| The guiding cases were discussed and approved by the Judicial Committee of the Supreme People’s Court.They were released after strict procedures,so it can be said that the guiding cases are justified and authoritative.Since the issuance of the guiding case,it has played an active role in unifying judicial standards,improving the quality and efficiency of trials,and maintaining judicial justice.Legal loophole is a problem that any country under the rule of law is unable to avoid.How to effectively fill legal loopholes becomes a key research issue in every country ruled by law.Studying the current judicial situation in China,we will find that the application of guiding cases to fill legal loopholes is an important judicial means to cope with contemporary development.The article first analyzes the present situation of guiding cases to fill legal loopholes.Nowadays,there are more and more cases of filling legal loopholes in guiding cases.There are a large number of guiding cases to fill legal rules in the fields of civil and commercial law,administrative law and criminal law.For example,in the field of civil law,the guiding case expands the scope of application of the settlement agreement,and analogy applies the time limit for implementation.In the field of administrative law,guiding cases expand or limit the scope of administrative litigation.In the field of criminal law,the guiding cases supplement the provisions on the penalty scale and so on.These phenomena all reflect that during the circumstance that the law does not clearly stipulate,the guiding cases can combine the case in time,innovate the rules of the rules,and make up for the deficiencies of the statute law,following the principle of the basic spirit of law such as fairness and justice.After reviewing these phenomena,it can found that the guiding cases still have problems in filling the legal loopholes:The internal system of the guiding case needs further optimization.The technique for judges to apply guiding cases to fill legal loopholes needs to be further improved.The rate of invocation in practice needs to be improved.The article also analyzes the legal methods of guiding cases to fill legal loopholes,such as analogy application methods,filling methods based on legal principles,and methodological filling methods.And it specifically and deeply analyzes how the guiding case uses the filling method to fill the legal loopholes.It mainly discusses the legality and rationality of legal loopholes from guiding cases,and fully discusses the significance of guiding cases to fill legal loopholes.It can effectively make up for the shortcomings of statute law,give full play to the guiding role of experience,and reasonably regulate the discretion of judges.At the end of the article,suggestions were made for guiding cases to fill legal loopholes.The first is the suggestion for the internal system of the guiding case itself.It can establish a guiding case database.The second is to advise the judges to fill the loophole technology.Finally,it is a proposal for the judicial referral process of the guiding case,and advocates that the judges should actively apply the guiding cases when encountering cases with legal loopholes. |
