Analysis Of "the Application Of Law By Analogy" From The Perspective Of Jurisprudence

In recent years, more and more domestic jurists have been engaged in the study of legal methodology. The rise of legal methodology in China is not only the result of the development of legal theory, but also the practice of judicial reform. "The application of law by analogy" - a way to fill the loopholes in the law - has also drawn the attention of some scholars. However, in general, domestic research on the "the application of law by analogy", which is transplanted from the Continent law system, is not thorough and systematic. Understanding of some issues is still in confusion. Here, the purpose of this paper is to have a deeper understanding of "the application of law by analogy" in the Chinese legal context from the perspective of jurisprudence.The existence of loopholes in the law is inevitable. The application of law by analogy is the main method to fill the obvious loopholes in the law. Its legal basis is the principle of equality, as a form of "principle of law ", that is, "the same or similar cases treated in the same way, different cases treated in the different way." The substance of the application of law by analogy is that the judge makes the decision based on the resemblance of facts of the case and the statutory elements of legal rules by citing the legal consequences of the legal rules. Although the application of law by analogy is the thinking process that the judge applies the law on the logic basis of analogical reasoning, but its operation is not purely logical, for the judgment of resemblance needs the study of the legal intention and the measure of the interest.Both "the application of law by analogy "and" legal reasoning by analogy" exist in our country. The latter is transplanted from the Anglo-American law system. There are both differences and sameness between the two, and the sameness created the conditions for the integration of the two in the Chinese legal context. Both the application of law by analogy and legal reasoning by analogy are the application of analogical reasoning in the science of law, especially in the judicial field. In the Chinese legal context, on the basis of the recognition that legal reasoning by analogy is a form of legal reasoning, "the application of law by analogy" can be defined as a method to fill the obvious loopholes in the law, the logical basis of which is legal reasoning by analogy, rather than analogical reasoning.In fact, what behind loopholes in the law is the contradiction between the stability and adaptability of law, and what behind filling loopholes in the law is the contradiction between strict rules and discretion. The contradiction between the stability and adaptability and the contradiction between strict rules and discretion are derived from the contradiction between the legal values - justice and order. The "analogy" that Chinese public and private law scholars have used is essentially the same. They both mean "the application of law by analogy". In theory, the application of law by analogy is the adaptation of law to the social changes and social development, is the embodiment of legal (individual) value of justice, and is significant in the field of public law and private law. It is undeniable that the differences between public law and private law do affect the implementation of the system of the application of law by analogy in the public and private areas. However, the influence does not lie in whether or not to implement the system, but rather how to implement the system. Due to the specificity of public law, especially criminal law, which is the mandatory, involving the deprivation of life or death of its citizens, the implementation of the system in the field of public law must be stricter. Of course, it is of great significance to emphasize the priority of the principle of crimes and punishment stipulated by law under the current judicial environment in China. However, it doesn't mean that we can neglect the social protection function of criminal law and the value of the social order. The system of "The application of law by analogy" had actually existed in our country, and may become the choice of the Criminal Code in the future once again when conditions are ripe.All above, "the application of law by analogy" is the application of analogical reasoning of logic in science of law, and particularly in the judicial field. "The application of law by analogy" is a technique for the realization of judicial justice. Now, China is in a period of social transition, a number of difficult cases and new cases continue to emerge. The application of law by analogy, as a way to fill the loopholes in the law, is of great practical significance on the judicial practice of contemporary China.