ANALOGY OF STATUTE AND ANALOGY OF LAW IN THE CONTEXT OF THE APPLICATION OF OTHER METHODS OF PROTECTION OF THE VIOLATED RIGHT IN ADMINISTRATIVE PROCEEDINGS

Abstract

Introduction. The article establishes that methods that are not identical to the methods directly provided for in the law (paragraphs 1-6 of the first part of Article 5, paragraphs 1-8-1 of the second part of Article 245 of the Civil Code of Ukraine), but which do not contradict the law and are effective are other ways of protecting violated rights in administrative proceedings.

Summary of the main results of the study. Obviously, the given criteria for the clear application by the court of other methods of protection of violated rights in administrative proceedings are not enough. It is noted that the administrative court should have a clear algorithm of actions for such use of other methods of protection of violated rights. It was concluded that such methods are not directly identical to those provided by law, but must be similar to them and similar to them, taking into account the features of other methods of protecting violated rights in administrative proceedings, which are directly indicated in the first part of Article 5 and the first part of Article 245 of the Civil Code of Ukraine.

This conclusion of the article is made by applying the grammatical method of interpretation of the first part of Article 5 and the first part of Article 245 of the Civil Code of Ukraine, where the fixed phrase "another way" occurs as a separate syntactic unit (construction), which was formed by the legislator by combining the two above-mentioned words on the basis of the subjunctive connection, as well as taking into account grammatical connection and content. After all, as mentioned in subsection 1.2. of this dissertation, the word "other" means that which differs from the specific one provided within the specific circumstances, but the combination of this word with the word "method" indicates that the other method in all its features and legal nature must remain a full and effective method protection of violated rights in administrative proceedings. Thus, another method should be similar and similar to the methods of protecting violated rights in administrative proceedings, which is directly provided for by law (paragraphs 1-6 of the first part of Article 5, paragraphs 1-8-1 of the second part of Article 245 of the Civil Code of Ukraine). In this connection, it can be concluded that when we talk about the concrete content of other ways of protecting the violated right, then in this case we should start from the possibility of applying the analogy of the law and the analogy of the law. This is due to the fact that the named categories, by their very nature, deal with work aimed at the application of similar phenomena, objects, etc. (analogy - (Greek. Αναλογια - "correspondence") - similarity, similarity in general of different objects, phenomena according to certain properties, signs or relations). It is taken into account that the legislation prohibits the application of the analogy of the law and the analogy of the law only to determine the grounds, limits of powers and the way of actions of state authorities and local self-government bodies. In other cases, such application will be possible if there are appropriate grounds. In particular, as stated in part six of Article 7 of the Civil Code of Ukraine, in the absence of a law regulating the relevant legal relations, the court applies the law regulating similar legal relations (analogy of the law), and in the absence of such a law, the court proceeds from constitutional principles and general principles of law ( analogy of law).

Conclusion. That is, the reason for such application is the absence of a law regulating specific legal relations. Such an approach is quite important given the fact that it is prohibited to refuse to consider and resolve an administrative case on the grounds of incompleteness, ambiguity, contradiction or absence of legislation regulating disputed relations (part four of Article 6 of the Civil Code of Ukraine). It is noted that in this case it is an indirect way of fixing the possibility of applying the analogy of law or law.