§ 4. Acts of application of law An act of application of law is a legal act of a competent body or official, issued on the basis of legal facts and rules of law, defining the rights, obligations or extent of legal liability of specific persons.

Selected problems of application of financial law

§ 11.3. Stages of the process of applying the law The application of the law is not a simple unambiguous action. It is a complex process consisting of a number of logically sequential stages. Investigation of the factual circumstances of the case (material

As an activity, organizationally formalized, the application of law falls into a number of stages, logically interconnected and successively developing stages. In the legal literature, the stages of application of law are defined “as relatively isolated groups of law enforcement actions (operations), expressing the unfolding of the content of law enforcement activities.” The question of the stages of law enforcement activity is one of the key problems in the theory of law enforcement, since they are the most important spatiotemporal, dynamic characteristics of this activity.

These stages are usually called stages of logical sequence. They represent a relatively closed, logical system of mental operations that flows over time, aimed at resolving the current legal situation.

The stages of logical sequence are characteristic of any law enforcement activity, regardless of any organizational and legal features of the case being resolved. Identification of these stages allows us to develop a general theoretical model of law enforcement, which is generally recognized to include three main stages:

• 1) establishing the factual circumstances of the case;
• 2) selection and analysis of the rule of law;
• 3) making a decision and documenting it.

The law enforcement process should be considered in the form of a specific legal procedure that meets the requirements, a system of interrelated law enforcement actions and operations that make up certain procedurally necessary steps or stages of law enforcement proceedings for certain categories of legal cases. At the same time, the law enforcement officer does not simply record for himself certain stages of activity, stages of achieving a goal, but carries out his practical work in accordance with the stages of consideration and resolution of a given legal case pre-established by procedural law. These stages are usually referred to as functional stages. These stages are characterized by: 1) the presence of their own goals and objectives; 2) a special circle of participants and the specificity of their legal status; 3) objective dynamism in the process; 4) the specificity of the nature of the actions performed and the legal consequences generated by them; 5) a special range of motivating circumstances (legal facts); 6) features of obtaining substantive results and their procedural consolidation.

The process of applying the law begins with a study of the factual circumstances of the case to be resolved through law enforcement. The subject of this stage is formed by various life circumstances: actions (inactions), events, state. But this in no way means that at this stage purely factual and not legal activity takes place. On the contrary, the factual and legal content in the study of the circumstances of the case are intertwined and are in inextricable unity. The development of knowledge of a law enforcement officer is a kind of cyclical process: from the facts of life to the rules of law and from the law again to actual circumstances.

Among the main issues that need to be clarified and resolved at this stage are the following:

• firstly, the very possibility of attributing the social relations under consideration to the socio-legal environment is established. The subject of legal regulation does not remain unchanged, since the development of social life makes constant adjustments to the question of the actual belonging of the relevant phenomena to the legal sphere. That is why the law enforcer must answer the question of whether the case to be resolved is generally within the legal framework, whether it can be resolved, at least on the basis of the general meaning of the legislation and the principles of law. A negative answer to this question excludes the possibility of law enforcement, since it is not possible to talk about any implementation of the right beyond its boundaries;
• secondly, the legal significance of the circumstances under study and their specific place in the subject of regulation of the relevant branch of law are determined;
• thirdly, the personal aspect of the social relationship to be regulated is established. In this regard, data is collected on the identity of the subjects to whom the legal norm applies;
• fourthly, work is being done to collect, analyze and procedurally consolidate evidence that determines the legal basis of the case under consideration;
• fifthly, the evidence collected in the case must be subjected to legal assessment for its relevance, admissibility, sufficiency (completeness).

It should be noted that all of the above issues are resolved interconnectedly in a complex and, in turn, consist of many private situations dictated by the circumstances of the case and the requirements of the procedural form.

The end result of all the work of the law enforcement officer at this stage is the reconstruction of all the circumstances of the case that have legal significance; only then can we say that the truth in the case has actually been established, and the final decision in the case meets the requirements of validity.

The selection and analysis of the rule of law to be applied constitutes the second stage of the law enforcement process. The search for the necessary regulatory material is carried out by the law enforcement officer simultaneously with the study of the actual circumstances of the case as the process of legal qualification develops.

