UDC 343.98

O. Yu. BULUKOV,

cand. legal Sciences, Associate Professor, National University"Law Academy of Ukraine named after Yaroslav the Wise", Kharkiv

PLACE AND ROLE OF ANALOGY IN TACTICAL DECISION-MAKING DURING PRE-TRIAL INVESTIGATION

The concept of "analogy", as well as its place and role in making tactical decisions during the pre-trial investigation, is considered on the example of the investigation of murders "without a corpse".

Keywords: 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. cognitive activity 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. 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 philosopher A. A. Starchenko studied the most complete logical nature of inference by analogy. 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 and other forms of logical thinking is

in the formation of a conclusion about a separate, specific phenomenon based on knowledge about another, by logically transferring a feature from one subject to another. “Such a logical transfer of a certain feature from one single object to another, based on the similarity of these features in a number of other features, is called inference by analogy.”

The condition of "inference by analogy" or "method of analogy" is the presence of similar features in both studied 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. According to the nature of the transferred attribute, in the process of studying 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. 10].

Assimilation of one object of study to another involves establishing the similarity of those features that determine the essence of the compared objects. “Inference by analogy will fulfill its role in solving a crime only if, in the process of 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 methodology for investigating murders with the dismemberment of a corpse is similar to the methodology for investigating murders without a corpse, only on the grounds that there is a criminal case initiated under one article of the Criminal Code, which provides for punishment for committing a murder. The recommendations set out in these 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 inference by analogy, an essential fact is not a simple coincidence of the features of the objects under study, but their interrelation and internal unity.

Drawing a conclusion by analogy involves identifying a certain set of features that coincide with objects, which will allow us to conclude that the objects of study are similar. 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 modeling theory, for example, it is quite right to assume that a model that is too distant can be misleading, while a model that is too “accurate” loses its meaning and becomes fruitless. 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 making analogies and making tactical decisions.

The method of comparing the features of the objects under study, used in the conclusion by analogy, is also used in forensic identification. However, the difference lies in the objects compared to each other. The objects of identification are derived from one another, and therefore the ultimate goal of identification is to establish identity. In contrast to the objects of identification, the objects of application of the analogy do not have such connections among themselves, but have similar features that allow us to conclude that they are similar.

An essential point in the knowledge of the desired object by analogy is the formation of a conclusion about the probabilistic presence of signs in it that are inherent in the object, which plays the role of a certain “standard”, a source of evidentiary information in the assimilation.

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 probable precisely because 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

mistakes". Verification of the probabilistic conclusion obtained using analogy, by means of forensic tactics and its justification, provides an opportunity to find direct evidence incriminating the criminal.

When using analogy in relation to decision-making 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 matter. These may include: methods of committing crimes, methods of concealment, some information about the identity of the offender. These "standards" can be the starting points for making a decision.

The use of the analogy method can be traced on 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 in case of suspicion of a murder, the involvement of relatives and close people of the disappeared person in its commission, by analogy, suggests a careful study of the circle of people close to the disappeared person. The signs that are compared in this case are inherent in: the environment of the disappearance; relationships with loved ones; the behavior of loved ones (“negative circumstances”); motives for the murder; method of hiding the corpse; traces of the murder.

The use of the analogy method in likening the primary information about the disappearance of a person to cases known to investigative practice makes it possible to find matches in it. Despite the probabilistic nature of 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.

A 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 person) makes it possible to identify these traces. The conclusion about the possible methods and places of concealment of the corpse of the disappeared person or his remains is also probabilistic, which, when verified, 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 involves the use of the analogy method.

The application of the analogy can 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 in applying the analogy are quite typical and can be systematized in the process of analyzing practice materials. However, in the current reform period, the methods of committing and hiding 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 the so-called "information models" of the commission and concealment of crimes, as well as their disclosure and investigation. Knowledge of such models makes it possible to logically transfer the features they have to individual elements of the current investigative situation and, having identified them in a new quality, use them as evidence.

To determine the possibilities of using information models in the investigation, it is necessary to study some aspects of the concept and formation of a model of an investigative situation.

