Analysis Of The Criteria For Identifying Legal Loopholes And Their Reasons

Although legal loophole is a common problem in judicial practice for various countries,the theorists and practitioners focus on how to fill the legal loophole in the study of legal loophole.The existing research on how to identify legal loopholes and their criteria for determining them is very few,and in judicial practice,the phenomenon of confusing legal loopholes and non-legal loopholes,derailing this legal loophole,and their legal loopholes exists in large numbers.Therefore,the identification of legal loopholes is an indispensable and important part of filling legal loopholes.The study of this paper will be extended to this field,which can provide theoretical support for the identification of legal loopholes.Besides the introduction and conclusion,this article is divided into four parts.In the first part,the author introduces the definition of legal loopholes by scholars at home and abroad,and integrates the merits of various definitions from the perspective of judicial practice.The legal loophole is defined as "in terms of a certain fact of life,according to the spirit and intrinsic purpose of the country's law-making order,we expect that the state's law-making law will provide for it without providing for it or providing for it is not reasonable";Secondly,the author starts from the relationship between the concept and the things expressed by the concept,and acknowledges the fact that legal loopholes must exist;Furthermore,the author demonstrates the necessity of identifying legal loopholes from the perspective of comparative law.Finally,the author collates the classification criteria of legal loopholes in traditional theory and analyzes its shortcoming.The second part is from the fact and normative level to analyz the legal loophole identification.The author proves the position of legal loopholes in legal reasoning by using the model of reason for the application of the rules,and analyzes the legal loopholes from the fact level and the normative level respectively.Though,We can draw the conclusion that the formation of fact reasoning is the first step to identify the legal loopholes.The appearance of the legal loopholes is the result of the non-conformity between the facts of the case and the legal norms.However,the root of the legal loopholes lies in the external evidence of the legal norms.The third part is to analyze whether a certain issue is a legal loophole.The author distinguish and prove the legal loophole from the extra-legal space,the legal exception,the legal interpretation and the negative interpretation.The fourth part is based on the confirmation that a certain issue is a legal loophole.For the specific typeof legal loophole,after the author draws on and integrates the traditional classification criteria for legal loopholes,according to the level of legal loopholes,the legal loopholes are divided into three categories and six sub-categories,They are broken down into partial fragmentary loopholes and hidden loopholes,regular loopholes into extensible loopholes and transitional loopholes,and system loopholes into collision loopholes and unfounded system violations.The specific criteria for identifying each type of legal loophole are put forward.In addition,the author makes a brief analysis of the prevention of the abuse and misuse of legal loopholes.The abuse of legal loopholes mainly shows the problem that is not a legal loophole is treated as a legal loophole.The misuse of legal loopholes is to treat this legal loophole as a legal loophole.This will have a serious impact on the fairness of judicial decisions.In order to prevent the occurrence of this situation,in addition to the need to strictly follow the standards of this article to identify legal loopholes,the reasoning of the referee documents is also extremely necessary.All in all,we must recognize the necessity and importance of identifying legal loopholes in the application of justice.On the other hand,we must have a complete and clear understanding of the criteria for identifying legal loopholes.Only in this way can we facilitate the filling of legal loopholes.Then make due contribution to the judicial justice.