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§ 3 Blanks in sources of the law of master and servant and the mechanism of their overcoming

The problem of overcoming of gaps in law has not only important theoretical, but also the big practical value. By consideration and the permission of labour disputes the commission on labour disputes, court or the council of conciliation can face such atypical situation and a lack (imperfection) of the law of master and servant when the relation disputable labour or directly connected with it in full or in part is not settled by the labour legislation and other sources.

In a similar situation there are questions on a blank establishment in the law of master and servant and its overcoming.

Let's notice, that in the given problem were engaged as Soviet (S.S.Alekseev, V.V. Lazarev, P.E.Nedbajlo, Ampere-second. Pigolkin, etc.) [1096], and modern theorists of the right (M.N.Marchenko, O.S.Panasjuk, E.I.Spektor, F. R.Uransky) [1097], and also researchers from other jurisprudence [1098], including and the law of master and servant (And. V.Ashihmina, A.K.Bezina, V.B.Dresvjankin, M.A.Zhiltsov, O.S.Kuryleva O.N.Jaroshenko, etc.) [1099].

In an explanatory dictionary of Russian of S.I.Ozhegova two word meanings "blank" contain: «1. A blank place in the text, an interval 2 peren. A lack, omission» [1100]. From these two senses in bolshej to a measure the second though it demands considerable specifications for jurisprudence corresponds to value of gaps in law.

In the legal encyclopaedia (L. V.Tihomirovoj and M.J.Tikhomirov) the gap in law is defined as «full or partial absence of legal regulation of a concrete kind of public relations in certain sphere which basically is regulated by rules of law and objectively demands legal regulation» [1101].

Scientists-theorists proved various definitions of the given term. For example, V.V. Lazarev as the gap in law (and it is equal and in the legislation) understood «full or partial absence of the standard establishments which necessity is caused by development of public relations and requirements of the practical decision of affairs, main principles, a policy, sense and the current legislation maintenance, and also other displays of the class will directed on regulation of the vital facts in sphere of legal influence» [1102].

Laying aside ideological underlying reason of the given definition, we will note as its positive characteristic attempt of the author to co-ordinate in it a formal and material component of concept of a blank.

In opinion With. V.Kuryleva, «under a blank in the law it is necessary to understand absence in the law of instructions on legal consequences of a case which according to the law has the jural significance»; «it is result of formal imperfection of the law» [1103]. Marking accuracy and laconicism of the given definition, we believe, that in the conditions of plurality of sources of the modern law of master and servant it is more expedient to talk about blanks in the law of master and servant or in legal regulation of relations in the work sphere which special case is the blank in the legislation on work.

In the western science the gap in law (gap, lacune, lucken) is understood as absence of norm (or incompleteness of available norm) for the decision of concrete dispute [1104] more often. Various sights of concept of gaps in law are proved and in works of modern theorists of the right which analysis we leave out of work [1105].

Attempts to make scientific definition of a blank in the law of master and servant were undertaken by Ukrainian scientist O.N.Jaroshenko [1106], Russian author V.B.Dresvjankinym [1107], and D.A.Tumanovym has been formulated the general the general definition of a blank in a positive law [1108]. The critical analysis of their sights was given in one of our monographies [1109], therefore we will leave it behind frameworks of the given paragraph.

In the Belarus and Kirghiz legislation the same Soviet tradition of an identification «blanks in the legislation» and "gaps in law" is observed. So, according to Law item 1 «On standard legal acts of Byelorussia» a blank in the legislation absence of the rules of law regulating public relations which necessity of regulation is caused by essence and sense of operating legal system of the state, principles and norms of international law »[1110] admits«. Similar legal definition is fixed in Law item 2 «On standard legal acts Kirghiz Respublkii» [1111]. For comparison: in legislation Armeni, Kazakhstan and Russia the concept of the gap in law does not reveal.

As rules of law so, and blanks, can contain not only in the legislation, but also in other sources of the law of master and servant (international treaties about work, collective agreements, agreements, local normative acts), hence, the above-stated legal definition in the Belarus and Kirghiz laws about NPA more corresponds to concept of the gap in law, instead of of the legislation.

On the basis of the analysis of the scientific points of view set forth above and criticism of legal definitions it is possible to formulate two following author's scientific definitions with revealing of signs of investigated concept:

Blank in the law of master and servant - a situation full or partial neuregulirovannosti norms of the law of master and servant of the public relations labour and connected with them requiring legal regulation;

Blank in the labour legislation - a situation full or partial neuregulirovannosti norms of the given branch of the legislation of the public relations labour and connected with them requiring legislative regulation.