At a certain stage of the investigation, the investigative situation reflects certain information about the crime event. The source of this information is the material and ideal traces of the crime, which allow you to mentally reconstruct the situation and recreate the model of the crime mechanism. So, according to T. S. Volchetskaya, “a model of a criminal situation is an investigator’s mental representation based on the available information about the event under investigation, explaining the general content of the criminal situation as a whole, its individual elements, “revealing” their relationship 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 process of investigation it acquires the status of “investigative”).

However, in relation to the investigation of murders “without a corpse”, the model of the investigative situation of 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 interrelations.

Considering the structure of the criminal situation model in general view, T. S. 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 about the means, method and mechanism of committing a crime (about the actions committed by the offender and the victim, the method of preparing, committing, concealing a crime); e) information about the circumstances 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 establish the place and method of hiding the corpse.

The practice of investigating the murders and other crimes in question indicates that information models can be different in terms of the information they contain and reflect various aspects of the investigation process. In this study, the models of the criminal's actions to commit a crime, the motives for such actions, actions to conceal the crime, and the mechanism of trace formation are of interest.

The information model is also an activity for the disclosure and investigation of such crimes, which provides for a system 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 become.

Using analogy in making tactical decisions in

investigation of crimes allows the full use of the means of forensic tactics for the effective detection and investigation of crimes.

Bibliography:

1. Belkin R. S. Collection, research and evaluation of evidence / R. S. Berkin. - M. : Nauka, 1966. - 295 p.

2. Bululukov O. Yu. Investigation of stabbing in case of presence of a corpse. Vydannya for investigators and identities] / M. I. Panov, V. Yu. Shepitko, V. O. Konovalova et al. - 2nd view., Rev. i add. - K.: View. Dim "In Yure", 2007. - S. 218231.

3. Volchetskaya T. S. Forensic situational studies / T. S. Volchetskaya. - M .: Moscow state. un-t, 1997.- 247 p.

4. Myshkov Ya. E. Bribery: a methodology for investigating crimes /

Ya. E. Myshkov. - H. : Finn, 2011. - 173 p.

5. Starchenko A. A. The role of analogy in cognition (on the materials of historical and legal research) / A. A. Starchenko. - M.: Higher school., 1961.- 52 p.

6. Starchenko A. A. Logic in forensic research / A. A. Starchenko. - M. : Gosjurizdat, 1958. - 235 p.

7. Formal logic: textbook / ed. I. Ya. Chupakhin, I. I. Brodsky. - L.: Leningrad. un-t, 1977. - 357 p.

Bululukov O. Yu. Misce and the role of analogy in making tactful decisions on the pre-trial investigation.

The concept of "analogy" is analyzed. The place and the role of analogy in the adoption of tactful decisions on the pre-trial investigation on the butt of the investigation of driving “without a corpse” are examined.

Key words: tactful solution, analogy, similar 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".

analogy law administrative law

Analogy of the law in civil, labor, family tax and other branches of law

By analogy of the law, the norm providing for a specific life situation, is absent in the law, therefore, there is a need to apply the rule governing close, similar legal relations. Depending on whether the norms of a branch of law are applied by analogy to relations that are the subject of regulation of the same or another branch of law, there are intra-branch and inter-branch analogy of the law Kartashov V.N. The theory of the legal system of society: Tutorial. In 2 vols. T. 1. Yaroslavl, 2005. S. 328 ..

The procedure for applying the analogy is a creative activity, which consists in developing the will of the legislator in law enforcement practice, and therefore the judge’s ability of analytical thinking in the relevant situation (when using analogy) must be very high. As a general rule, the application of law by analogy is permissible in cases where a different procedure for overcoming the gap is not indicated in the explanatory decisions of the highest judicial instances, and also if the analogy in these cases is not prohibited by them Alieskerov M. Procedural analogy in civil proceedings // Russian justice. - 2002.- No. 3.- P. 32. .

According to the Civil Code of the Russian Federation, the analogy of law involves taking into account the general principles and meaning of civil law and the requirements of good faith, reasonableness and justice. Code of Civil Procedure of the Russian Federation Civil Procedure Code Russian Federation dated November 14, 2002 No. 138-FZ (as amended on June 28, 2009) // SZ RF.- 2002.- 3 46.- Art. 4532. involves the decision of the case on the basis of the principles of the administration of justice in the Russian Federation. That is, the scope of application of the analogy of law includes the use of the principles of not only this industry, but also the general legal principles of law (as in civil law), and the principles of other industries (according to civil law).

