Analogía del derecho en la práctica educativa del derecho civil

The analogy of law in civil law educational practice

Viktor Mikryukov

Kutafin Moscow State Law University (MSAL), Moscow, Russia

Orcid ID: https://orcid.org/0000-0002-6856-1627

Recibido: 03 de julio de 2020 Aceptado 07 de octubre de 2020

Resumen

El objetivo de esta investigación fue mostrar cuán activamente se aplica el mecanismo de

analogía legal en la práctica actual del derecho civil, identificando las razones del papel

principal de la analogía legal como herramienta activa en el proceso de administración de

justicia. El método de analogía fue considerado como la herramienta clave del objeto del

estudio, y junto con los instrumentos jurídicos y técnicos comparativos especiales, el autor

aplicó métodos lógicos generales que son característicos de los estudios más civilizados, como

el análisis y síntesis, inducción y deducción, comparación y generalización. Además, el autor

definió algunos casos importantes que se decidieron mediante la aplicación de analogías legales

y pueden constituir la base para futuras investigaciones en el desarrollo de la práctica judicial

pertinente. En este sentido, el aporte del autor consiste en un nuevo concepto de la correlación

entre el desarrollo y el desglose de los estándares legales y el grado de demanda de analogía

legal en la jurisprudencia.

Palabras clave: analogía jurídica, derecho civil, ley, justicia, legislación, jurisprudencia.

Abstract

The objective of this research was to show how actively the legal analogy mechanism is applied

in current civil law practice, identifying the reasons for the main role of legal analogy as an

active tool in the justice administration process. The method of analogy was considered as the

key tool of the object of the study, and together with the special comparative legal and technical

instruments, the author applied general logical methods that are characteristic of the most

civilized studies, such as analysis and synthesis, induction and deduction, comparison and

generalization. Furthermore, the author defined some important cases that were decided by

applying legal analogies and may form the basis for future investigations in the development of

relevant judicial practice. In this sense, the author's contribution consists of a new concept of

the correlation between the development and breakdown of legal standards and the degree of

demand for legal analogy in jurisprudence.

Correspondencia al autor:

E-mail: mikryukov.viktor@yandex.ru

Apuntes Universitarios, 2021: 11(1), enero-marzo

ISSN: 2304-0335 DOI: https://doi.org/10.17162/au.v11i1.544

apuntesuniversitarios.upeu.edu.pe

ISSN 2312-4253(impresa)

ISSN 2078-4015(en línea)

Keywords: legal analogy, civil law, law, justice, legislation, jurisprudence.

Introduction

Legal gap is regarded as the key reason for legal uncertainty, which is considered a

negative factor and a defect in the legal system that impedes the achievements of the necessary

legal results (Davis, 2011). Likewise, are situations that occur when the social relations,

included in the subject of civil law, are not directly regulated by law or contract and there is no

custom applicable for such relations (Romanenko, 2017), namely, when there is a gap between

a fact requiring the reaction of the legislator and relevant regulatory material.

A condition of legal uncertainty is also observed when there is no formal legal gap;

however, existing legislation is not able to respond adequately to some “mutations” of social

relations, when the latter take new features in specific socio-economic conditions. It is

impossible to ignore these characteristics to provide harmonious implementation of basic civil

legal principles, such as participants’ equality, inviolability of property, freedom of contract,

impermissibility of any arbitrary interference with private affairs, the necessity of unhindered

exercise of civil rights, and ensuring the guaranty of restoration of violated rights and their legal

protection (Civil Code of RF).

Therefore, the author of the present work points out the fundamental importance of

striving to achieve absolute legal certainty around civil law responsibility as well as the

inadmissibility of denial of justice and ensuring the civil rights protection in terms of the

absence of proper regulatory material. In this context, it is worth highlighting such a powerful,

traditional (Malyushin, 2015), and the universal (Demin, 2017) creative tool to address legal

shortcomings as the analogy of law. Nowadays, the study of the mechanism of the analogy of

law depends on the continuous complication of economic life, i.e., the intensification of the

implementation of information and telecommunication networks and electronic technologies,

the development of robotics and artificial intelligence (Andreev, 2020), and the active genomic

research and interventions in the human genome (Bogdanova, Maleina, and Ksenofontova,

2020). Thus, new unidentifiable regulations are being introduced and the number of relations

to be included in the sphere of legal impact is increasing. These relations fall outside existing

civil law regulation. At the same time, there is no law (or other normative act) that would

regulate similar relations, and could be applied for the analogy of law.

