The Cause And Added Of The Legal Loophole

In late nineteenth century, the final jurisprudence theory of jurist Rudolph von-Jhering opened the free-law movement. From then on they began to criticize theviews of "legal logic system is self-sufficient and legal norms have no loophole"and the legal loophole was finally admitted. The so-called legal loophole, it is anambiguity of the law which have not fully achieved anticipated target, in the existingconditions, based on its basic idea of the current positive law and unwritten law andinner purpose. It have the characteristics, including Non-sufficiency, Limitation,Violation of planning, Non-applicability. According to different standard, the legalloopholes can be divided into: Whole and part of legal loophole, abinitio andafterwards legal loophole, obvious and hidden legal loophole.etc. If the law havethe following circumstances, it can be sure that there are certain legal loopholes:(1)There are completely no law norms adjust certain life events;(2) Although there arelaw norms adjust the life events, but between conflicting standards.(3) Althoughsome legal norms normalize the similar cases, but to not adjusted this life events at all.(4) Although the legal adjust the certain life events, but the legal norm is notappropriate.Through the comprehensive understanding of legal loophole, we can see the corecharacteristic is the non-sufficiency. Many aspect of problems, such as conservation,hysterectomy, ossification of law and the degree of controllability of law to our sociallife are completely originated from the characteristic of non-sufficiency. The lawusually have defects mainly by three reasons including: Partly because of itsconservative orientation; partly because of its inherent ossification; eventually partlybecause of it is closely related to the degree of commandments about social life.The characteristic of non-sufficiency of law determined that the legal loopholesare inevitably existed. But the problems are: in the face of the cases that urgently needto be refereed for and inevitable legal loopholes, only by supplementing the existinglaw loopholes can we succeed in solving the problems of our social life. Thesupplementing method of legal loopholes are not limited to perspective of the theory of legal hermeneutics, which mainly include: the application by analogy of legalnorms and teleologische reduktion and expansion of legal norms and the supplementof flexibility etc.