The author sees the resolution of this situation as follows: in the event of a situation where it is not possible to resolve the incident using the analogy of the law, the law enforcement officer can base his decision on the rule of law of an adjacent area (necessarily adjacent, because it is impossible, for example, in civil law to use the rules criminal, etc.). Such an opportunity should be provided to law enforcement authorities, taking into account the interests of the latter: borrowing a “ready-made norm” facilitates the law enforcement process, in contrast to the development of a completely new solution. On the other hand, such borrowing must meet the requirements laid down in the principles of the original branch of law, other provisions that have the status of “fundamental”, and, in addition, general legal principles of law.

In this regard, it seems necessary to amend Art. 6 of the Civil Code of the Russian Federation, setting out the first part of it as follows: “In cases where ... relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to legislation regulating similar relations (an analogy of the law).

Thus, expanding the scope of the possible application of the norms, including the norms and other branches of law, the Civil Code of the Russian Federation will thereby provide an opportunity for the law enforcement agency to resolve unresolved situations not in relation to this industry, but on the basis of the actual “similarity of relations”.

The institution of analogy is designed to resolve problems that objectively arise for judges when resolving a specific dispute, regardless of whether representatives of science consider it possible to use analogy, in particular, the application of civil law norms by analogy in resolving disputes arising from labor relations.

For example, it seems appropriate to indicate in the Decree of the Plenum of the Supreme Court of the Russian Federation on the possibility of applying by analogy to the resolution of labor disputes the provisions of Ch. 12 of the Civil Code of the Russian Federation " Limitation of actions”, regulating the issues of suspension, interruption and restoration of the limitation period, since the current Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (as amended on July 17, 2009) // СЗ RF. - 2002. - No. 1. - St . 3. Consultant Plus: Arbitrage practice does not contain rules defining the concept of limitation period for labor relations, does not indicate the grounds for a possible suspension or interruption of the limitation period. Meanwhile, the relevant circumstances, which are connected with the decision of the issue of the timeliness of the employer's appeal to the court for damages, arise in practice. For example, the fact of causing harm was discovered, but a lengthy audit to determine the amount of damage caused, a protracted criminal investigation and consideration of a criminal case in court in order to identify the person guilty of causing damage, did not allow the employer to apply to the court in a timely manner; by the time the employee responsible for this was identified, the latter was in the Armed Forces, transferred to martial law (Article 202 of the Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ (as amended on July 17, 2009) // SZ RF.- 1994.- No. 32.- Article 3301.).

According to part 2 of Art. 392 of the Labor Code of the Russian Federation, the employer has the right to apply to the court with a claim for compensation for damage caused by the employee within 1 year from the date of discovery of the damage caused. Despite the wording used by the legislator in this article of the Labor Code of the Russian Federation, it, in fact, is not about a preemptive period, after which the very right of the employer “dies” in relation to the debtor-employee, but about the limitation period, i.e. . the period that can be restored by the court considering the case, which was directly indicated both in the Decree of the Plenum Supreme Court of December 22, 1992 “On some issues of application by the courts of the Russian Federation of legislation in resolving labor disputes” (paragraph 8), and in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (p. 5) Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (as amended on December 28, 2006) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation. - 2004. - No. 6. .

It seems that the question of the timeliness of the plaintiff's application for judicial protection in these and similar situations could be resolved in practice by pointing out in the Resolution of the Plenum the possibility of the courts applying, by analogy with the provisions of Ch. 12 of the Civil Code of the Russian Federation "Limitation period" and using the provisions of this chapter to the relevant situations.