Literature review

The analogy method in legal argument is regarded as a very common, convenient, and

effective means to bridge the gap between facts and rule. In the theory of law, the relevant

application of legislative rules governing relations similar to the disputed (not directly

regulated) is defined as the analogy of law—analogia legis (Weinreb, 2005). According to the

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analogical reasoning under the rules of statutory analogy, a judicial conclusion is drawn from

the case that has already been classified (normatively identified) and assessed on another case

based on similarities. Therefore, legal norms are applied to the situations that are not direct

subjects to the relevant classification (Macagno, 2009). In Russia, the application of civil law

by means of analogia legis is directly permitted for civil disputes (Civil Code of RF). If such a

legal gap was identified, and it is impossible to apply the analogy of law to overcome it, Section

2 of Article 6 of the Civil Code of the Russian Federation provides a mechanism of the legal

analogy—analogia iuris, i.e., the determination of the rights and obligations of the participants

in a disputed relationship based on the general principles and meaning of civil law, as well as

the requirements of good faith, reasonableness, and justice.

According to juristic theory, legal analogy is established not according to specific

norms, but according to the so-called “general principle of law” (Damele, 2014), which is

regarded as “more mysterious and puzzling than analogia legis”, as it is associated with

axiology and the necessity to ensure internal consistency of the legal system (Koszowski, 2017).

Therefore, the analogy of law can be an instrumental for the prompt perfection of the law, and

can serve as “something more” than the logical device used by the court (Tsikhotsky, 2011). In

addition, the analogy of law effectiveness in exercise the subjective potential of the law enforcer

(personal experience and worldview) contributes to the resolution of the most difficult legal

situations (Shindyapina and Boshno, 2006), ensuring the spirit of law (Anisimov, 2016) and the

implementation of the real—immediate, direct—functioning of the basic principles and the

meaning of legislation (Kuznetsova, 2006).

The implementation of the mechanism of the analogy of law in making legal decisions

contributes to a serious discretion of the executor, which sometimes qualifies analogical

reasoning as “a mask for unrecognized judicial lawmaking” (Schauer and Spellman, 2017).

Therefore, there is a certain amount of uncertainty in the mechanism of legal impact. Since the

tendency to increase the uncertainty in the law is “extreme” (D'Amato, 2010), it is logical to

assume that the role of analogia iuris in legal regulation should increase.

In the doctrine, the analogy of law is mostly regarded as “spare”, “the worst” (Rovny,

2011) and “exceptional” instrument, used when all other means have been exhausted (Balashov

and Mishutina, 2009), which is below the last stage in the hierarchy of permissible civil legal

regulations (Braginsky and Vitryansky, 2001). Some authors approved the practice of

overcoming legal gaps by means of the analogy of specific rules of the law. However, they

pointed out the impossibility or at least undesirability of the implementation of the analogy of

law, since the latter is less consistent with the requirements of legality consolidation, and creates

the basis for abuse while using discretionary capabilities of the officials that is inevitable in

terms of the analogy of law application (Szabo, 1964).

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Contemporary scientists and law practitioners note that although the application of the

analogy of law in substantive and procedural matters is not excluded, it is implemented

“relatively rarely” (Slepenkova, 2011), “rather rarely” (Malyushin, 2015), “rarely” (Kulakov,

2013), and “extremely rarely” (Alieskerov, 2002). In courts, the analogy of law as a method of

overcoming gaps in civil law is applied “sporadically” (Panova, 2012), “inappreciably”

(Polyakov, 2014) or “not involved at all” (Bevzenko, 2010). It is noted that when the theoretical

considerations about the analogy of law and legal analogy are transferred to the practical aspect

of a particular industry, the application of analogy becomes a very controversial institution,

which is difficult to implement).

