Логика. Роль аналогии в правовом процессе (самое важное)

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Логика. Роль аналогии в правовом процессе (самое важное)

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66. THE ROLE OF ANALOGY IN THE LEGAL PROCESS

Analogy in legal assessment. In some legal systems, legal assessment is allowed by analogy of the law or by precedent.

Based on the practical difficulty of foreseeing and listing in the law all specific types of legal relations that may arise in the future, the legislator grants the court the right to evaluate cases not provided for by law according to the rules that govern similar legal relations. This is the essence of the legal institution of analogy of law.

In the Russian legal system, the analogy of the criminal law is not provided. It operates only in civil law, which is explained by the practical difficulty of foreseeing in the system of law all new types of civil law relations that may arise in the future.

According to theory and legal practice, the assessment of civil legal relations by analogy with the law is allowed only if certain conditions are met:

1) there is a requirement that there is no norm in the legal system that would directly provide for this type of relationship;

2) a rule of law applied by analogy must provide for relations that are similar in their essential features and the differences are insignificant.

Legal assessment proceeds in the form of inference by analogy and in the case of a precedent in legal proceedings, when the court, in its conclusions about the grounds and limits of legal liability in a particular case, relies on a decision previously made by the court in a similar case.

Such assimilation cannot claim to be demonstrative. Every offense, especially

in the field of criminal law, it is a strictly defined set of objective and subjective circumstances that requires a specific assessment and a strictly individual approach to choosing a punishment. The reference to judicial precedent often levels out the differences and thus does not ensure legal justice. That is why the appeal to judicial precedent, which is practiced, for example, in the Anglo-American legal system, has never been recognized in theory and practice as a sufficiently reliable source of law. In Russian history, judicial law has never attached importance to precedent as a source of law.

Analogy in the investigation process. When analyzing factual material, the judge and investigator turn to individual experience - their own and others. Comparing a specific case with previously studied individual cases helps to clarify the similarities between them and, on this basis, by likening one event to another, to discover previously unknown signs and circumstances of the crime.

In its most distinct form, inference by analogy is found in the disclosure of crimes by the way they were committed.

The probable nature of the knowledge obtained with the help of analogy predetermines the unequal role of this conclusion at various stages of forensic research. So, in the process of preliminary investigation and judicial investigation, the appeal to analogy is quite legitimate, here it performs a heuristic function - it serves as an incentive for reflection, acts as a logical basis for building versions.

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