To the Issue Concerning Analogy of Statute and Analogy of Law in Conflict of Laws Framework

Abstract

Problem statement. The present research stems from acknowledgement by several specialists regarding “analogy of statute” and “analogy of law” application in Private International Law of the Russian Federation. The author considers this proposition as contradictory to article 1186-2 of the Civil Code of the Russian Federation and conflict of laws essence. Goals and tasks of the research. The main goal of the research is to substantiate inapplicability of “analogy of statute” and “analogy of law” in Private International Law of the Russian Federation. The indicated goal presupposes following tasks, i. e. to reject applicability of article 6 of the Civil Code of the Russian Federation in conflict of laws framework; to prove substantial inappropriateness of “analogy of statute” for choosing applicable law and to show direct application of the closest connection principle in case of conflict of laws rules absence. Methods. Methods of the research embrace general scientific and particular scientific. The first are represented by general tools of logic, including analysis, synthesis, induction, deduction and analogy, as well as systemic approach; comparative legal method plays key role among the second. Results, brief conclusion. The main conclusion of the research is that conflict of laws framework is not aware neither of “analogy of statute”, nor of “analogy of law” as utilized by the Civil Law. In conflict of laws, the closest connection principle, as general gap-filling conflict of laws rule according to article 1186-2 of the Civil Code of the Russian Federation, steps up as sole conflict of laws instrument when it is impossible to choose applicable law on the basis of existing conflict of laws rules stipulated by international treaties of the Russian Federation, Civil Code of the Russian Federation, other statutes or customs acknowledged in the Russian Federation.