EFFICIENCY OF APPLICATION OF LAW ANALOGY AND LAW IN THE CONDITIONS OF DISCRETEITY OF CIVIL LEGISLATION

Abstract

The legislative discreteness in the form of legal gaps and universality of ways to overcome it as an analogy of law are analyzed. It was found out that according to most modern scientists, gaps of the law and the use of analogy of law are natural and inevitable, so the courts must be improved only in the use of these methods in the resolution of cases. The author concludes that this position is mistaken, because the use of the analogy of law by its very nature inevitably creates violation of the uniformity of judicial practice. This violation is defined as one the forms of discreteness in this case – the law. It was concluded that it is necessary to fill the gaps in the law by creating a system of interaction between the judiciary and legislative bodies that can signal the presence of gaps at the time of their discovery when considering a judicial dispute. The need to use the analogy of law should be considered as the basis for lawmaking. In this case, if any of the gaps in law at the time of the consideration of its elimination has already been fixed by judicial practice, the rooted analogy of the law must be anchored in law through the introduction of the law in a direct reference to the analogous legal norms. It is also concluded that a more detailed legislation regulating the use of the analogy of law is necessary.