From two specified concepts the first is wider than the second, i.e. the blank in the labour legislation is a blank special case in the law of master and servant. Blanks in collectively-contractual, local standard regulation of the relations labour and directly connected with them can be other cases of blanks in the law of master and servant.

If a blank in the labour legislation the state body or the official possessing pravotvorcheskoj the competence the blank in the law of master and servant can be filled by means and other sources of the law of master and servant (the collective agreement has the right to fill only, agreements or local standard (legal) the certificate).

If the blank in the law of master and servant is found out competent pravotvorchesky by the subject, such blank should be eliminated (is filled). At revealing of blanks in NPA normotvorcheskie the bodies (officials) who have accepted (published) these certificates, are obliged to make to them corresponding additions or the changes eliminating blanks.

The problem of filling of the gaps in the law of master and servant by means of local standard legal regulation during the Soviet period was investigated by R.I.Kondratyev [1112]; some of its conclusions keep the urgency and today.

During the present period social partners including the employer, are not limited in local regulation of the relations labour and directly connected with them by the unusual cases specially reserved by the legislation. It speaks displacement of accents in a method of the law of master and servant with centralised on decentralised (including local) trudopravovoe regulation. It is incorrect to limit sphere of possible filling of the gaps in the law of master and servant only to labour relations, it is necessary to describe more full a subject of the law of master and servant, specifying on the relations labour and directly connected with them. It is necessary to consider also change obshchepravovogo a principle «everything is forbidden, that is not authorised» (characteristic for the Soviet legal system) on more democratic principle, characteristic for the modern right, - «everything is authorised, that directly it is not forbidden».

So, in modern conditions the local rules of law created by means of the conclusion of collective agreements and acceptance of local normative acts, can meet lacks in the law of master and servant in the presence of following conditions:

1) presence valid, instead of an imaginary blank in the law of master and servant, i.e. Absence of norm of the legislation on work, the collective agreement or the agreement, the local normative act regulating the relation corresponding labour or connected with it, objectively requiring legal regulation;

2) absence of an interdiction in the labour legislation in a part collectively - contractual or local regulation of the corresponding relation.

O.S.Kuryleva truly paid attention that the right as the dynamic and spontaneous system «possesses the special mechanisms, allowing to overcome blanks in process pravoprimenitelnoj activity» [1113 [1114].

Having established by studying of "a legal matter» blank presence, the commission on labour disputes, court or the council of conciliation should overcome it. To overcome the gap in law it is possible for one of two ways: by means of analogy of the right or the legal analogy.

Before to analyze the above-stated ways, we will try to understand a question on a possible place of norms, their providing, in system of the law of master and servant. The Soviet researcher And. V.Ashihmina believed, that the analogy «concerns protsedurno-remedial institutes as serves realisation of rules of law or principles, providing protection of rights and interests in process pravoprimenitelnoj activity». It is difficult to agree With the given judgement. Proceeding from through value of norms about legal analogies and the rights for branch of the law of master and servant which "serve" blanks revealed by practice at any institute of the given branch (including the institutes containing protsedurno-rules of procedure), a place of the norms fixing the mechanism of application of the legal analogy and the right - in the general part of the law of master and servant and accordingly in gl. 1 "General provisions" TK.

Taking into account workings out of scientists-theorists (V.V. Lazareva, Ampere-second. Pigolkina, etc.) [1115] we will notice what fill gaps in law representatives can only on that pravotvorcheskie bodies by acceptance of new rules of law (including bodies of the constitutional control, Supreme Court Plenum). In turn the competence on overcoming of gaps in law which is carried out by means of analogy of the right and the legal analogy, possess pravoprimenitelnye bodies, including general jurisdiction courts by consideration of labour disputes.

The legal analogy institute is fixed in ch. 1 items 88 of the Law of Armenia «On legal acts», item 10 of item 1 and ch. 2 items 13 of the Law of Kazakhstan «On legal acts», and also in item 1 and 72 Laws «On standard legal acts of Byelorussia». According to item 1 of the last the legal analogy is «application to public relations owing to absence of norms of the legislation regulating given public relations, the norms of the legislation regulating similar public relations» [1116].

So, the legal analogy is one of ways of overcoming of the gap in law by adjudication on the basis of the law or other certificate of the legislation regulating similar (identical) public relations.

And. V.Ashihminoj has been formulated a true conclusion about «two forms of the legal analogy (analogy of norms of the law of master and servant and analogy of norms of other branches of law» [1117].