At this stage, the law enforcement officer solves the following tasks:

• Firstly, the choice of the legal norm to be applied is made. In this case, the law enforcer must choose not only the norm of substantive law, which will form the basis for the decision in the case, but also the norms of procedural law, which determine and regulate the procedure for applying the corresponding norm of a substantive nature;
• secondly, an analysis of the selected legal norms is carried out, which consists of checking their authenticity and legal significance, as well as checking the correctness of the text of the relevant regulations;
• thirdly, the interpretation of the selected legal norms is carried out. Unlike the analysis of a legal norm, during which mainly the external form and attributes of the norm are examined, interpretation is associated with penetration into the internal meaning of a legal regulation.

All of these actions taken together serve the sole purpose of ensuring correct legal qualifications. qualify (from Latin qualis - quality) means to attribute a certain phenomenon, according to its qualitative characteristics, properties, to any category, type, category. In the field of law, to qualify means to choose the legal norm that provides for a given case.

Analysis of law enforcement practice indicates that the law enforcement officer, to one degree or another, is faced with the need to carry out legal qualifications not only at the stages of final decision-making and selection of a legal norm, when preliminary qualification is carried out, but even during the establishment of the factual circumstances of the case.

The first two stages of the law enforcement process prepare all the necessary conditions for the central moment of law enforcement - making a final decision on the case and its documentation. The decision in the case is a kind of social and legal result of all the previous intellectual work of the law enforcement officer to study the factual circumstances of the case, collect and analyze evidence and their legal qualifications. In the vast majority of cases, making a law enforcement decision involves documenting it. Certain phenomena of oral law enforcement activity (an order or instruction from a manager to subordinates to carry out any actions) are not typical for the law enforcement process as a whole.

The stage of decision making and its documentation has several aspects of cognition:

• firstly, as a normative and qualification problem, consisting in the final assessment of the evidence collected in the case, in establishing on their basis the actual picture of what happened, in the final legal qualification of acts, events, conditions;
• secondly, as a state-imperious, managerial activity, the result of which is an individual-imperious order expressing the will of the state in solving the problem that has arisen. The main purpose of a law enforcement act is that it is a legal means of influencing public relations, the implementation of which is ensured, among other things, by the possibility of state coercion;
• thirdly, as an intellectual-volitional problem of law enforcement creativity, the qualitative result of which is determined by factors of a very different nature. But among them, the most important are, first of all, subjective factors that determine the individual appearance of a law enforcement officer: the level of development of his legal, moral, political, aesthetic culture, his professional, business, volitional, psychological and other qualities;
• fourthly, as a problem of legally correct documentation of the results of law enforcement activities. Its solution presupposes that the law enforcement act must meet certain requirements that apply to both its content and external design.

Of particular interest is the consideration of the substantive aspect of this problem. An analysis of the current legislation allows us to say that the law enforcement act must be correct, first of all, in legal terms, that is, it must meet the requirements of validity and legality.

In turn, the requirements of legality cover the legal aspects of the case and presuppose: 1) compliance by the law enforcement officer with the requirements of jurisdiction (jurisdiction), as well as all procedural and procedural rules governing the procedure for considering and resolving the case; 2) correct legal qualification and application of exactly the norm of substantive law that is in force in this case (or application, if necessary, of the law regulating a similar relationship, or the general principles and meaning of the legislation); 3) making a decision on the case in strict accordance with the requirements of the applicable norm; 4) adoption of a law enforcement act within the period established by law.

The final decision in the case must meet the requirements of expediency and fairness. In the sphere of application of law, justice and expediency are closely related to the concepts of legality and validity, but at the same time they have a certain degree of autonomy, “highlighting” individual sides, the facets of a legally valid decision in a case.

Expediency is one of the criteria of human activity, giving it a conscious character and directing its development in accordance with the goals set. In science, the concept of “expediency” is considered as the correspondence of a phenomenon or process to a certain state, the material or ideal model of which acts as a goal. Expediency characterizes the pragmatic aspect of law enforcement, allows you to adjust and coordinate the process of achieving the goals of human activity with legal forms and methods of satisfying them. Therefore, only such a law enforcement decision should be considered appropriate, which corresponds to both the goals of social development and the goals of legal regulation, and takes into account the factual and legal circumstances of the case as much as possible.

