logical transition from the known to the unknown, the starting point of which is knowledge of another separate phenomenon. The difference between this inference from other forms of logical thinking is
in the formation of a conclusion about a separate, specific phenomenon on the basis of knowledge about another, by the logical transfer of a feature from one subject to another. "Such a logical transfer of a certain feature from one single object to another on the basis of the similarity of these features in a number of other features is called inference by analogy."
The condition for "inference by analogy" or "analogy method" is the presence of similar features in both investigated phenomena. At the same time, if a new feature is found in one of the compared phenomena, then based on the previously established similarity, it is concluded that this feature is also inherent in another object. By the nature of the transferred attribute, in the process of researching the desired object, the analogy can be divided into: a) the analogy of the qualities and properties of objects; b) the analogy of relations arising between certain objects [Ibid, p. ten].
The assimilation of one object of research to another presupposes the establishment of the similarity of those of their features that determine the essence of the objects being compared. "Inference by analogy will fulfill its role in solving a crime only if, in the course of the investigation, similarities are found in essential, specific, and not random and secondary points, and the differences between them are not ignored." It will not be true, for example, the judgment that the method of investigating murders with dismemberment of the corpse is similar to the method of investigating murders without a corpse, only on the grounds that a criminal case has been initiated under one article of the Criminal Code, which provides for punishment for committing murder. The recommendations set out in the named methods have significant differences in the organization of disclosure and investigation and coincide only in certain typical moments inherent in the investigation of murders. For a conclusion by analogy, the essential fact is not a simple coincidence of the features of the objects under study, but their interrelation and internal unity.
Derivation of inference by analogy presupposes the identification of a certain set of features that coincide in the objects, which will make it possible to draw a conclusion about the similarity of the objects of study. However, one should take into account the fact that the greater the similarity between the compared objects, the less the heuristic value of the analogy. In the theory of modeling, for example, it is quite right to believe that a model that is too distant can be misleading, and that a model that is too “accurate” loses its meaning and becomes sterile ”. This statement is also true for the use of models in the investigation of crimes. The lack of information in the model that can be used as evidence makes it impossible to use it when drawing analogies and making tactical decisions.
Used in inference by analogy, the method of comparing the characteristics of the objects under study is also used in forensic identification. However, the differences lie in the objects compared with each other. Objects of identification are derived from one another, and therefore the ultimate goal of identification is to establish identity. Unlike objects of identification, objects of analogy application do not have such connections among themselves, but they have similar features that allow us to draw a conclusion about their similarity.
An essential moment of cognition of the desired object by analogy is the formation of a conclusion about the probabilistic finding of signs in it, which are inherent in the object, which, in assimilation, performs the role of a certain "standard", a source of evidentiary information.
However, it should be noted that the probability of a conclusion does not mean that it is classified as false or, conversely, as a group of true ones. “The conclusion is precisely because it is probable that its truth is possible. But at the same time, the possibility of truth does not exclude the possibility of falsity, and as a result, no probable conclusion, even the highest degree of probability ... does not exclude the possibility
errors ". Checking the probabilistic conclusion, obtained using analogy, by means of forensic tactics and justifying it, provides an opportunity to find direct evidence incriminating the criminal.
When using the analogy in relation to making decisions on various circumstances related to the investigation of crimes, it seems to us that certain “criminal standards” (criminal schemes) that are characteristic of various categories of crimes are relevant. These may include: methods of committing crimes, methods of concealment, some data about the identity of the offender. These "standards" can be the starting points for making a decision.
The use of the method of analogy can be traced to the example of the investigation of murders "without a corpse". It is well known that, as a rule, murders “without a corpse” are committed by persons close to the disappeared person. ... When analyzing the situation of the disappearance of a person with suspicion of murder, the involvement of relatives and close persons of the disappeared in the commission of the crime, presupposes, by analogy, a careful study of the circle of persons close to the disappeared. The signs that are compared in this case are inherent in: the environment of disappearance; relationships with loved ones; behavior of loved ones ("negative circumstances"); the motives for the murder; the method of hiding the corpse; traces of the murder.
The use of the method of analogy in assimilating the primary information about the disappearance of a person to cases known to investigative practice allows one to find coincidences in it. Despite the probabilistic nature of the coincidences, the latter, if true, contribute to the knowledge of the circumstances of the disappearance of a person and his murder.
The effectiveness of the investigation is facilitated by tactical decisions aimed at establishing signs (traces) of the murder of the disappeared person. The amount and nature of information expected from
decision-making is determined by the coincidence of the signs of the investigative situation that has developed in the investigation, and the one that took place earlier. This statement allows us to conclude that the result of making a tactical decision using the analogy method may have uncertain qualitative and quantitative characteristics.