Last form (to be exact - a legal analogy kind) also is called as the interbranch legal analogy or subsidiary application of norms of related (adjacent) branches of law. The administrative law and the right of social security can be carried to the last taking into account occurrence and genesis of branch of the law of master and servant [1118] first of all civil. And. V.Ashihmina truly marked a secondary role of interbranch analogy: it is admissible «only in that case when possibilities for the legal permission of a question by all means of the given branch of law» [1119] are used. In other words, at a blank establishment in the labour legislation pravoprimenitelnyj the body should try to overcome it in the beginning by analogy of norms of the legislation on work and only at absence in the given branch of the norms regulating similar public relations, to pass to search of such norms in right allied industries.

At blank detection in legal regulation of the relation concrete labour and connected with it the norm regulating similar relations, it is necessary to find in a following order: 1) in the labour legislation; 2) in legislation allied industries (for example, in civil) and 3) as a whole in the legislation.

In Belarus possibility of subsidiary application to labour relations of the civil legislation (as the interbranch legal analogy) is based on item 2 of item 1 and item 1 of item 5 GK of Belarus 1998, and all legislation - on Law item 72 «On standard legal acts of Byelorussia». Examples of subsidiary application of norms GK of Belarus to labour relations not so it is frequent, but nevertheless meet in judiciary practice, for example, at definition of the size of indemnification of moral harm [1120].

M.V.Lushnikova results as examples of interbranch analogy application by the Russian vessels with a support on an explanation of Plenum of the Supreme Court of the Russian Federation of norms of civil law about misuse of right, disposal of legal proceeding about protection of advantage of the worker in labour activity [1121]. TK Armenia in some cases supposes regulation of those or other labour relations by norms of civil law. In particular, according to ch. 3 items 16 TK of Armenia the legal capacity and capacity of the employer - the citizen are regulated GK Armenia. According to ch. 2 items 271 TK of Armenia the obligations arising owing to causing of a material damage, are regulated GK Armenia if the present Code does not provide other. In this case the norm supposing on questions, directly not settled in TK, subsidiary application of norms of civil law is used otsylochnaja.

If the analysis of labour and other legislation has not allowed to apply the legal analogy, it is necessary to resort to other way of overcoming of a blank - analogies of the right.

The concept of analogy of the right is used in a number of member states EAES (Law item 1 «On standard legal acts of Byelorussia», item 21 of item 1 of the Law of Kazakhstan «On legal acts», ch. 2 items 6 GK the Russian Federation etc.). The given legal definitions (with small editorial differences) are reduced to the following: analogy of the right - the resolution of dispute proceeding from general principles and sense of the legislation, the general principles of the right and principles of concrete branches of law. Consider expedient in the long term to add similar norms-definitions instructions and on interbranch principles of the right.

According to E.I.Spektor, the analogy of the right has two components: «1) application of the general principles of the branch established inductive by proceeding from separate norms; 2) application of requirements of humanity, a rationality and justice, that is the legal system beginnings as a whole» [1122].

In our opinion, the analogy of the right shares on three kind and an application stage:

1) intrabranch analogy of the right (search of the branch legal principle is led, allowing to resolve probelnyj a case (item 3 TK of Armenia, item 13, 14, 20 TK Belarus, item 2, 9, 10 TK Kyrgyzstan, item 4-7 TK of Kazakhstan, item 2-4 TK the Russian Federation));

2) interbranch analogy of the right (in case of absence of a branch principle it is necessary to address to interbranch principles (for example, contract freedom));

3) obshchepravovaja analogy of the right (if it was not possible to resolve probelnyj a question, leaning against a branch or interbranch principle it is necessary to address to legislation general principles, such as humanism, justice etc.).

At application of analogy it is necessary for vessels to address both to norms-principles, and to the principles deduced by jurists from the comparative interpretation of the legislation on work.

For comparison: known Israeli scientist A.Barak so describes sequence of the judicial discretion at completion of a blank ("lacuna") by court in general law legal system: if there is no norm in the statute law, there is no answer in a case law the judge addresses to analogy means and if also them insufficiently - solves business «in the light of principles of freedom, justice, justice and the world» [1123].

The first kind (application stage) analogies to name right it is possible branch analogy of the right, the second - interbranch analogy of the right and the third - obshchepravovoj analogy of the right.

Not stopping in detail on concrete examples of application of the legal analogy and the right to not settled or it is incomplete to the relations settled labour and connected with them that was in detail analyzed in O.S.Kurylevoj's [1124] works, we will concentrate attention to the general approaches to designing of norms about ways of overcoming of blanks in the law of master and servant.

