ON CERTAIN ISSUES OF ANALOGICAL LEGAL REASONING IN CIVIL PROCEEDINGS IN UKRAINE

Abstract

The article is devoted to the application of the analogy of the law in civil proceedings in Ukraine. It has been found that despite the lack of legislative enshrinement of the procedural analogy in the Civil Procedure Code of Ukraine, its application is consistent with the legal opinion of the Grand Chamber of the Supreme Court and is therefore legitimate. The court of cassation instance has already formed the practice of applying procedural analogy, in particular in matters of judicial control over the execution of court decisions and restoration of lost proceedings. An analysis of potential cases of the need to apply the analogy of the law in the Civil Procedure Code of Ukraine was carried out, and recommendations were formulated for the application of certain civil procedural norms by analogy of the law. The grounds for applying the analogy of the law and the subsidiary application of legal norms are delineated; it is established that if the law provides for subsidiary application (for example, the rules on simplified claim proceedings - to the appeal proceedings), then it has priority over the analogy of the law. It is justified that in those cases where it is possible to apply a systematic interpretation of legal norms, there is no gap, and the application of analogy in such a case is impossible. The exceptional nature of the application by analogy of the norms of other branches of procedural law has been proven - only in the case of impossibility of the application by analogy of the norms that regulate civil proceedings. Thus, it is appropriate to apply the norm of Part 3 of Article 415 of the Criminal Procedure Code of Ukraine regarding the binding nature of the conclusions of the appellate court after the annulment of the verdict in the part of the civil claim and the appointment of reconsideration of the civil claim in accordance with the Civil Procedure Code of Ukraine. At the same time, the application of norms from other procedural branches should not introduce into civil proceedings those institutions, principles and procedures that are not characteristic of it. It has been established that it is impossible to expand the range of procedural obligations of the participants in cases and to expand the list of grounds for the application of procedural coercion measures in the manner of applying the analogy of the law. The need for legislative power to respond to gaps in the civil procedural law revealed by law enforcement practice is substantiated; the necessity of enshrining the procedural analogy in the text of the Civil Procedure Code of Ukraine, as well as the grounds and limits of its application, is motivated.