Justice is not only a moral, ethical, social, but also a legal category, which forms the moral basis of legitimate law enforcement activities. It is no coincidence that in a number of branches of law, where the greatest social sensitivity is required from legal norms, the principle of justice has received legislative recognition, for example, in family and criminal law. So, according to the provisions of Art. 6 of the Criminal Code of the Russian Federation, the implementation of the principle of justice in criminal law presupposes that punishment and other measures of a criminal legal nature applied to a person who has committed a crime must correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. In addition, no one can be criminally liable twice for the same crime.

Compliance of the final decision in a legal case with the requirements of expediency and fairness (along with the requirements of legality and validity) allows us to speak about the effectiveness of the state-authoritative implementation of the law in relation to a specific case. These criteria guide law enforcement subjects to find and make the most optimal decision, most appropriate to the circumstances of the case, suitable for a given specific case. But at the same time, the law enforcement officer must proceed from the fact that legal justice and expediency never go beyond the limits of legality and are always within the framework of the law.

From the point of view of internal content, the law enforcement act must comply with language norms, that is, it must be stated in a clear, clear language that is understandable to the performers. In a law enforcement act, it is unacceptable to use imprecise wording, use of unacceptable abbreviations and words that are unacceptable in official documents, as well as cluttering the decision with a description of circumstances not related to the case under consideration. Technical and other technical terms used in the text, as well as expressions from the local dialect, must be explained.

The implementation of law in most cases occurs without the participation of the state and its bodies. Citizens and organizations voluntarily, without coercion, by mutual agreement, enter into legal relations, within the framework of which they use subjective rights, perform duties and comply with the prohibitions established by law. At the same time, in some typical situations, the need for government intervention arises, without which the implementation of rights turns out to be impossible.

First of all, the participation of the state is pre-programmed in the mechanism for implementing certain norms. These are, first of all, the norms in which the state distribution of property benefits is carried out. For example, the exercise of the right to a pension includes as a necessary element a resolution of the body’s commission social security on the assignment of a pension to an individual citizen. The allocation of housing from the municipal or state housing stock requires an individual government decision from the relevant state body or local government. In the same order, i.e. By making individual government decisions, citizens and organizations are allocated land plots owned by the state.

Secondly, the relationships between government bodies and officials within the state apparatus are mostly of the nature of power and subordination. These legal relations include as a necessary element power decisions, i.e. acts of application of law (for example, a decree of the President of Russia on the removal of a minister from office).

Thirdly, the law is applied in cases where a dispute about the law arises. If the parties themselves cannot come to an agreement on mutual rights and obligations, they turn to the competent government body to resolve the conflict (for example, commercial disputes between organizations are considered by arbitration courts)

Fourthly, the application of law is extremely important for determining the extent of legal responsibility for the offense committed, as well as for the application of compulsory measures of an educational, medical nature, etc.

Based on all of the above, we come to the conclusion that the application of law is the power activity of competent authorities and persons to prepare and make an individual decision on a legal case on the basis of legal facts and specific legal norms.

The application of law has the following characteristics:

1) carried out by bodies or officials vested with the functions of state power;

2) has an individual character;

3) aimed at establishing specific legal consequences - subjective rights, duties, responsibilities:

4) implemented in specially provided procedural forms:

5) ends with the issuance of an individual legal decision.

Stages of application of law

The application of legal norms is a complex process that includes several stages. The first stage is the establishment of the factual circumstances of the legal case, the second is the selection and analysis of the legal norm to be applied, the third is the adoption of a decision on the legal case and its documentation. The first two stages will be preparatory, the third will be the final, main stage. At the third stage, an authoritative decision is made - the act of applying the law.

1. Circle actual circumstances, with the establishment of which the application of law begins, is very broad. When committing a crime - the person who committed the crime, the time, place, method of commission, the harmful consequences that occurred, the nature of the guilt (intention, negligence) and other circumstances; in the event of a civil dispute - the circumstances of the conclusion of the transaction, its content, actions taken to execute it, mutual claims of the parties, etc. Factual circumstances are traditionally related to the past and therefore the law enforcement officer cannot observe them directly. It is worth noting that they are confirmed by evidence - tangible and intangible traces of the past, recorded in documents (testimonies of witnesses, expert opinions, reports of inspection of the scene, etc.). These documents constitute the main content of the legal case materials and reflect a legally significant factual situation.