In the dissertation And. V.Ashihminoj had been formulated projects of three articles about overcoming of the valid blanks in the law of master and servant [1125] which can be partially used taking into account modern realities and terminology. V.B.Dresvjankin has come to substantiated conclusions about impossibility of use in the law of master and servant of norms GK about the legal analogy and analogy of the right, considering distinction of branch principles [1126]. It explains requirement of the branch mechanism of overcoming of blanks for the law of master and servant.

Standard regulation of ways of overcoming of gaps in law.

The labour legislation of Belarus, Kazakhstan, Kyrgyzstan and Russia does not contain the general provisions fixing ways of overcoming of blanks in the law of master and servant.

In TK Armenia there is item 10 «Application of norms of the law of master and servant by analogy», containing only three norm: about the legal analogy; analogies of the right and restrictions on application of institute of analogy [1127]. It is interesting, that above-stated article does not provide the interbranch legal analogy and the right, and is equal to analogy on a basis obshchepravovyh principles. Given article allows to overcome blanks only in norms of the legislation on work, but not in other sources of the law of master and servant. In it we see some incompleteness of the mechanism of overcoming of blanks in the law of master and servant of Armenia though the fact of presence of similar article already should be estimated positively.

For comparison: in the Law «On standard legal acts of Byelorussia» item 72 «Elimination and overcoming of blanks», consisting of three norms [1128] contains. And parts 2 and 3 items 72 of the given Law, specifying in the general possibility and separate interdictions of application of the legal analogy and analogy of the right, do not regulate the mechanism of overcoming of blanks, leaving these questions for branch legal regulation. In Byelorussia rules of application of the legal analogy and analogy of the right are regulated only in item 5 GK of Belarus [1129] in more details. And though item 1 GK of Belarus supposes subsidiary regulation of labour relations by the civil legislation if the legislation on work and population employment does not provide other, we believe, that general provisions about application of institutes of the legal analogy and the right with reference to branch of the law of master and servant have special specificity and should be regulated directly in TK Belarus. This specificity is shown, in particular, in the following: the system of sources of the law of master and servant is not limited exclusively to the legislation, but also includes is social-partner standard agreements and local normative acts, which, on the one hand,

Can meet lacks in the legislation and other sources of law, but, as a rule, with the limited sphere of action on a circle of persons and in space, on the other hand, these sources can create norms with blanks which also are necessary for overcoming in practice. Besides, it is necessary to pay attention, that to the relations not settled labour and connected with them the institute of the interbranch legal analogy (subsidiary application of norms of allied industries of the right) and interbranch analogy of the right can be applied also.

The order of use of the legal analogy and analogy of the right in item 13 of the Law of Kazakhstan «On legal acts» (ch is a little bit more in detail settled. 1 contains the general rule about applicability of analogy at blanks, ch. 2 it is devoted legal analogy application, ch. 3 - analogies of the right, ch. 4 - to restrictions on analogy application). We Will pay attention to paragraph 2 ch. 4 same laws on which possibility of application of the legal analogy and analogy of the right in the relations regulated by concrete branches of the legislation, is defined by corresponding acts [1130]. The given norm of the Kazakhstan legislator is rather logical, but she assumes necessity of fastening in TK articles with rules about trudovopravovom the mechanism of institute of analogy.

For comparison: in the Law «On standard legal acts of the Kirghiz Republic», in the Law of Armenia «On legal acts» general provisions about application of the legal analogy and analogy of the right are not present.

Taking into account the investigated scientific points of view and rather-legal analysis we will formulate a number of conceptual conclusions for development of the mechanism of overcoming of blanks in regulation of the relations labour and directly connected with them:

1) blanks in the law of master and servant are not reduced to blanks in the labour legislation; they can exist also in collective agreements, agreements, local normative acts;

2) for overcoming of blanks in the law of master and servant is admissible to use the interbranch legal analogy and the rights (norms and principles of allied industries of the right regulating similar public relations);

3) a priority of the branch legal analogy and the right in relation to the interbranch legal analogy and the rights and obshchepravovoj analogies of the right, based on the application first priority to labour and connected with them relations of norms and principles of the law of master and servant.

On the basis of the approach set forth above with a view of fastening of the branch mechanism of overcoming of blanks in sources of the law of master and servant it suggested to provide in Modelling TK article of the following maintenance:

«Article ______. Overcoming of blanks in the law of master and servant

In the absence of the norm regulating the corresponding public relation, entering into a subject of the law of master and servant, in sources of legal regulation of the relations labour and directly connected with them (a blank in the law of master and servant) it is necessary to apply the norm of the law of master and servant regulating similar public relations (the branch legal analogy).

