GAPS IN THE RIGHT
- this is the absence in the legislation of the norm that is necessary for the regulation of the relationship falling within the scope of legal regulation.
P. in P. are found in the case of a situation where a controversial relationship is of a legal nature, is part of the scope of legal regulation, but is not provided for by the rule of law.
The reasons for the appearance of P. in P.:
1) the inability at the legislative level to resolve all life situations;
2) backwardness of legislation from public life;
3) shortcomings of legal technique. An effective way of eliminating P. in P.
May be the adoption of a new legal norm.
In jurisprudence, there are two main types of analogy: the analogy of law and the analogy of law.
The analogy of the law is the application to a norm of the law regulating
Similar relationships. The need for such application lies in the fact that a decision on a legal matter must have a legal basis. The application of the analogy of the law in cases of the discovery of P. in P. is provided by the legislator.
The analogy of law is the application to a dispute that is not settled in a particular norm in the absence of a rule regulating similar relations, general principles and the meaning of legislation (principles of law).
With the analogy of law, the principles perform a regulatory function and act as the only legal basis for law enforcement.
The analogy of law and the analogy of the law require certain conditions to be met that ensure their proper application. To use the analogy of a right it is necessary:
1) establish the legal nature of the life situation that requires a legal solution;
2) to make sure that there is no specific law in the legislation designed to regulate such situations;
3) to find in legislation the norm regulating a similar case, and on its basis
Resolve the case (analogy to the law), and in its absence rely on the general principle of law and resolve the case on its basis (analogy of law);
4) give a reasoned explanation of the reasons for applying the analogy of law or the analogy of law to this case.
By analogy, P. in P. is not eliminated, but only overcome. P. can be eliminated only by competent law-making bodies.
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