Collection of evidence can be a complex legal activity (for example, a preliminary investigation in a criminal case), or it can also lead to the submission of the necessary documents by the interested party. For example, a citizen who has the right to a pension is obliged to submit documents confirming his right to the pension commission: about age, length of service, salary, etc.

The evidence with the help of which the factual circumstances of the case are established will be subject to procedural requirements of relevance, admissibility and completeness.

Relevance requirement means accepting and analyzing only those evidence that is relevant to the case, i.e. contribute to the establishment of precisely those factual circumstances with which the applied rule of law connects the onset of legal consequences (rights, obligations, legal liability) For example, in ϲᴏᴏᴛʙᴇᴛϲᴛʙi with Art. 56 of the Arbitration Procedural Code of the Russian Federation, the arbitration court accepts only that evidence that is relevant to the case under consideration.

Admissibility requirement states that exclusively the means of proof determined by procedural laws must be used. For example, factual data reported by a witness cannot serve as evidence if he cannot indicate the source of his knowledge (Article 74 of the Criminal Procedure Code); to establish the causes of death and the nature of bodily injuries, an examination is required (clause 1 of Article 79 of the Criminal Procedure Code )

Completeness requirement fixes the need to establish all the circumstances relevant to the case. Their incomplete clarification will be the basis for canceling or changing the court decision (clause 1 of Article 306 of the Code of Civil Procedure) or the sentence (clause 1 of Article 342, 343 of the Code of Criminal Procedure)

2. Essence legal assessment of factual circumstances, i.e. their legal qualifications, is to find and choose exactly the norm that, according to the legislator's intention, should regulate the actual situation under consideration. This search occurs by comparing the actual circumstances of real life and the legal facts provided for by the hypothesis of the applicable legal norm, and establishing an identity between them. This means that for the correct legal qualification of the facts established at the first stage, one should choose (find) a norm(s) directly designed for these facts. What are the difficulties here?

The main difficulty essentially lies in the fact that the norm whose hypothesis covers the actual situation is not always subject to application. It is worth saying that in order to eliminate doubts, it is extremely important to analyze the chosen norm, to establish the effect of the law containing this norm in time, in space and among a circle of persons. For example, when determining the operation of a law in time, the following rules must be observed:

“The law establishing or aggravating liability does not have retroactive force” (Part 1 of Article 54 of the Constitution of the Russian Federation);

“Laws establishing new taxes or worsening the situation of taxpayers do not have retroactive effect” (Article 57 of the Constitution of the Russian Federation);

“The effect of the law extends to relations that arose before its entry into force only in cases where it is directly provided for by law” (Part 1 of Article 4 of the Civil Code of the Russian Federation), etc.

Legal qualifications facilitate the work of the law enforcement officer in understanding the range of facts to be established. Not any facts are clarified, but only those that are provided for in the hypothesis of the chosen norm. A typical mistake in this situation is when they begin to “tailor” facts to the hypothesis of the chosen norm. In legal practice, clarification of additional circumstances often leads to a change in legal qualifications.

Analysis and interpretation of the chosen rule of law involves reference to the official text of the current normative act, familiarization with possible additions and changes to its original version, as well as with official explanations of the meaning and content of the applied norm. Analysis of the law is also necessary to make the right legal decision, which must meet the requirements of the disposition (sanction) of the applied norm.

Making a decision in a case must be considered from two aspects.

First of all, ϶ᴛᴏ mental activity, which consists in assessing the collected evidence and establishing on its basis the actual picture of what happened, in the final legal qualification and in determining the legal consequences for the parties or the perpetrator - the rights and obligations of the parties, the extent of responsibility of the perpetrator.

Secondly, the decision in the case is a document - act of application of law, in which the result of mental activity to resolve a legal case is consolidated, the legal consequences for specific individuals are officially recorded.