At detection of a blank and absence of norm of the law of master and servant regulating the relations similar labour and directly connected with them, it is necessary to address to principles of the law of master and servant (branch analogy of the right).

At impossibility of overcoming of a blank in the law of master and servant on the basis of the branch legal analogy and the right application of norms civil and other allied industries of the right regulating similar relations (the interbranch legal analogy) is admissible.

At impossibility of overcoming of a blank in the law of master and servant on the basis of parts of the first - third present article application of general principles of the legislation (obshchepravovyh principles) is admissible. ».

The offered norms will allow is more system (in steps) to overcome revealed judicial both other pravoprimenitelnoj practice and scientists blanks in the law of master and servant with "toolkit" use (norms and principles) both the given branch of law, and allied industries of the right and achievements of the legal doctrine.

In conclusion of the fifth chapter of the dissertation we will formulate the basic conclusions:

1. The comparative analysis of characteristic lines of modern sources of the law of master and servant, spent to work, has allowed to formulate eight basic tendencies of development of the given sources, characteristic for many European countries and republics of average Asia, including member states EAES. The given tendencies caused in many respects by processes of globalisation, regional integration, should be considered by the states at realisation trudopravovoj politicians for gradual rapprochement of the labour legislation with a view of maintenance of similar regulations of the relations labour and directly connected with them on uniform labour market EAES.

2. Fastening in TK member states EAES and, probably, in Modelling TK the separate article devoted to the mechanism of the permission of collisions of norms of the law of master and servant, will allow to approach uniformly to sequence of application of those or other conflict rules which are separated now and essentially differ.

3. At formation of the branch mechanism of overcoming of blanks in the law of master and servant is admissible to use the interbranch legal analogy (norms of allied industries of the right regulating similar public relations). Thus the priority of the branch legal analogy and the right in relation to the interbranch legal analogy and obshchepravovoj analogies of the right, based on the application first priority to labour and connected with them relations of norms and principles of the law of master and servant should be provided.

4. By working out Modelling TK in it it is expedient to include separate articles «Conflict rules of the law of master and servant» and «Overcoming of blanks in the law of master and servant» taking into account editions offered by the author (dissertations are led in the Appendix).

С.23.

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A source: TOMASHEVSKY Cyril Leonidovich. SYSTEM of SOURCES of the LAW OF MASTER AND SERVANT of MEMBER STATES EAES: the THEORY And PRACTICE. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2017. 2017

More on topic § 3 Blanks in sources of the law of master and servant and the mechanism of their overcoming:

  1. CHAPTER 5 of the TENDENCY of DEVELOPMENT of SOURCES of the LAW OF MASTER AND SERVANT, the BRANCH MECHANISM of OVERCOMING of COLLISIONS And GAPS IN LAW
  2. § 2 Collisions between sources of the law of master and servant and formation of a conflict legal mechanism in member states EAES
  3. § 3. Research of questions of sources of the law of master and servant in a pre-revolutionary, Soviet and modern science of the law of master and servant
  4. Spektor Ekaterina Ilinichna. BLANKS In the LEGISLATION And the WAY of THEIR OVERCOMING. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2003, 2003
  5. § 4 Concepts of system of sources of the law of master and servant and their classification
  6. CHAPTER 4 FORMATION NADNATSIONALNYH of SOURCES OF LAW And the WAY of HARMONIZATION of SYSTEMS of SOURCES of the LAW OF MASTER AND SERVANT To MEMBER STATES EAES
  7. § 1 Concepts of the international law of master and servant and system of its sources
  8. Some aspects of legal influence of the state on the public relations entering into a subject of the law of master and servant, in formation of the law of master and servant in Russia
  9. § 1 Constitution as basis of system of sources of the law of master and servant
  10. § 5. The concept of triune system of sources of the law of master and servant
  11. § 1 Modern lines of development of sources of the law of master and servant of member states EAES
  12. § 4. Kinds and a parity with the national legislation nadnatsionalnyh sources of the law of master and servant in EAES
  13. § 3. Experience of harmonisation of the labour legislation and formation nadnatsionalnyh sources of the law of master and servant in the CIS and EvrAzES
  14. § 4 Certificates of the higher courts of justice as sources of the law of master and servant and a legal representation problem
  15. CHAPTER 1 HISTORICAL REGULARITIES And THEORETICAL ASPECTS of the PROBLEM of SOURCES of the LAW OF MASTER AND SERVANT
  16. CHAPTER 2 of the PROBLEM of FUNCTIONING of NATIONAL SOURCES of the LAW OF MASTER AND SERVANT In MEMBER STATES EAES