The probabilistic conclusion about the location of the traces of the murder during the inspection and search at the place of residence of the disappeared person (or another person close to the disappeared) makes it possible to identify these traces. The conclusion about the possible ways and places of concealment of the corpse of the disappeared person or his remains is also probabilistic, which, when checked, can also lead to the establishment of the place of concealment of the corpse.
The widespread use of the analogy method in the investigation of these murders is justified by the small amount of information about the murder at the initial stage of the investigation. The need to obtain orienting information about a crime presupposes the use of the analogy method.
The application of the analogy can also be traced on the example of the investigation of bribery in establishing the methods of committing and concealing this crime. The methods of committing and concealing these crimes, used when applying analogy, are quite typical and can be systematized in the process of analyzing the materials of practice. However, in the current reform period, the methods of committing and concealing have become more sophisticated, due to the involvement of commercial structures, banks, registration authorities, etc. in criminal activities.
The use of analogy involves the use of so-called "information models" of committing and concealing crimes, as well as their disclosure and investigation. Knowledge of such models allows them to logically transfer the signs they have to individual elements of the current investigative situation and, having identified them in a new capacity, use them as evidence.
To determine the possibilities of using information models in the investigation, it is necessary to investigate some aspects of the concept and formation of a model of the investigative situation.
At a certain stage of the investigation, the investigative situation reflects certain information about the event of the crime. The source of this information is the material and ideal traces of the crime, which allow mentally reconstructing the situation and reconstructing the model of the crime mechanism. Thus, according to TS Volchetskaya, “a model of a criminal situation is a mental representation of an investigator based on the available information about the event being investigated, explaining the general content of the criminal situation as a whole, its individual elements,“ revealing ”their interrelation and explaining their interdependence”.
This definition quite fully reveals the essence of the model of the investigative situation, although it is defined as "criminal". (It seems to us that a “criminal” situation is before the initiation of a criminal case, and in the course of an investigation it acquires the status of “investigative”).
However, as applied to the investigation of murders “without a corpse,” the model of the investigative situation at the initial stage of the investigation, as a general rule, does not contain complete information and does not explain many of its elements and their interrelationships.
Considering the structure of the model of a criminal situation in general, TS Volchetskaya calls it “the following main blocks: a) information about the subject of the crime; b) information about the object; c) the motive and purpose of the deed; d) information on the means, method and mechanism of committing a crime (on the actions committed by the offender and the victim, the method of preparing, committing, concealing a crime); e) information about the situation in which the crime was committed; f) information about the place and time of the commission
crimes; g) information about other participants in the crime, accomplices, eyewitnesses. "
The specified list of structural blocks does not contain a direct reference to information about the victim as a structural element. In our opinion, information about the victim is no less important than information about the offender. This can be explained by the disclosure of a significant number of violent crimes, using information about the victim. In the murders "without a corpse" we are considering, information about the victim allows us to put forward versions regarding the person who committed the murder and to establish the place and method of hiding the corpse.
The practice of investigating the murders and other crimes in question shows that information models can be different in terms of the information they contain and reflect different aspects of the investigation process. In this study, of interest are the models of the criminal's actions to commit a crime, the motives of such actions, actions to conceal the crime, the mechanism of trace formation.
The information model also represents the activity for the disclosure and investigation of such crimes, which provides for systems of investigative and other actions used in the investigation. The use of the analogy method in the investigation of crimes depends on the possession of information about the commission, disclosure and investigation of similar crimes. Moreover, the more such knowledge, the more saturation the models of their disclosure and investigation acquire.
Using analogy when making tactical decisions in
investigation of crimes allows you to fully use the means of forensic tactics for effective disclosure and investigation of crimes.
Bibliography:
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3. Volchetskaya TS Forensic situation / TS Volchetskaya. - M.: Moscow State. un-t, 1997.- 247 p.
4. Myshkov Ya. E. Bribery: a method of investigating crimes /
Ya.E. Myshkov. - H.: Finn, 2011 .-- 173 p.
5. Starchenko AA The role of analogy in cognition (based on historical and legal research) / AA Starchenko. - M.: Higher school., 1961. - 52 p.
6. Starchenko A. A. Logic in judicial research / A. A. Starchenko. - M.: Gosyurizdat, 1958 .-- 235 p.
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Bululukov O. Yu. Misce and the role of analogy in accepting tactful decisions on the pre-vascular process.
The concept of "analogy" is analyzed. The glance and the role of the analogy in the acceptance of tactful decisions on the pre-vascular service on the butt of the examination of the embankments "without a corpse" is seen.
Key words: tactful decision, analogy, situation, driving “without a corpse”.
Bululukov O. Yu. Place and role of the analogy’s in the making of tactical decisions on pre-trial investigation.
It is analyzed the concept "analogy". The place and role of an analogy in making of tactical decisions on pre-trial investigation on the example of an investigation a murder "without a body".
Key words: tactical decisions, analogy, investigational situation, murder "without a body".