The enforcement decision plays a special role in the mechanism of legal regulation. It was already noted earlier that legal norms and the subjective rights and legal obligations arising on their basis are ensured by the possibility of state coercion, however, the latter is implemented precisely by an individual law enforcement decision, since these decisions can be enforced.

The possibility of forced execution of acts of application of law determines their characteristics and the requirements for validity and legality imposed on them.

Acts of application of law

An act of application of law is a legal act of a competent body or official, issued on the basis of legal facts and rules of law, defining the rights, obligations or extent of legal liability of specific persons. Law enforcement acts have a number of features.

1. It is worth noting that they are issued by competent authorities or officials. As a rule, these are state bodies or their officials. This implies the state-imperious nature of acts of application of law. At the same time, government powers are often exercised by non-governmental organizations. So, in connection with Part 2 of Art. 132 of the Constitution of the Russian Federation, local government bodies may be vested by law with certain state powers. It is quite clear that in order to exercise such powers they must adopt law enforcement acts. Another example: civil law disputes, by agreement of the parties, can be referred to arbitration.

2. Law enforcement acts are strictly individual, i.e. addressed to specific individuals by name. This is how they differ from normative acts that are of a general nature.

3. Acts of application of law are aimed at implementing the requirements of legal norms, since they specify the general requirements of legal norms in relation to certain situations and persons, officially record their subjective rights, obligations or the degree of legal responsibility, i.e. perform the functions of individual regulation.

4. The implementation of law enforcement acts is ensured by state coercion. In this case, the act of applying the law is a document that will be the direct basis for the use of state coercive measures. Thus, bailiffs are responsible for implementing decisions in civil cases. The execution of sentences in criminal cases is carried out by the relevant institutions of the Ministry of Internal Affairs of the Russian Federation.

Acts of application of law are diverse and can be classified on various grounds.

By subjects of adoption they are divided into acts of state authorities, government bodies, control and supervisory bodies, judicial bodies, and local government bodies.

By method of adoption These acts are systematized into those adopted collectively and individually.

By nature of legal impact acts of application are divided into regulatory and protective. Regulatory acts ensure the implementation of the dispositions of regulatory norms and authoritatively confirm or determine the rights and obligations of the parties; protective – implementation of sanctions of protective norms, establishing measures of legal liability.

By importance in the law enforcement process they can be auxiliary (for example, a court ruling on the appointment of an examination) and basic (a court decision in a civil case, a resolution of the commission of the social security department on the assignment of a pension, etc.).

By form acts of application are divided into those that have the form of a separate document (court verdict, decision to select a preventive measure for the accused), the form of a resolution based on other case materials (the prosecutor’s approval of the indictment, a resolution on the transfer of inspection materials to the investigative authorities), and in the simplest cases - an oral form (imposing a fine for traveling without a ticket on public transport)

Acts of application must meet the requirements of validity, legality and expediency.

Requirement of validity refers to the factual side of a legal case, to logical conclusions about evidence that confirm or refute conclusions about the facts. It is precisely this requirement, as practice shows, that is violated most often (erroneous conclusions are made regarding the factual side of the case, for example, an innocent person is convicted)

Requirement of legality covers the legal aspects of the case and includes four points:

1) compliance by the competent body or official considering the case with the requirements of jurisdiction, jurisdiction, etc.;

2) strict adherence to all procedural rules governing the collection of evidence, the review procedure, etc.;

3) correct legal qualification and application of exactly the norm that applies in this case;

4) making a decision on the case in strict accordance with the requirements of the disposition (sanction) of the applicable norm.

Expediency requirement secondary to the requirement of legality. This means the following. The prescription of a disposition (sanction) traditionally allows for a certain freedom of the law enforcer in choosing a solution. But this freedom is limited by the requirement of expediency, which will vary depending on the specifics of the case and is expressed in compliance with the principles of fairness, efficiency, taking into account the financial situation of the parties, individualization of responsibility, etc. For example, when choosing a punishment within the sanction of the criminal law, the court must take into account the severity of the crime, the degree of guilt of the defendant, aggravating and mitigating circumstances. The inappropriateness of the decision on the level of responsibility may be expressed in an overly harsh or too lenient punishment. Such a sentence can be completely changed or canceled by a higher court.

Enforcement acts - documents of a jurisdictional nature have a clear structure and consist of four parts.

