An Analysis Of The Function Of The Folk Law As A Remedy For Legal Loopholes

The emergence of legal loopholes in the law in judicial process is an unavoidable fact, which needs to be supplemented by a series of legal methods. It is not rare that the folk law is uesded in trials; therefore, it should further get its deserved status in the judicial practice. As part of supportive materials of legal regulatory framework, the folk law should provide specific basis for trials dealing with legal relationships where legal loopholes exist, through reasonable judicial process and legal methods.Firstly, the author explores the causes of legal loopholes and the functioning basis of the folk law in the cure of legal loopholes. As the folk law is a well known and widely accepted norms of facts for the group as, it can provide support for the discretion of judges and offer relative restrictions for judges to prevent the unpredictability of trials.Secondly, the author analyses the relationship between the folk law and the scope of legal loopholes, treats on the basis, attributes and judicial functions of the folk law as a remedy for legal loopholes. The author comes to the conclusion that the folk law contributes a lot to judicial practice. It helps the judge seek the informal sources of law in order to fill the legal loopholes, facilitates both sides in proceedings to accept the judgment and reduces the cost of justice.Thirdly, through analysing typical cases, the author points out that the folk law plays a supplementary function under the framework of judicial practice, mainly through three paths. First, it provides a basis for principles of law or as a support for the judge's discretion. Second, it supplies a ground for flexibility exertion of legal norms so that no claim shall be dismissed for lack of legal guidance. Last but not least, it serves as a valid proof of the facts of the case for parties in litigation.