Overcoming gaps in penal law through interpretation by the judiciary: theory and practice

The relevance of the article is due to the lack of unified limits and conditions of application of interpretation of norms of criminal-executive legislation to overcome gaps existing in it in the theory of criminal-executive law. It is established that in spite of some isolation in the legal literature the analogy of law and analogy of law as the ways of overcoming gaps from the norms interpretation, in the legal literature so far there is no common opinion of scholars concerning the essence of these legal phenomena. Based on the analysis of the opinions of various scholars, it is concluded that the lack of a unified position in this area is due solely to different approaches (narrow and wide) to the understanding of the term "interpretation". This circumstance does not affect the process of overcoming gaps by means of analogy because in all cases of applying analogy it is initially required to find a similar norm, to clarify its meaning and content or the meaning and content of general provisions of a branch of law, i.e. to apply interpretation. The article notes the peculiarities of interpretation of the criminal-executive legislation to overcome the existing gaps in it. In contrast to other branches of the "criminal cycle", the subjects of execution of criminal sanctions (article 16 of the CEC of the RF) and only in the second place - the court - are called to carry out such activities. However, with the adoption of relevant legislation at the end of the last century, it was the court that was given a real opportunity to form a kind of "precedent", which it retains to this day. In this regard, judicial interpretation of the norms of criminal-executive legislation to overcome the existing gaps in it is important in the context of the implementation of the principle of legality in the execution of criminal sanctions, as well as the achievement of its goals. Specific court decisions on overcoming gaps in the criminal-executive legislation (in the field of labour of convicts, bringing them to disciplinary responsibility) are analysed. Taking into account the provisions on the application of analogy of law and analogy of law developed by the general theory of law, as well as the requirements of the Constitution of the Russian Federation, the conclusion is made that today there are cases of expansive interpretation of the rules, which leads to the violation of the rights and freedoms of man and citizen. At the same time, the author allows an expansive interpretation to overcome gaps by analogy, if it does not change or improve a person's legal position, as it is consistent with the law and does not contradict part 3 of article 55 of the Constitution of the Russian Federation.

Keywords

Authors

References