The introductory part contains the name of the act (sentence, decision, resolution, etc.), place and date of adoption, name of the body or official who makes the decision on what case.

The descriptive part describes the facts that are the subject of consideration, records when, where, by whom, under what circumstances and in what ways the actions were performed.

The motivational part includes an analysis of evidence confirming the presence or absence of factual circumstances, their legal qualifications and its justification, an indication of the official explanations of the applicable law and procedural norms that guided the law enforcement officer.

The operative part formulates the decision on the case (on the rights and obligations of the parties, on the chosen measure of legal liability, on the establishment of a legal fact, etc.)

Gaps in legislation. Application of law by analogy

In law enforcement practice, situations sometimes arise when a controversial relationship is of a legal nature, falls within the scope of legal regulation, but is not provided for by a specific rule of law. The law enforcement officer discovers a gap in the legislation.

A gap in legislation is the absence of a specific norm necessary to regulate a relationship within the scope of legal regulation.

The range of social relations that make up the scope of legal regulation is established by the legislator in two ways.

First of all, each legal norm regulates a separate type of social relations, the characteristics of which are described in its hypothesis. Based on all of the above, we come to the conclusion that each the norm has its ϲʙᴏth “section” in the general sphere of legal regulation. The totality of such “sections”, if we mean all the norms of any industry without exception, will constitute the general scope of legal regulation of this industry.

Secondly, the range of relations that are recognized as legal is established by the legislator in branches of law through specialized norms. It must be remembered that such norms are intended to establish a range of relations within the scope of legal regulation. Yes, Art. 2 of the Civil Code of the Russian Federation has the title “Relations regulated by civil legislation”. Part 1 of the said article provides that “civil legislation determines the legal status of participants in civil transactions, the grounds for the emergence and procedure for the exercise of property rights and other real rights, exclusive rights to the results of intellectual activity (intellectual property), regulates contractual and other obligations, as well as other property and related personal non-property relations based on equality, autonomy of will and property independence of their participants.” In Art. 2 “Relations regulated by family law” of the Family Code of the Russian Federation states: “Family legislation establishes the conditions and procedure for marriage, termination of marriage and recognition of its invalidity, regulates personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children) ), and in cases and within the limits provided for by family law, between other relatives and other persons, and also determines the forms and procedure for placing children left without parental care into the family.” The range of legal relations in other branches of law is similarly fixed.

At the same time, it is not enough for a law enforcement officer to determine the legal nature of the case under consideration. It is extremely important for him to know what his legal consequences are. He can obtain this information exclusively from specific rules, in the dispositions of which the rights and obligations of the parties are formulated in a general form. If there are no such norms, then there is a gap in the legislation.

Gaps in legislation exist mainly due to two reasons:

Firstly, as a result of the emergence of new social relations, which did not exist at the time the law was adopted and could not be taken into account by the legislator;

Secondly, due to omissions in the development of the law.

In such situations, special techniques can usually be used: analogy of law and analogy of law.

An analogy of a law is the application to a relationship that is not regulated in a specific norm of a rule of law that regulates similar relationships. The need to use this technique essentially lies in the fact that a decision in a legal case must necessarily have legal basis. Therefore, if there is no norm that directly provides for a controversial case, then it is necessary to find a norm that regulates relations similar to the controversial one. The rule of the found norm is used as a legal basis when making a decision in a case.

The use of the analogy of the law in cases where a gap is discovered is provided for by the legislator. So, in Art. 10 of the Civil Procedure Code of the RSFSR states: “In the absence of a law regulating a disputed relationship, the court applies the law regulating similar relationships.” The scope of application of the analogy of the law is quite extensive, since in accordance with Art. 1 of the Code of Civil Procedure of the RSFSR, cases regarding disputes arising from civil, family, labor, administrative and legal relations are considered in civil proceedings. Let's give one example. IN last years Many private firms have appeared in the country providing legal assistance to citizens and legal entities. However, the procedural law does not provide for reimbursement of expenses for these services. Therefore, for example, a plaintiff who incurred costs for legal assistance, although he won the case, could not recover such costs from the defendant. Today in judicial practice, when considering such cases, an analogy of the law is used: the rule of Art. 91 of the Code of Civil Procedure of the RSFSR, which provides for the possibility of recovering the costs of paying for legal assistance from lawyers who are members of a legal consultation, is recognized as the legal basis for reimbursing the costs of paying for assistance provided by law firms.

