Research On The Application Of Legal Analogy In Civil Law

The process of a judge trying a specific case in judicial practice is an activity of finding the law,but it is not always able to find applicable legal rules to deal with it,so that the judge loses the corresponding legal rules as the basis for judgment.Therefore,there may be a legal loophole in the current effective legal system.Starting from admitting the inevitability of legal loopholes,analogy application as a relatively mature loophole filling method has been widely used by judges in the practice of civil justice in our country.However,there are few current researches on the application of analogy based on the practice of civil judicial practice,and most of them stay at the theoretical level,leading to the theory and practice of this method have their own ways.In order to solve the practical problems in the practice of civil justice,we should first follow the idea of Canaris,adopt a more pragmatic study in sections,and clearly divide the problem of civil law loopholes into two stages: the determination of loopholes and the filling of loopholes.The The determination of civil law loophole is the first step to deal with the problem of loophole,is the premise of loophole filling,and is also the effective premise of analogy application by judges.In our civil judicial practice,due to the lack of specific methods to determine the loopholes of civil law,a series of problems have been caused by the identification of loopholes.There are a lot of phenomena of ignoring the existence of loopholes,confusing the loopholes with non-loopholes,and confusing the loopholes with that loopholes.In order to avoid arbitrarily identifying loopholes,judges are required to pay strict attention to distinguish loopholes from other situations that do not belong to loopholes.The process of determining loopholes in civil law should be standardized,which is not only a process of typing analysis of legal norms and case facts,but also a process of evaluating the value of the facts and norms of typing analysis.Typed analysis method and value evaluation method are two basic methods to identify the vulnerability,which requires judges to identify the existence of the vulnerability at the level of fact and value evaluation.As far as the typing analysis is concerned,we should make a one-to-one correspondence between the typed facts and the norms to see whether the typed facts can find the corresponding norms in the law.As far as the value evaluation method is concerned,the typed case facts and legal norms should be evaluated to find the conflict of value judgment.Since evaluation factors play a greater role in value evaluation method,it is more difficult to identify loopholes than the method of typing analysis.The filling of loopholes is a key step after the determination of loopholes,and analogy is one of the important ways for judges to fill the loopholes of civil law with judicial techniques.In-depth understanding of the real application process of this judicial method in the practice of civil justice,because the judge’s technical application is not standardized,leading to the emergence of a considerable number of wrong analogy cases,corresponding to the lack of judgment reasoning.It should be emphasized that the core problem in analogical procedures is similarity determination.Similarity problem is not a logical inference but a structure of comparison,which is not affected by a single factor.At present,due to the lack of fine and operable judgment methods,the phenomenon of similarity judgment anomy is more serious.At this point,it is necessary to standardize the method of judges in the process of similarity determination,follow the logic of the determination of civil law loopholes,and construct the possible path of similarity determination from two different demonstration levels: the first level is the level of logical structure,which needs to determine the similarity between the fact elements and the legal relationship;The second level is the level of value evaluation which needs to determine the similarity of evaluation on the basis of the consistency of value judgment and benefit measurement.The completion of two levels of activity can confirm the complete similarity.So the application of analogy should take into account both the form and the essence of the two aspects,only to meet the formal analogy and the essence of the requirements of analogy is reasonable and complete.In addition,judges should also correctly grasp the limits of analogy application from the perspective of form and substance,and pay attention to distinguish the situations that cannot be applied by analogy in practice,so as to ensure the accuracy of judicial judgment.