Research On How Chinese Judges Fill Legal Loophole

Laws are finite and the world is capricious.Due to imperfect laws,legal loopholes objectively exist.Therefore,the judge is required to fill the loophole.However,on the one hand,China emphasises that judges must make decisions in accordance with the law,and on the other hand,cases that encounter legal loopholes in judicial practice occur from time to time,forming a contradiction between the principle that judges should abide by and the realistic need to fill legal loopholes,which leads to many difficulties for judges in filling legal loopholes.This article wants to analyse and solve these problems from both theoretical research and practical aspects.This article is mainly divided into four parts.First of all,this article has carried out the theoretical exploration of legal loophole filling,revealing the development and transformation of the legal loophole filling theory.From the adjactic law of conceptual law is enough to start from the circle,to the existence of legal loopholes in the law of interests,it finally evolved into a judge to fill the legal loophole.By analysing the historical development of the legal loophole filling theory,it can be found that the formation of the concept of legal loopholes is not achieved overnight.Whether it is to recognise the existence of loopholes in the law or the right of judges to fill the loopholes in the law,they have experienced a long ideological evolution and academic disputes.At the same time,in order to more accurately define the connotation of judges filling legal loopholes,this part also analyses the concept,premise and nature of judges filling legal loopholes,and emphasises the need for judges to fill legal loopholes from three aspects: improving judicial efficiency and effectively solving legal supply-side contradictions.Secondly,the second part of this article focusses on the case study method,and summarises the characteristics of Chinese judges in filling legal loopholes and the loophole filling methods used in the model of typical cases.Third,this part corresponds to the second part,which further discusses the four problems of Chinese judges in filling legal loopholes mentioned above in depth and systematically,and analyses the causes of the problems.Finally,this part is problem-oriented.In view of the third part of the article,it puts forward four suggestions: setting steps for judges to identify legal loopholes,clarifying the rules for judges to use loophole filling methods,improving the ability of judges to theoretically prove,and establishing an incentive and guarantee mechanism for judges to fill legal loopholes.Through the systematic research of the above four parts,we can analyse the existing problems of Chinese judges filling legal loopholes,further improve the research on the theory of legal loophole filling,At the same time,it provides methods and countermeasures for judges in China who are in practical difficulties,thereby contributing to the building of a socialist country ruled by law.