Let us note that in connection with the revival of private law in Russia and the expansion of civil laws, the scope of application of the analogy of law is significantly narrowing. This is indicated by the definition of analogy in the Civil Code of the Russian Federation: in Part 1 of Art. 6 states that in cases where “relations are not directly regulated by legislation or agreement of the parties and there is no business custom applicable to them, civil legislation governing similar relations (analogy of law) is applied to such relations, unless ϶ᴛᴏ contradicts their essence” . IN civil law Therefore, to apply the analogy of law, the absence of a norm directly regulating the disputed relationship is not enough. It is also necessary that there is no agreement between the parties and no business customs applicable to the disputed case.

The analogy of law is the application to a controversial relationship that is not regulated in a specific norm in the absence of a norm regulating similar relations, general principles and the meaning of legislation.

The general principles and meaning of legislation are nothing more than principles of law (general and sectoral). In the analogy of law, principles perform a direct regulatory function and act as the only legal basis for a law enforcement decision.

The use of an analogy of law is thus justified in the presence of two conditions: when a gap is discovered in the legislation and in the absence of a norm regulating similar relations, which does not make it possible to use an analogy of law.

The new civil legislation has made some changes to the procedure for applying the analogy of law. In Part 2 of Art. 6 of the Civil Code of the Russian Federation states: “If it is impossible to use an analogy of law, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation (analogy of law) and the requirements of good faith, reasonableness and justice.” In other words, the law enforcer, using the analogy of law, is guided not only by sectoral (general principles and meaning of legislation), but also by general legal principles (requirements of good faith, reasonableness and fairness) principles.

Legal process

Process literally translates as “moving forward.” In legal practice, it means the procedure for carrying out the activities of investigative, administrative, judicial bodies; close to it in meaning is the term “procedure” - an officially established procedure for discussing or conducting any case. It is important to know that V.M. made a great contribution to the creation of the doctrine of the legal process as a special system for ensuring the regime of legality. Gorshenev.

We should not forget that the most important features of the legal process are that it is regulated by procedural rules and is aimed at implementing the rules of substantive law. In order to understand what the legal process is, what its place and purpose is in legal practice, it is extremely important to remember that the role of substantive and procedural norms in legal regulation different.

The rules of substantive law determine subjective rights, legal obligations, legal responsibility of citizens and organizations, i.e. constitute the main content of law. The essential features of law, as already noted, will be its provision with the possibility of state coercion and connection with the state. This means that state bodies are actively involved in activities aimed at realizing the right and putting it into practice. Such diverse activities are designated by the term “legal process”. The connection and unity of law and process were noted by K. Marx: “ Substantive law...has ϲʙᴏi necessary, inherent procedural forms... It is important to note that the same spirit must animate the judicial process and the laws, since the process is only law life form, hence the manifestation of his inner life.” Based on all of the above, we come to the conclusion that the process is secondary in relation to substantive law, derived from it, and will be a form of its life. A similar conclusion can be drawn regarding the procedural rules governing procedural proceedings.

K. Marx in their conclusions followed the continental tradition laid down by the school of natural law. The legal process occupies a fundamentally different place in the Anglo-Saxon legal system. Here, judicial procedures were the basis for the development legal system. The judges had to strictly observe all procedural rules when establishing the factual circumstances of the case under consideration, but were not bound by any rules when making a decision on it. Only gradually the desire for unity and consistency of judicial practice led to the formation of case law. Judicial precedent has become the main source of law in England, i.e. substantive law was formed on the basis of the legal process.

Let us note the fact that in modern legal science the legal process has received a broader interpretation and is associated not only with law enforcement, but also with lawmaking. The legislative process is carried out on the basis of the existing regulations and is considered as a type of legal process, since the regulations contain procedural rules governing the procedure for legislative activity. The material was published on http://site

Legal process is a procedure regulated by procedural norms for the activities of competent state bodies, consisting in the preparation, adoption and documentation of legal decisions of a general or individual nature.

