FOR THE APPLICATION OF ANALOGY OF LAW IN THE CRIMINAL LAW OF FOREIGN STATES
Article is devoted to the very topical at the moment topic -analogy of the law in criminal law. The article analyzes the criminal legislation of foreign States relating to the application of analogy of law. For comparative analysis the author singles out the similarities of the Institute of analogy in criminal law of foreign countries, and opposing trends regulation of this Institute. A comparative study of the problems of the analogy of the law showed that the state, in the criminal laws which Express the appropriate relevant to the aforesaid aspect of the principle of legality, can be conventionally divided into two categories. The first author refers the state, criminal law which contains norms that directly prohibit the use of analogy of law or interpretations. This may include such rules, which do not include these norms to prohibit the bringing to criminal responsibility for acts that are not described in the law. The second group is the author classifies countries in their criminal law which allows the application of the analogy. In the first group of countries included France, Germany, China, Japan and most of the CIS member States. So, in France it is forbidden how to use an extended interpretation of the norms of the criminal code, and apply by analogy. However, practice makes an exception to this rule, allowing extensive interpretation of the criminal law, not worsens the position of the perpetrator. As to the CIS, in most criminal codes of these States, except for a few, as in the criminal code of Russia, has a separate provision on the prohibition of the use of analogy. Criminal code of Germany such a rule, but its meaning is inferred from the principle of legality, the wording of which is specifically provided in section 1 of the criminal code of Germany. A similar situation is observed and in the criminal law of the China. With regard to Japan, the requirement of the prohibition of analogy Japanese lawyers derive from the constitutional provisions. The second group of States, where the analogy is enabled, the author includes England, the US, the North Korea and the countries of the Muslim world. For example, in the United States analogy of the right (the law) is provided at the Federal level. Applying similar standards are permitted and some States. However, the rule analogy does not apply to a Special part of criminal law. In the Muslim countries, reasoning by analogy is kyas. The essence of it consists in applying the provisions established by the Qur'an, the Sunnah and Eagmah, measured in fewer new cases, they have not provided for. Thus, the «average» state, according to the author, has this approach, according to which the analogy in its criminal law is not completely negated and limited to only the General part or the interpretation of norms of the criminal law. The obligatory condition in this case is the inadmissibility of strengthening of criminal responsibility for the act committed.