| Since the end of the Qing Dynasty, our country used Western civil law legal system for reference, and set up our own legal system characterized by statutory. Law is clear, user-friendly and stable, but also the existence of some limitations, such as rigid, illogic, and so on. To overcome legal illogic nature compensate for law loopholes, judicial persons take a variety of methods, including interpretation, analogy and continued legal creates in the judicial process. However, as one of the important means to fill loopholes in the law, the fate of application by analogy in the field of civil justice and criminal justice was very different since the beginning of modern times. In the field of civil justice, the judge can't refuse decisions is one strict rule. In order to meet the settlement needs of the conflicts, States take explicit or tacit manner, allowing the use of analogy. In the field of criminal justice, as the principle of crime and penalty by law restricts analogy, especially detrimental to the accused by analogy strictly prohibited. This article intends to conduct discriminate on the basis of analogy, analysis of criminal justice and civil justice through different characteristics to analyze the causes of this phenomenon. The article includes the introduction, body and conclusion.The first chapter through the analysis of analogy, defined this analogy discussed in the contents. First analysis of the use of analogy occasions that the strict sense analogy only exist in the area of justice, legislation does not exist analogy. Then from four aspects to analyze the meaning of analogy. On this basis, make this analogy to the definition : there are loopholes in the law, for cases of a non-specified may be applicable, judicial persons to fill loopholes in the law, for cases of disputes with the relevant legal provisions set patterns of behavior similarities, the use of analogy reasoning approach would be similar to provisions applicable to the case of an activity.Chapter II presents the differences of analogy between criminal justice and civil justice. The chapter has historical perspective of the modern criminal justice and civil justice analogy of different developments made brief presentations. Also analogy to the situation exists in the new China made simple ideas. That since the beginning of modern times, criminal justice ban analogy, especially strict prohibition against the... |
