Research On The Recognition Of Legal Loopholes

In the judicial practice,due to the limitations of legislators and social development,that are not stipulated by law,which need to be protected by law,as well as the situation that the legal rules are highly vague and the results of their application seriously violate the legal purpose.That is to say,the law is always unsatisfactory and there are loopholes.Legal loopholes have existed from the past until now,and there are different situations.In order to solve the these situations in judicial practice and avoid the judge's misidentification of legal loopholes,it is necessary to study the legal loophole identification.The purpose of legal loophole research is to provide theoretical guidance for judicial practice.It is a very meaningful part of judicial practice.The value of legal loophole identification is to break the hysteresis and inconsistency.Its ultimate goal is to achieve the value objectives of law,social justice,and the integrity of the legal system.Legal loopholes are an unsatisfactory state of the legal system.From the perspective of practicality and judicial practice,it is divided into blank legal loopholes,highly vague legal loopholes,and unsuitable legal loopholes.There are loopholes in the law,on the one hand,due to the limitations of legislators' ability,due to the limited ability of prediction,the limited level of knowledge and the influence of language,legislators fail to fully foresee or effectively adjust the existing legal relationship.On the other hand,due to the influence of social development,the society has emerged in areas or new situations that the law is not able to do,and the existing laws cannot adapt to the development of new society and have a lag.Blank legal loopholes refer to the lack of specific legal norms for adjusting specific social relations in existing laws.The boundaries between blank legal loopholes and extralegal space mainly lies in whether matters not regulated by law belong to legal adjustment matters,specifically,whether negative indeterminacy is the only factor,and whether extraneous parts of the law are included.The gaps between the blank legal loophole and legal rules that have some divergences are whether laws have provisions and whether they can be eliminated.Legal rules that have some divergences based on the provisions of the law,differences can be eliminated through narrow legal interpretation.The boundaries between the blank legal loopholes and the legal rules that can be expanded to explain are mainly embodied in form,focus and substance.Legal loopholes of highly ambiguous type produced by the highly fuzzy and abstract legal norms that adjust the specific social relations.Under the background of widespread ambiguity,language is ambiguous,and legal language is inevitably indistinct,unclear and inaccurate.When ambiguity reaches a certain level,it constitutes a legal loophole,it mainly includes two types: general terms and uncertain concept.The boundaries between highly ambiguous legal loopholes and fuzzy legal rules are reflected in two aspects.First,the "ambiguity" is different,the interpretation limits are different,and the second is that the scope of the content is different.The highly ambiguous legal loopholes should be protected by law within the scope of application of the law.The fuzzy legal rules refer to matters within the law,and its fuzziness has boundary.Legal loopholes of inconformity with purpose type,refer to the situation that after the existing laws adjusting the specific social relations,it is seriously inconsistent with the legal purpose.Serious disagreement with the legislative purpose,that is,the extent to which the rule does not meet the legislative purpose,cannot be resolved through narrow legal interpretation methods,but through purposeful narrowed the methods to fill.There is a fundamental difference between the limitation explanation and purposeful limitation explanation.Specifically,the specific scope of the two is different.Limitation explanation belongs to narrow legal interpretation.It is a narrowing of the meaning of the article that does not harm the core.Purposive limiting is to eliminate the types of serious non-conforming in legal rules,which belongs to loophole filling.In addition,the two are also different in interpretation limits,applicable sequence,judge's right of discretion.