On The Loopholes In The Law And Its Filling

This article discusses the problem of legal loopholes and how to fill it. Legal loopholes must be pay full attention in any society. In recent years, scholars of Mainland China and Taiwan has made great achievements in this issue, Such as, Professor Liang's "Civil Hermeneutics" has Detailed description about this Problem, The "legal loophole·apply by analogy" of Huang Jian-Hui is also make a detailed analysis and description about the issue of legal loopholes, Mr. Huang Maorong's "Law and Modern Civil Law", Mr. Yang Renshou's "Methodology of Law" and so on. These studies focused primarily on the Analysis and Discussion on the content and additional method of the legal loopholes. They ignored the Subject of complementary about legal loopholes-the research of judge.This paper attempts to explain the legal loopholes from the theory of legal loopholes and the different methods to fill it. The main Objective is to guide the Judicial practice about judge, to achieve the legal system society. Through the analysis of the concept of legal loopholes, Legal gap and the law of outer space, to understand the intrinsic meaning of the legal loopholes, and the different ways of fill the loopholes from the analysis of specific cases. Specifically, based on the two categories, legal loopholes within the legal system and loopholes in the law outside the legal system, Loopholes in the law is divided into Open Loophole, Hidden loopholes, Subsequent legal loopholes and so on. The way of analogy to fill the open holes, the way of the Limit purpose to fill the hidden loopholes in the law, For the purpose of expanding to fill the subsequent legal loophole, Through Principles of law, comparative law, custom, a way to measure interest to fill the loopholes in the law outside the legal system. In specific Judicial practice, This article discusses the use of technology to the judge's judicial to fill the legal loopholes, Granted specific discretion to the judge, and The judge must also be restricted in the discretion.The character of justice in accordance with the views of Professor Zhang Wenxian is "State Judiciary based on Statutory powers and statutory procedures, the special events to Process the case by law". However, justice is the final barrier to maintain social justice, The purpose of justice is to adjust and solve a variety of social life and conflict of interest dispute, and to maintain harmonious social order. However, in the judicial practice, the administration of justice must be deal with the judge, but when the existing laws can not cover all the social activities, or exist legal loopholes, in the face of legal loopholes, how to referee by judge in this case is an issue of great practical significance. This paper discusses how to eliminate loopholes and the mehthod of the judge's decision from two aspects, one is grant discretion to judge, the other is how to restrict the discretion of judges.