It was expedient to do this, not only because the majority of labor cases, including cases to which the Plenum of the Supreme Court of the Russian Federation, held on November 2, 2006, was devoted. Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. liability of employees for damage caused to the employer " // Bulletin of the Supreme Court of the Russian Federation. - 2007. - No. 1., are considered by justices of the peace, who for the most part have little experience in judicial work, but also due to the fact that in the practice of higher courts also there are erroneous judgments when resolving the issue of the possibility of restoring the missed deadline for going to court when appealing against the orders of the employer to dismiss the employee. Sometimes the specified period is considered by judges as a procedural period and therefore the issue of its restoration is erroneously proposed to be resolved using Art. 112 Code of Civil Procedure of the Russian Federation. Meanwhile, in this case, we are dealing with a period defined in the norm of substantive law (part 2 of article 392 of the Labor Code of the Russian Federation). Missing the specified period cannot prevent the application for judicial protection (submission by the plaintiff and acceptance by the judge statement of claim), but may serve as grounds for dismissal of a claim with a court decision.

The Code of Civil Procedure of the Russian Federation (part 3, article 11) allows the use of analogy in resolving civil cases in the broad sense of the word, therefore, analogy is also acceptable when considering labor disputes.

The application of the Civil Code of the Russian Federation, by analogy to other branches of law, can only be prohibited by the Civil Code itself, but the Civil Code of the Russian Federation does not contain such a prohibition. There is no such prohibition in the Labor Code of the Russian Federation.

At the same time, a number of scientists V. Ershov spoke out against fixing in the Decree of the Plenum on the possibility of using certain norms and institutions of civil law in resolving labor disputes. .

At the same time, labor law develops according to its own laws, but if a specific issue of labor law, in the regulation of which there is a gap, cannot be resolved by its own means, law enforcers are forced to turn to civil law norms in the order of intersectoral analogy. In particular, law enforcers have many questions in practice regarding the timing of applying to the employer and to the court for certain categories of labor disputes. These deadlines are not always established by the Labor Code of the Russian Federation, and law enforcers are forced to refer to the relevant norms of the Civil Code of the Russian Federation and other federal laws.

Since the Decree of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” did not contain provisions on the possibility of applying civil law norms by analogy in resolving labor disputes, it should be supported (as possible way overcoming the gap in labor legislation) E.A. Ershova and include in the section " General provisions» of the Labor Code of the Russian Federation, an article in which it is necessary to provide for the grounds and limits for the application of civil legislation to relations in the sphere of labor in the manner of an intersectoral analogy Zakharov V.N. The use of analogy in resolving labor disputes // Russian Justice. - 2008. - No. 3. - P. 31. . This article could be formulated as follows: "Civil legislation applies to relations in the sphere of labor in cases expressly provided for by labor legislation, and also when these relations are not regulated by labor legislation or by agreement of the parties and when this does not contradict their essence."

In the Russian Federation, as a legal state, laws on taxes and fees should contain clear and understandable norms Determination of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 441-O “On the refusal to accept for consideration the complaint of the Niva-7 limited liability company for violation of constitutional rights and freedoms, paragraph 2 of Article 20, paragraphs 2 and 3 of Article 40 of the Tax Code of the Russian Federation” // Bulletin of the Constitutional Court of the Russian Federation. - 2004. - No. 3 .. According to paragraph 6 of Art. 3 of the Tax Code of the Russian Federation, "legislative acts on taxes and fees must be formulated in such a way that everyone knows exactly what taxes (fees), when and in what order he must pay" Tax Code of the Russian Federation (part one) dated 31.07.1998 No. 146-FZ (as amended on July 19, 2009) // SZ RF.- 1998.- No. 31.- Art. 3824. . Thus, the legislator established one of the principles of tax law - the principle of certainty of tax norms, the violation of which will mean that tax relations cannot be considered properly regulated, as a result of which a gap may arise in the legal regulation of tax relations. The application of the law by analogy is a way of filling such gaps.

The legislation on taxes and fees does not contain such a thing as an analogy of the law, in contrast to civil legislation. This state of affairs is due to the fact that tax law is a public law branch, therefore, imperative principles constitute the essence of the legal regulation of tax relations.

“The legislation on taxes and fees governs power relations in the establishment, introduction and collection of taxes and fees in the Russian Federation ...” - Art. 2 of the Tax Code of the Russian Federation. Power relations in the tax sphere provide for the presence of a subordinate entity - the taxpayer (payer of the fee). Subordination means lack of equality in tax relations. The analogy of the law is an institution of civil law (Article 6 of the Civil Code of the Russian Federation), therefore, at first glance, there are no legal grounds for its use in resolving tax disputes.

