Civil law. A common part. Civil legislation and sources of civil law. Analogy of law, analogy of law (most important)

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Civil law. A common part. Civil legislation and sources of civil law. Analogy of law, analogy of law (most important)

Lecture notes, cheat sheets

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2. CIVIL LEGISLATION AND SOURCES OF CIVIL LAW. ANALOGY OF LAW, ANALOGY OF LAW

civil law (Section "o" Art. 71

Constitution) - is under the jurisdiction of the Russian Federation, it includes normative legal acts adopted by the Federal Assembly of the Russian Federation (federal constitutional laws, federal laws), and therefore the authorities and administrations of the constituent entities of the Russian Federation, as well as municipalities are not entitled to issue acts containing civil law norms .

The category "sources of civil law" is wider than the category "civil legislation". To sources of civil law relate:

1) the Constitution of the Russian Federation of 1993. It establishes the main provisions, including civil law (Articles 8, 35,36 establish the civil law regulation of property, Articles 20-25 are devoted to personal non-property relations);

2) federal constitutional laws;

3) Civil Code of the Russian Federation. It regulates property and related personal non-property relations and is the basis for future lawmaking in this area;

4) federal laws (FZ "On joint-stock companies", FZ "On insolvency (bankruptcy)");

5) decrees and orders of the President of the Russian Federation. They should not contradict the Civil Code and laws;

6) resolutions and orders of the Government of the Russian Federation. Should not contradict the Civil Code, laws and decrees of the President. Contradictory acts are not applied (clause 5, article 3 of the Civil Code of the Russian Federation);

7) acts of ministries, departments and other federal executive authorities. These bodies can issue acts containing norms of civil law in cases and within the limits provided for by the Civil Code, other laws and other legal acts (clause 7 of Article 3 of the Civil Code of the Russian Federation). Thus, the scope of their rule-making activities is limited;

8) acts of the former USSR (if they are not repealed and do not contradict the legislation of the Russian Federation).

Auxiliary sources of civil law are business practices and resolutions of the plenum of the Supreme Court of the Russian Federation on various cases, although there are disputes regarding the latter in science.

business practices - rules of conduct that have developed and are widely used in a certain area of business, and do not contradict the general principles of civil law. They may not be enshrined in law. The order of relations between individual entrepreneurs, which is expedient, but does not meet the general rules of custom, cannot be considered custom.

Such business practices that are contrary to the provisions of the law or the contract binding on the participants in the relevant relationship shall not be applied.

To address gaps in civil law, analogy of law and analogy of law. Law analogy - application to an unsettled relationship of the norm governing a similar relationship (clause 1, article 6 of the Civil Code).

Analogy of law - filling in the gaps in the legislation on the basis of the general principles and meaning of civil legislation, the requirements of good faith, reasonableness and justice (clause 2, article 6 of the Civil Code).

These institutions are applied in the presence of the conditions established by the Civil Code: the unsettledness of the relevant relations by legislation or by agreement of the parties, the absence of a business practice, the existence of similar legislation, as well as its consistency with the essence of the relevant relations.

Author: Stepanova O.N.

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