On The Analogy In The Judiciary Process

Analogy plays an important role which could remedy the legal holes. Analogy in the meaning of jurisprudence should not only obey the logic rules, bear the cognition and innovation of psychology, but also have some limits on which the judges apply it. Throughout the history of the development of the analogy, some conclusions should be deduced: its function of the judicatory law-making is under the restriction, and the merit to remedy of the legal holes should be valued. On the reasons why we need the help of the analogy, we may attribute to the demands of the principles of Justice, the existence of the legal holes, family resemblance of the cases, judicial discretion, the needs of practical reasoning. The structures of the analogy includes four aspects: the exertion occasions, the logic structures, the judge's value influence and the ascertainableness of the results. While the judges rely on the analogy, the two results should be realized: one is positive, in which the outcomes could be leading to the good directions of individual case justice, legal holes-remedying, conciliating the contradictions between stability and justice in the legal systems, the other may be negative for its probable answers and the jurisdiction arrogation. Under the judiciary process, the applying areas of the analogy differ from the areas of public law or private law, and the applying methods have the difficulties on how to obtain the similarities. Meanwhile, the judges should value the principle of law-preserving and legislative. The foundation of the analogy systems comprises these parts: the excellent judges, the arguments and publicity of the judgments, the institution of the case law, the establishment the legal community and etc.