Tax legislation does not allow the application of the norms of the law by analogy Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 1999 No. 41 “Overview of the practice of application by arbitration courts of legislation governing the taxation of banks” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1999. - No. 7 .. Currently the position of the Supreme Arbitration Court of the Russian Federation has changed, which allows using the analogy of the law in resolving tax disputes. However, appealing to the institution of analogy of the law does not always meet the interests of the taxpayer.

On the issue of applying the analogy of the law in tax relations, there is no uniform judicial and arbitration practice. At the same time, the arbitrators generally agree that the analogy of the law is admissible in the process of resolving tax disputes.

For example, the arbitration court considered it possible to apply, by analogy, Art. 78 of the Tax Code of the Russian Federation for the return of a fine, since before January 1, 2007 this procedure was not regulated by the norms of the Tax Code of the Russian Federation Northwestern District dated 01/19/2006 in case No. A56-6911 / 2005 // Consultant Plus: Judicial practice. In this case, the appeal to the analogy was in the interests of the taxpayer. But there is also a diametrically opposite position: the use of analogy in tax relations is unacceptable by virtue of paragraphs 1, 5 of Art. 1, Art. 6, 11 of the Tax Code of the Russian Federation Resolution of the Federal Antimonopoly Service of the Urals District of April 17, 2002 in case No. F09-735 / 02-AK // Consultant Plus: Judicial practice.

The legal justification for applying the analogy of the law when considering tax disputes in an arbitration court is Part 6 of Art. 13 Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95-FZ (as amended on June 28, 2009) // SZ RF.- 2002.- No. 30.- Art. 3012.: in cases where disputed relations are not directly settled federal law and other normative legal acts or by agreement of the parties and there is no business custom applicable to them, to such relations, if this does not contradict their essence, arbitration courts apply the rules of law governing similar relations (an analogy of the law), and in the absence of such rules, they consider cases on the basis of from the general principles and meaning of federal laws and other regulatory legal acts (analogy of law).

higher powers, give me hope and resources to repeat the past. the law cannot take into account all aspects of life.

here are the rules:
Article 55. Evidence

1. Evidence in a case is information about 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 the explanations of the parties and third parties, the testimony of witnesses, written and material evidence, audio and video recordings, expert opinions.
from the Code of Civil Procedure of the Russian Federation. (Sorry for the abbreviations, I don’t like it myself. Just for speed. Yes, and the site of professionals, they know the abbreviations).

Article 71. Written evidence

1. Written evidence is containing information about the circumstances relevant to 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 received by facsimile, electronic or other communication or in any other way allowing to establish the authenticity of the document. WRITTEN EVIDENCE INCLUDES SENTENCES AND DECISIONS OF THE COURT, OTHER JUDICIAL DECISIONS, protocols of procedural actions, protocols of court sessions, annexes to protocols 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. so ANY JUDICIAL ACTS AND DECISIONS.

about this principle of freedom and dispositivity they say:
Article 2. Tasks of civil legal proceedings

The objectives 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 relations. Civil legal 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 apply to the court

1. An 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 demand to award compensation to him for violation of the right to legal proceedings within a reasonable time or the right to enforcement judgment within a reasonable time.

Article 11

1. The court is obliged to resolve civil cases on the basis of the CONSTITUTION OF THE RUSSIAN FEDERATION international treaties Russian Federation, federal constitutional laws, federal laws, regulatory legal acts of the President of the Russian Federation, regulatory legal acts of the Government of the Russian Federation, regulatory legal acts of federal bodies state power, constitutions (charters), laws, other regulatory legal acts of public authorities of the constituent entities of the Russian Federation, regulatory legal acts of local governments. The court resolves civil cases, proceeding from the customs of business turnover in cases provided for by regulatory legal acts.
2. The court, having established, when resolving a civil case, that a normative legal act does not comply with a normative legal act that has greater legal force, it applies the norms of the act that has the greatest legal force.
3. If there are no rules of law governing the disputed relationship, the COURT APPLIES THE RULES OF LAW GOVERNING SIMILAR RELATIONS (ANALOGY OF THE LAW) (note by the participant - and, therefore, the interpretation of the rules of law given by other courts), and in the absence of such rules

According to part 4 of Art. 1 Code of Civil Procedure of the Russian Federation in the absence of a procedural law governing relations that arose in the course of civil proceedings, the courts apply the rule governing similar relations (an analogy of the law), and in its absence, they act on the basis of the principles of the administration of justice (an analogy of law). Thus, in civil process the legislator positively resolved the issue of the admissibility of the analogy of procedural norms.