In a rule-of-law state or in a state that strives to become a rule-of-law state, all activities of bodies and officials must be organized so that they take place in certain legal forms, i.e. according to pre-established legal rules.

Features of the legal process are as follows.

First of all, ϶ᴛᴏ the power activities of competent authorities and officials;

Secondly, this activity, the implementation of which is regulated by procedural norms;

Thirdly, ϶ᴛᴏ activities aimed at making legal decisions of a general (regulatory acts) or individual (acts of application of law) nature.

The legal process is a complex, time-consuming activity, consisting of procedural stages, which have a strictly defined sequence. In terms of content, it represents a chain of interconnected procedural actions and procedural decisions recorded in the ϲᴏᴏᴛʙᴇᴛϲᴛʙ documents. For example, during the investigation of a criminal case, the investigator carries out such procedural actions as inspection of the crime scene, search, interrogation of a witness, seizure of material evidence, etc., and makes various procedural decisions - decisions to initiate a criminal case, to conduct a search in the apartment suspect, about implicating a person as an accused, etc. In this case, the investigator, when making procedural decisions and performing procedural actions, is guided by the requirements of the criminal procedure law. At the legislative level, the adoption of laws in parliament, the consideration of cases of administrative offenses, the work of commissions for the assignment of pensions, and the activities of all other law-making and law enforcement bodies are also regulated.

By the nature of the decisions made, the legal process can be law-making and law-enforcement.

Result lawmaking process - normative legal acts. The procedures for the adoption of regulations and the degree to which these procedures are regulated by procedural norms vary significantly depending on the law-making body: parliament, President, minister, regional Duma, regional governor, head of an enterprise, etc.
It is worth noting that the legislative process is of particular importance, and therefore, from the stage of legislative initiative until the law enters into force, it is regulated by the Constitution of the Russian Federation, federal laws, regulations of the State Duma and the Federation Council.

Result law enforcement process – making an individual legal decision on the case or issue under consideration. The procedures for making enforcement decisions are varied. It is worth noting that they are simpler for bodies and officials of the executive and administrative authorities (decree of the President of the Russian Federation on the appointment of a minister, order of the manager on hiring an employee, etc.). The most complex procedures are for the adoption of acts of jurisdictional bodies, the law enforcement process in which, depending on the nature of the decision made, is divided into the following types:

1) proceedings to establish facts of legal significance. It is precisely this procedure that is provided for, for example, by the norms of the Civil Procedure Code (Articles 247–251);

2) the process of resolving disputes (for example, the resolution of economic disputes is regulated by the Arbitration Procedural Code of the Russian Federation);

3) the process of determining measures of legal liability (for example, the RSFSR Code of Administrative Offenses contains a section “Proceedings of Administrative Offences”; criminal proceedings are carried out according to the norms of the Criminal Procedure Code.

In the literature, it is proposed to highlight another type of legal process - legal clarification. It is worth saying that there are certain reasons for this: in the course of legal explanatory activities, specific legal decisions are issued - interpretive legal acts, which differ from both normative and law enforcement acts. At the same time, the legislator has not yet identified a special procedure for adopting acts of official interpretation and, therefore, does not consider such activity to be a special type of legal process.

Proceedings for the execution of law enforcement decisions also have specific features: court sentences, decisions in civil cases, decisions on administrative arrest and other decisions on the use of state coercive measures. Such law enforcement activities of government bodies should be considered as a special type of law enforcement process.

Types of legal process also differ according to industry. In the system of Russian law there are two procedural branches: civil procedural and criminal procedural law, regulating strictly civil proceedings and preliminary investigation and proceedings in criminal cases. There are also proceedings in administrative cases related to the application of legal liability measures, preventive measures, preventive and other measures of state coercion. In domestic legal science, the opinion has been expressed that a new branch is being formed - administrative procedural law. One should agree with this, given that the improvement of procedural legislation strengthens the legal basis for the activities of officials and bodies of the Russian state and contributes to the formation of administrative jurisdiction. Based on all of the above, we come to the conclusion that civil, criminal and administrative processes are distinguished by industry. An arbitration process will be a type of civil process. Proceedings in the arbitration court are regulated by the Arbitration Procedural Code of the Russian Federation.