Because of the logical development of this idea, we can conclude that the demand for

the analogy of law in resolving civil law disputes will tend to zero or disappear completely.

According to such reasoning, as well as in the view of the comments on the threat and

destructive nature of the analogy of law, it is worth highlighting that while considering those

rare cases that require turning to the analogy, the judges face the complications that can cause

certain judicial errors (Balashov and Mishutina, 2009). Therefore, the assumption that it is

inappropriate to correlate the analogy of law with the establishment of the legislation meaning,

as well as the reasons to exclude the analogy of law from the provisions, are to be considered

as grounded and promising. However, relying on a general assessment of analogy as a

fundamental process that plays a central role in any legal reasoning (Hunter, 2008) and impacts

the entire legal process, it is worth highlighting the falseness of such ideas in terms of both the

approach and argumentation.

Materials and methods

This study is based on the doctrinal analysis of legal premise that follow the legal

theories, laws, and judicial practice materials. The key feature of the work is the reference to

both the provisions of well-known generalizing acts of the supreme judicial authority as well as

judicial acts that were not previously discussed theoretically, and when the executors of law

resolved the dispute by means of the analogy of law. A distinctive feature of the methodological

basis of the work was the concurrent application of the analogy method and other logical

methods of analysis and synthesis, induction and deduction, comparison and generalization,

typology and analogy, which are characteristic for civil law research (Luneva, 2015).

Results

This study refutes the scientifically accepted notion that the consequent complication

and itemization of civil legislation will lead to the fact that the analogy of law will not be

necessary, and the norm on the admissibility of such a technique by the courts will actually

acquire a metaphysical character.

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The idea has been suggested that if the law executor follows the principle of good faith

and other basic principles of civil law while solving a civil law conflict, the judicial act will

objectively reflect the necessity to amend or supplement current.

Discussion

Opposing the opinion of legal scholars and practicing lawyers, who consider the analogy

of law as an extraordinary (Bevzenko, 2010; Rovny, 2011) and exceptional (Balashov and

Mishutina, 2009) tool, it seems possible to provide some solid arguments. There is a misguided

concept that a qualitative improvement and a quantitative increase in the civil regulatory

normative array as a whole reduces the necessity for law enforcers to apply the method under

study for overcoming legal uncertainty.

Courts must make decisions that, while consistent with the letter of the law, also meet

the requirements of socio-economic justice (Laptev, 2015). Judges must require legislators to

disclose the consequences of approval of excessive amounts of compensation. Therefore,

according to the rules of Article 333 of the Civil Code of RF regarding penalties, courts must

consider analogous cases to assess (and if necessary, reduce) any civil law sanctions

(Mikryukov, 2017). Civil law, which was developed to coordinate the behavior of independent

individuals, is not able to keep up with the complexity of modern life. Individuals are able to

enter into contractual obligations not specified by law and to create objects that do not conform

to current regulatory statutes.

It is also obvious that general development and complication of the factors of civil law

interaction provide new areas of implementation of the analogy of law, including: private

relations that nowadays are insufficiently regulated, the application of genomic technologies

(Maleina, 2019), introduction of robots (Arkhipov and Naumov, 2017) and artificial

intelligence systems (Laptev, 2019), and the development of the digital economy as a whole

(Vaipan, 2017). Being a channel of direct application of the basic principles of civil law, the

analogy of law provides the necessity to include more actively civil law principles into the legal

regulation of public relations.

Some scholars generally assume that legal principles constitute the analogy of law

(Sizemova, 2015). The regulatory role of the analogy of law should not be underestimated in

neither doctrinal nor practical aspects, since there actually observed general increase in the

importance of civil law principles in the legal impact on public relations (Golubtsov, 2016), as

well as the calls for their greater influence not only on the process of creating legal norms, but

also on the practice of law enforcement (Bondarenko, 2013). Providing civil law impact on

public relations according to the requirements of good faith, reasonableness and justice, the

analogy of law becomes not only the means of gap overcoming, but also an effective way to

resist the attempts of law evasion (Veter, 2015) and other abuse of law (Volkov, 2010).