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

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

This position is sometimes accepted by the jurisprudence.

Thus, in the decision of the Federal Antimonopoly Service of the East Siberian District dated December 15, 2008 in case No. A33-6172 / 08, considering the prosecutor’s complaint against the judicial act, by which court costs were collected from the prosecutor’s office in favor of the defendant, the court formulated the following position:

“The prosecutor’s reference in substantiating the application in the present case of the analogy of the law to the provisions of Part 2 of Article 45 of the Civil Procedure Code of the Russian Federation cannot be accepted by the court of cassation, since the provisions of Article 3 of the Arbitration Procedure Code of the Russian Federation, which determine the procedure for judicial proceedings in arbitration courts, the application of the analogy there is no procedural law."

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

An example of the application of the norms of the APC of the Russian Federation by analogy was given by the Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 1 of the Information Letter dated December 22, 2005 No. 96 “Overview of the practice of consideration by arbitration courts of cases on the recognition and enforcement of decisions of foreign courts, on challenging decisions of arbitration courts and on the issuance of writ of execution to enforce the decisions of arbitration courts”.

As an answer to the question of what the arbitration court should do if the applicant did not attach the necessary documents (in particular, an enforcement document) to the application for recognition and enforcement of a foreign court decision, the following recommendation was formulated:

“Part 3 of Article 242 of the Arbitration Procedure Code of the Russian Federation establishes a list of documents attached to an application for recognition and enforcement of a foreign court decision. Clause 2 of part 3 of this article determines the need to submit a document confirming the entry into force of a foreign court decision, if this is not indicated in the text of the decision itself.

The consequences of violation of these requirements in Chapter 31 of the Arbitration Procedure Code of the Russian Federation are not provided.

In accordance with Part 6 of Article 13 of the Arbitration Procedure Code of the Russian Federation, in cases where disputed relations are not directly regulated by federal law and other regulatory legal acts or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, arbitration courts apply the rules of law governing similar relations (an analogy of the law).

Consequently, the question of the procedural consequences of failure to submit required documents subject to resolution by analogy on the basis of the provisions of the Arbitration Procedure Code of the Russian Federation on proceedings in the arbitration court of first instance.

In accordance with Parts 1, 2, 4 of Article 128 of the Arbitration Procedure Code of the Russian Federation, the arbitration court, having established, when considering the issue of accepting a statement of claim for proceedings, that it was filed in violation of the requirements of Articles 125 and 126 of the Code, issues a ruling on leaving the statement without movement.

In favor of the admissibility of the analogy of procedural rules in the arbitration process, one can also argue that the application of procedural rules by analogy is necessary to eliminate gaps in legal regulation. If we deny the admissibility of such an analogy, then a situation may arise when the court does not have the tools to eliminate the gap in the law.

The Constitutional Court of the Russian Federation in its Determination of March 16, 2006 No. 76-O indicated that:

“The application of the analogy of the law is due to the need to fill in the gaps in the legal regulation of certain relations. Anchoring such a right in the fourth part of Article 1 of the Code of Civil Procedure of the Russian Federation follows from the principle of independence of the judiciary and is one of the manifestations of the discretionary powers of the court necessary for the administration of justice, since the impossibility of applying the rules of law by analogy in the presence of unsettled relations would lead to the impossibility of protecting the rights of citizens and, ultimately as a result, to the restriction of their constitutional rights. When applying this kind of analogy, the court does not replace the legislator and does not create new legal norms, acting within the framework of the law.

This position is formulated in relation to the civil process. However, based on the desire to bring the civil and arbitration process closer together (which takes place and), it would be logical to extend such a position to the arbitration process.

Colleagues! In your opinion, is it permissible to apply procedural rules by analogy in the arbitration process? Why?

Have you encountered the application of the analogy of procedural rules in the arbitration process? In what situations?

