Law Loopholes And Loopholes Filled

The law is the product of the rationality and will of the legislator.In reality,the legislator’s rationality is not unlimited.He cannot predict all the future,so the legislation must also be insufficient.When a judge who is in charge of a case faces a new type of case that is not covered by the existing regulations,he cannot find the corresponding law as the basis for handling the case.At this time,the state of the law is manifested as a loophole.At the same time,because the judge can not refuse the referee case,this will inevitably require the judge to fill the gap to a certain extent.In the Anglo-American legal system countries,the basis of the judges formed by the judges to fill the loopholes in the law can be cited as the main basis of the judgment in the future,thus forming the case law.The civil law system is relatively strict in the statute law countries.Although the judges have the power to fill the loopholes,However,power is subject to considerable restrictions to avoid the overbearing of judicial power over the legislative power.Our country does not recognize that judges have independent judicial personality in the judiciary,and judges have no legal loopholes to fill power.There are two ways to fill the loopholes in China,namely,the issuance of guiding cases and judicial interpretations,but this does not theoretically solve the problem of legal loopholes faced by judges in judicial decisions.The guiding cases used to fill the loopholes may also face the dilemma of being incomprehensible,and there are also contradictions in logic.Judicial interpretation is an abstract interpretation of the case,and it already has the attributes of legislation.Therefore,judicial interpretation,like the law,will face the predicament of having loopholes,that is,explaining loopholes.When a loophole is explained,how the judge will become a problem.Therefore,the legal position of the two should be put in place,and the courageous power to give judges to fill the loopholes is the way out.