The analogy of law in civil law practice / A analogia na prática do direito civil

Viktor Mikryukov

Resumo


The relevance of the research was determined by the increase in practical significance of the analogy of law as a tool to resolve legal uncertainty, as well as a growing interest for analogy method implementation in civil jurisprudence. The goal of the research was to show how actively the legal analogy mechanism is applied in current civil law practice, to identify the reasons for the increasing role of legal analogy as an active tool in jurisprudence, and to prove the necessity to avoid the doctrinal qualification of legal analogy as an extraordinary and exceptional phenomenon in the process of justice administration. The method of analogy was regarded as the key tool as well as the object of the study. Moreover, alongside with the special comparative legal and technical legal instruments, the author applied such general logical methods, which are characteristic for the most civilized studies, as the analysis and synthesis, induction and deduction, comparison and generalization. The author defined some prominent cases that were decided by means of legal analogy application and can form the basis for further research and the development of the relevant judicial practice. In addition, the derogation of the real role and socially positive significance of civil law application in legal analogy practice have been criticized. Furthermore, the author introduced a new concept of the correlation between the legal standards’ development and itemization and the degree of legal analogy demand in jurisprudence. The work contributes to the development of theoretical ideas about the essence of legal analogy in civil law practice, and it serves as the basis for a wider and more effective application of this mechanism not only as a means of political and legal expediency of existing legal norms interpretation, but also for ensuring good faith and justice in specific dispute resolution.


Palavras-chave


legal analogy, civil law, principles of law, justice, good faith, lawmaking

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DOI: https://doi.org/10.12957/rqi.2020.51962


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