Paragraph 4 of Art. 1 Code of Civil Procedure of the Russian Federation establishes that in the absence of a rule of procedural law governing relations that arose in the course of civil proceedings, federal courts of general jurisdiction and justices of the peace (hereinafter also referred to as the court) apply the rule governing similar relations (an analogy of the law), and in the absence of such a rule, they act on the basis of the principles of implementation justice in the Russian Federation (analogy of law).

This paragraph establishes the principle of analogy in civil proceedings provided for by the Code of Civil Procedure of the RSFSR. Like the Civil Code of the Russian Federation (Article 6), the Investigative Committee of the Russian Federation (Article 5), the Code of Civil Procedure of the Russian Federation provides for an analogy of law and an analogy of law.

Law analogy- application to a legal relationship not regulated by a specific norm of the norm of the law, which regulates similar relations. The need to apply this technique is due to the fact that the decision in any case must necessarily have a legal basis. Therefore, in the absence of a rule that directly provides for a disputed case, it is required to find a rule that regulates relations as close as possible to the disputed one.

Law analogy- application to a controversial relationship that is not regulated by a specific norm and to which it is impossible to extend the action of the norm regulating such relations, the general principles and meaning (that is, the principles) of the legislation.

The principles of the administration of justice in the Russian Federation, which are applied in the analogy of law, are disclosed in the Constitution of the Russian Federation, the Law on the Judicial System and the Code of Civil Procedure of the Russian Federation (for example, Articles 5-10).

The possibility of applying the principle of analogy in civil proceedings has been repeatedly disputed. However, due to the fact that civil procedural law is increasingly acquiring features of optionality, and due to the impossibility of resolving all categories of cases that arise in courts, the principle of analogy in civil procedural law is of great practical importance.

So, rules on leaving a claim without movement (Article 136 of the Code of Civil Procedure of the Russian Federation) can be applied by analogy to an application for a court order (Article 123 of the Code of Civil Procedure of the Russian Federation). As example of application of analogy of law can serve application of Part 1 of Art. 101 Code of Civil Procedure of the Russian Federation to the right of the defendant to reimbursement of expenses for the services of a representative in the event of leaving without consideration of the statement of claim on the basis of par. 8 art. 222 Code of Civil Procedure of the Russian Federation.

In accordance with par. 8 art. 222 Code of Civil Procedure of the Russian Federation the court leaves the application without consideration if the plaintiff, who did not ask for the case to be heard in his absence, did not appear in court on a second summons, and the defendant does not demand that the case be heard on the merits. legal norm regulating the issue reimbursement to the defendant of the costs of paying for services representative in case of leaving the statement of claim without consideration in accordance with par. 8 art. 222 Code of Civil Procedure of the Russian Federation is not included in this Code. In this regard, if the statement of claim is left without consideration on the basis of par. 8 art. 222 Code of Civil Procedure of the Russian Federation should be guided by Part 4 of Art. 1 and part 1 of Art. 101 Code of Civil Procedure of the Russian Federation . According to Part 1 of Art. 101 of the Code of Civil Procedure of the Russian Federation, if the plaintiff refuses the claim, the plaintiff shall reimburse the defendant for the costs incurred by him in connection with the conduct of the case.

When applying the analogy of law it is necessary to clearly know the principles of this branch of law so that the actions performed by the courts and persons participating in the case helped implement these principles. Especially it is necessary to point out Art. 10 of the Civil Code of the Russian Federation, which requires compliance with the reasonableness and conscientiousness of the actions of the participants civil relations. For the court, this is a presumption that must be followed when considering and resolving civil cases.

The principles of analogy of law and analogy of law are applied in private law relations, namely in civil and family law. So, according to paragraph 1 of Art. 6 of the Civil Code of the Russian Federation in cases where the provisions of paragraphs 1 and 2 of Art. 2 of the Civil Code of the Russian Federation, relations are not directly regulated by law or by agreement of the parties and there is no business custom applicable to them, such relations, if this does not contradict their essence, are subject to civil law governing similar relations (an analogy of the law). If it is impossible to use the analogy of the law, the rights and obligations of the parties are determined on the basis of the general principles and meaning of civil law (the analogy of law) and the requirements of good faith, reasonableness and justice. A similar rule is provided for in Art. 5 SK RF.