The Main Methods Of Legal Loophole Added

Due to the change of the social life and whether complicated, court trial in particularcases process, is not always able to find the corresponding standard to be processing. If thecase facts can get reasonable timely treatment for the stability of the social relations and notleast, we have to admit that, in the current effective method system there is a loophole. Thelegal existence of loopholes in the modern legal theory seems to have is the fact that does notdispute, because the law is formulated by the people, and people are not the all-effective god,is the person who is someone weakness (including the moral, the knowledge, the emotion andthe desire, etc.) which doomed human’s code of law is not perfect. They more or less alwayshas some gaps and inadequate.Now that the law floodgates is inevitable, then, based on the basic spirit of the law andjustice requirements, the judge will be the right and necessary to fill the floodgates law. To dothis, the judge must master various legal logic (such as essence reasoning, analogy, namelyapplicable analogy inference, quoted precedents, etc) intelligence means. Among them, theanalogy is the judge for the legal loophole supplement used by one of the main intelligencemeans.This paper, besides the preface, is divided into four parts.Preface parts: the question is that the law whether there are holes? When the lawfloodgates, the judge is through what way to add? Through the analysis of the problems ofpaper, then drew the main topic, which is the related theory and so on.The first part: legal loophole in the paper.The main part of the concept of legal loophole, types and reason of the in-depth analysisand discussion. First, what is the legal loophole? Mr. LiangHuiXing it defined as: in thecurrent effective method system exists on the influence law of function defects, and thedefects is contrary to the legislation of the intent or plan. Secondly, in the holes on theclassification problems, this paper mainly introduces the Germany and Japan scholars somepoints. At last, from philosophy, logic, legislative technique to analyze the causes of the legalloophole.The second part: the legal loophole cognizance and addedThis part of the main involve three contents: one is the determination of the legal loophole. Whether there are holes in the law to make appropriate that, the legal loophole is theprerequisite and foundation added.2it is the necessity of the legal loophole added. As long asthe legal existence of loopholes and not of the space method, so the judge is necessary to beadded, the law of necessity comes from their own purpose and system sex is onlyrequirements.3it is the nature of the legal loophole added. The law about the nature of thelegal loophole added, are roughly two theories, to continue to make law and try to say, but nomatter which a theory, all think legal loophole added is not a real legislative activities, its stillnot from judicial category. Four is added, the authority of the loopholes. Tong said that, thejudge added the vulnerability of authority from the following two power is that the lawsupplement right and the right to review.Part3: the main legal loophole added method, the analogy is applicablePart of this is this exposition center, also is the main part of the article. In this part, theauthor combined with case study for analogy for the basic principles, reasoning model andreasoning features of the in-depth analysis and discussion, and on the basis of expanded, and,of course, and purpose that case on conventional methods such as new deconstruction theory.Finally concluded that analogy is applicable legal loophole added the main method, it is thebase of the lies in "similar case should make similar treatment" of legal principles; Purpose toexpand, of course inference and so on is not a case of independent loopholes supplementarymethods, but only for a strong one of the analogy of the varieties, or it’s a kind of special form,under a form.Part four: the epiloguePart of this is the generalization of the thought of the full text center, and sums upspecific for:One, is the law is flawed and no loophole law of the kingdom of heaven "law", the worldwhich have to several times smell!Second, since the legal existence of loopholes, so the judge will have the right andnecessary to complement or improve the vulnerability.Three, the legal loophole added main methods are on applicable, other such as purposeexpansion, and, of course, is that because of the way either as a legal loophole in the legalcharacter of the supplement methodology questionable (such as purpose limit shrink andopposite inference) and is difficult to be certain; Or because of its can be attributable to theanalogy applicable, be it a deformation or a kind of special form, under a form (such as purpose expansion and of course inference) and no independent existence necessary.