Cognizance And Filling Up Of The Legal Loophole

There must be loopholes in the law.Legal loopholes are unavoidable,and the problem of legal loopholes has always been an important problem in judicial practice.The discussion of legal loopholes is endless.In recent years,China has paid more and more attention to legal loopholes and related theories.Starting from the general theory of legal loopholes,this paper analyzes the definition of legal loopholes by many scholars,including the characteristics of imperfection and violation of planning of legal loopholes,distinguishes legal loopholes from legal interpretations and boundaries of extra-legal space,and analyzes the scope of legal loopholes.Legal loopholes exist objectively and are the result of the interaction of subjectivity and objectivity.The controversy about the existence or not of legal loopholes is the focus of the theoretical field.By distinguishing the types of legal loopholes,we can better understand the existing problems of legal loopholes.How to identify legal loopholes and how to fill them is inevitable,and various methods to fill them are particularly important.But it is worth noting that for filling legal loopholes,judges can clearly choose corresponding filling methods by using typed thinking.Specifically,legal loopholes can be divided into two categories: legal loopholes within the legal system and legal loopholes outside the legal system.Legal loopholes in the legal system are based on analogy,purposeful expansion and purposeful narrowing and filling.Legal loopholes outside the legal system are based on legal principles,habits,etc.By distinguishing the types of legal loopholes and different ways to fill them,this paper sums up the laws of filling them in judicial practice.Judges can choose one filling method or multiple filling methods.There are not only rich case guidance systems,but also a large number of judicial interpretations to fill the gaps in China's judicial practice.The case guidance system is the reference for the judge to fill the loophole,and the judicial interpretation system is the basis for the judge to fill the loophole,and both of them complement each other.The filling of legal loopholes fully reflects the judge's discretion," the right corrupts people",and at the same time,the judge's discretion should be limited.Justice is the last line of defense to safeguard social fairness and justice.It is not enough for judges to master the technology of hole filling,and they must also fully demonstrate the judgment reasons of hole filling cases.Cases of judicial interpretation and guidance issued by the supreme people's court shall becarefully studied by local people's courts at all levels to sum up the judgment experience of similar cases.The study of legal loopholes can learn from foreign practical experience,and the theory of legal loopholes can also learn from the research of foreign scholars,but there are few summary research based on Chinese judicial practice,and there is also a lack of theories that can effectively solve the legal loopholes in today's China.Therefore,based on the types,identification and filling of legal loopholes,this paper summarizes the theory of gap filling applicable to China's judicial practice by combining the gap filling in China's judicial practice.