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Judicial practice confirms the present consideration (the Resolution No. 67/10 of the

Presidium of the Supreme Arbitration Court of RF dated April 27, 2010; the Resolution No.

12499/11 of the Presidium of the Supreme Arbitration Court of RF as of February 21, 2012).

Such a vivid and significant feature of analogy as its direct contact with legal creativity (Taylor,

2009) implies the ability of the analogy of law to perform a creative function in the process of

justice administration and to contribute to the development of law. It is not bad at all that there

is some uncertainty, introduced into the sphere of civil law through the analogy of law providing

a judge with certain discretion. Moreover, it is dialectically determined by the need for a

regulatory system in such institutions that can minimize the gap between state legislative efforts

and objective reality (Tsikhotsky, 2011). In this context, positive impact of the present feature

of the analogy of law is clearly demonstrated by judicial acts of higher courts, which not only

solved promptly the national wide-scale and high-profile problems, but also led to a relevant

adjustment of current legislation.

The author of the present work points out the significance of the position of the Plenum

of the Supreme Arbitration Court of RF declaring that justice and the general principles of civil

law imply the inadmissibility of foreclosure on mortgaged movable property acquired on an

indemnity basis from a mortgagor by a person who in good faith did not know, and should not

have known that the acquiring property was encumbered with a pledge. The introduced

provision contributed to the development of the “living” nature of the norm of Section 2 of

Article 6 of the Civil Code of RF and to the understanding that the ability to anticipate normative

changes is included in the analogy of law functional (Section 25 of the Resolution No. 10 of

February 17, 2011 “On Certain issues of application of legislation on pledge”).

On the one hand, the Plenum is not actually authorized to make law, although it specified

(for cases of acquisitions on good faith) the norm of Section 1 of Article 353 of the Civil Code

of RF on the preservation of the pledge holder's rights, regardless of the category of the owner

of the pledged property, and introduced a rule on the termination of the pledge right when the

pledged property is transferred to the acquirer on good faith. On the other hand, the Plenum not

only ensured the immediate application of the principles of civil law and protected a large

number of car owners who bought cars pledged to banks, previously purchased by their

counterparties on credit, but also anticipated the adoption of a new legal provision.

Nowadays (in the period after the adoption of the modern Civil Code of RF in 1994 until

2020), there is insufficient scientific research, as well as insufficient educational and

methodological coverage of the cases, of the analogy of law implementation in civil law

practice, although there is not any absence or shortage of such cases. Until recently, the

“Martynyuk Case”, considered in 1940 by the Supreme Court of the USSR, remained the only

practical illustration of the theoretical construction of the application of civil legislation through

the analogy of law (Ioffe, 2004). Law theorists and specialist in civil law were deprived of

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empirical material for the development of the analogy of law as an active, “living” institution.

Therefore, there is an increase in the demand for the analogy of law in the administration of

justice.

Conclusion

The results of this study confirm the idea of the current and inevitable in the future

significance of the analogy of law in civil law practice. The ability of the analogy of law in law

enforcement to perform a creative function and contribute to the development of law has been

proven. Courts directly implementing the mechanism of the analogy of law in resolving a

specific dispute are recommended not only to argue specifically the necessity of applying this

mechanism in a judicial act, but also to give the legislator a clear and unambiguous signal on

the necessity of specific legislative changes.

According to the analogy with the principle of intellectual intimidation attributed to

Socrates the idea was confirmed that an increase in the normative array inevitably entails the

contact of law with the legal void. Therefore, the increase in the number of disputes where law

enforcers appeal to the analogy of law requires adequate consideration in the civilized research

of lawmaking as well as in its educational process. It is necessary to intensify work on

collecting, analyzing, and summarizing examples of the immediate implementation of the basic

principles of civil law through the analogy of law.

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