Font Size: a A A

On The Judicial Remedy Loopholes In The Law

Posted on:2005-02-14Degree:MasterType:Thesis
Country:ChinaCandidate:Y H LiFull Text:PDF
GTID:2206360125465066Subject:Legal theory
Abstract/Summary:PDF Full Text Request
It is necessary for judge to remedy the unavoidable legal loophole. Although the reasons of legal loophole are different and the types are varied, as regards its judicial techniques, there are legal explanation, leak supplement and legal reasoning mainly. When judge use above-mentioned techniques to remedy the legal loophole, the knowledge, morality and prejudice of judge and other objective elements such as the social major value orientation, public policy and system environment. etc. all come into being the various degree impact on judge, thus increase the uncertainty of judicial judgement. Being restrained profoundly by judicial system and judge's qualities, the judge of our country have the obvious conservative inclination when they encountering the legal loophole, which is exceedingly incongruous with the situation of the legal loophole emerging in an endless stream in the period of social transition. Hence, effective measures should be taken in order to play judge's positive role in supplementing the legal loophole.The thesis has investigated, from the angle of judge, the judicial remedy techniques and the various elements which influence the judge to use techniques supplementing the legal loophole, and put forward some feasible relevant countermeasures. The full text consists of five sections, the main point every section is as follows:The first section: the summarization of legal loophole the legal loophole is defined as the deficiency of the legal provisions or the carelessness in content due to the various causes, which is violated the legislative purpose and planning, and has caused the difficulties of application of the law. therefore it has two significant features with the deficiency on content and the violation of legislative purpose. The legal loophole may be divided by different criterions into the leak since the beginning together with subsequence; the leak be fully aware and not be fully aware; the obvious leak and the conceal leak; the partial leak and the complete leak; the collision leak.The Second section: the judicial remedy techniques consist of: legal explanation technique, leak remedy technique, legal reasoning technique. The legal explanation technique includes narrowly defined legal explanation, value supplementing and leak supplementing. The leak remedy technique includes the analogical application, purposefulness limiting, the purposefulness enlarging and creativity to remedy; The legal reasoning technique includes explanatory derivation, reductive derivation, deductive and analogical derivation, dialectical derivation, weighing derivation. It make the judicial judgment great uncertainty that a large amount of subjective factors are permeated in when the judge using above—mentioned techniques.The third section: the knowledge, morality, prejudice of judge and other objective elements such as the social major value orientation, public policy, system environment and so on exert influence in various degree. It is prerequisite and foundation of remedying the legal loophole that judge's profound knowledge of law, extensive culture information accumulation, rich social experience and judicial experience. The judge's moral is the guarantee of using judicial techniques properly. Only possessing the noble character, could the judge get rid of the non-legal factors' getting involved wantonly, and exercise the right of liberal judgment properly The unrational factors such as the judge's emotion and prejudice usually affect his value orientation which influnence the effect of leak remedy. The social common sense and ethics are the important factors influencing the judge to weigh the interests, but the judge should possess the right and courage of making opposite judgment. As the informal legal sources, the public policy is applicable to supplementing the legal loophole. Yet the judge should have the veto when it conflicting seriously with the fundamental value of law. The nature of the judicial process determine the passivism role of the judge, whether the judicature independe...
Keywords/Search Tags:legal loophole, judge, influential factor, remedy
PDF Full Text Request
Related items