Research On Analogy In Civil And Commercial Law

The discrepancies lie in such aspects such as the location of analogy, the applicable premise of analogy, and the quoting object of analogy, cause the discrepancies of scholars' definition to the conception "analogy". Due to different historical tradition and culture, there are discrepancies between Continent law system and Anglo-American law system in the position, basis and applicable scope of the application of law. To definite the conception "analogy" precisely, it must distinguish the general conception applied in the two legal systems together and special conception applied in the specific legal background only.In the connection among analogy and relative conceptions, Analogy, analogical reasoning and analogical interpretation are different conceptions. It should be distinguished. Analogy and reverse inference are different inferring progress because of the repulsive applicable premise and the different results. Though the three conceptions, analogy, purpose limiting and purpose extending, are also limited in the same categories, but its and rear two basis is different. It must be analyzed concretely in the relationships between the analogy and fiction, quasi-application, illustration. The key lies in whether the latter has supplement for loopholes. However the argumentum a majore ad minus is a special kind of analogy.Viewing from legal principle, the analogy is the dialectic unification of the form rational and practice reason; and is the dialectic unification of fair justice of law, stability under certain condition; Judge's right of discretion is the premise, guarantee and restriction. Due to the different legal values pursued by the public law and private law, it is not identical for the position of the "analogy" in public or private law. Though having loophole in all legal fields, but for prevent national power's hurt to personal right, the analogy only applied when being helpful for personal right in public law. In civil law which carried on the autonomous of private law, the analogy has the position of universal application. There exists exceptional non-application only in the specific field of civil law only as specifying the protection of value.The judgments of similarities are the core of analogy. The judgments of similarities are such a progress that be functioned by different factors comprehensively and composed by various factors from multiple level. Its key factor —legislative intention, must be pursued from the basic principle of law, the unify of legal meaning and the nature of things. We should grantee the correct application of the analogy fromthe aspects such as raising the quality of judge judges, establishing the advertisement system of the judgment and establishing the prejudication system.Through comparing the different legislative models to analogy, in the civil code of our country, we should regulate the analogy precisely after referring to the legislation of the Italy and Russia.