Limits of Functional Analogy in the Regulation of Non-State Forensic Expert Activity

The study addresses the conditions and limits for filling gaps in the regulation of forensic examinations performed by persons who are not state forensic experts. The aim is to determine in which cases recourse to the rules on state forensic institutions secures procedural guarantees and in which it leads to an extension of the non-state expert’s duties that is not grounded in law. It distinguishes procedural relations, organizational and status matters, and contractual relations concerning payment, timing, and practical arrangements for an examination. The research combines formal legal and systemic analysis, functional interpretation, examination of the Constitutional Court and higher courts’ case law, and comparison of Federal Law No. 73-FZ with the Civil Procedure Code, the Commercial Procedure Code, and the Civil Code. A legal gap is identified only where an issue cannot be resolved through existing rules, principles, or an agreement, rather than merely because state and non-state experts are regulated differently. A functionally limited analogy model is proposed, based on six cumulative conditions: a genuine gap; sectoral homogeneity; functional compatibility; no creation of a new public burden; preservation of expert independence and equality of the parties; and reasoned judicial reviewability. Article 41(2) of Federal Law No. 73-FZ is shown to constitute a deliberate selective extension of rules. Therefore, Articles 5 and 13 cannot automatically be transferred to non-state experts. Civil-law analogy may operate in payment and organizational relations but cannot alter the expert’s procedural status or the evidentiary meaning of the opinion. A broad statutory analogy clause should be rejected in favor of targeted legislative extensions and a duty for the court to explain how a breached standard affects the quality of the particular opinion.