Legal Loopholes And Filled

Legal loophole is a problem that any country under the rule of law is unable toavoid in theory and in practice. In recent years, the Chinese mainland and Taiwanscholars study on the issue also has made great achievements, such as Liang Huixing\"civil law hermeneutics\"; Huang Maorong\"method of law and modern civil law\";ShuGuoYing\"The research on the methodology of law\"; Yang Renshou\"methodology of law\"; Wang liming\"methodology of law\" and so on. Most ofthese studies focus on the analysis of the concept of legal loophole and fill method isdiscussed, and has initially formed a set of complete theoretical system.This paper consists of introduction, main body of four chapters and the epilogue.The first chapter introduction introduces the background of writing, the literaturereview and the article structure were reviewed. The second chapter is an overview oflegal loophole some related problems. First introduced the theory about legal battleover the presence of loopholes, and on the basis of enacted law inevitably flawedconclusions; Secondly discusses the concept of legal loophole, the loopholes is refersto the set method for dispute case that should be standard but no specifications for avariety of reasons, unable to find appropriate deal with disputes of the rule of law.Once again introduces the different types of legal loophole, and on the basis of thelegal loophole to define the legal loophole is divided into obvious loopholes andhidden loophole, in accordance with legislators or the public will and the literalmeaning of the law cannot cover is obvious loophole, if the literal meaning has drawnin accordance with the law, but in fact should not be in accordance with the legislativeintent, or the social public will cover hidden holes; The last is the cognizance of legalloophole. The judge ruled that the legal loophole is mainly through the transformationof facts and the judge to find two important thought processes. The third chapter is thespecific case analysis the justice practice in our country with different holes should beused different ways to fill. Specifically, application, suitable habits or common law, using the method of legal theory, purposeful expansion can be used to fill the loophole,for hidden loopholes, only through purposeful narrowed the methods to fill. In thefourth chapter the author of guiding cases and study the correlation of legal loopholesupplement, mainly discusses the related concepts of case guidance system, using theguiding case fill the legal loophole in the significance, feasibility, and constructed theconcrete implementation path. Expectations through these discussions, the writer cancause judicial and theoretical guiding case attaches great importance to the role oflegal loophole in the fill, and make it real for contributions to fill the legal loopholesin practice. The last barrier of justice is to maintain social justice, the purpose of thejudicial activities is to adjust and solve the social life of all kinds of interests conflictsand disputes, maintaining social order. In judicial practice, when there is a clear legalrules to apply when the judge judges shall, in accordance with the rules of law case, ofcourse. But when there is no clear legal rules can be applied, a legal loophole, thejudge should be how to solve? Under the current legal system, how to exert thefunction of the judge in the hole to fill? To this, the author in the paper fifth chapterputs forward some opinions and Suggestions, including the trial practice of judgesindependence principle, the specifications at the discretion of the judge, the reform ofjudicial documents, improve the judge’s ability to fill the legal loopholes, etc. Chapter6conclusion is mainly to summarize the whole article.The innovation of this article is the fourth chapter case guidance system and fillsthe legal loopholes. Issue of legal loophole in the written law countries cannot beignored, the case can be used to fill the legal loopholes also already became theconsensus of scholars. But our country’s judicial practice, the relevance of caseguidance system and fill the legal loopholes didn’t get enough attention. Under thisbackground, this paper made the correlation discussion, is to want to be able to causethe resonance of the theory and practice, the case guidance system can really play therole of its fill the legal loopholes.