Analysis On The Method, Path And Practice Of Filling Legal Loopholes

In a society ruled by law,generally speaking,judicial personnel can find applicable legal rules when handling cases in judicial practice,but in some new,complex,and difficult cases,judicial personnel may not be able to find applicable legal rules.This is the legal loophole discussed in this article.There are many reasons for the legal loopholes,such as the limitation of legislative cognition and legislative technology,the unity of legal expression means,and the volatility of the social environment.The purpose of studying legal loopholes is to fill them.Therefore,this article discusses the methods,paths and practices of filling legal loopholes,sorts out the existing research results,summarizes the existing research deficiencies and differences,and further analyzes the deficiencies and differences.,With a view to providing a more diverse perspective,a newer thinking path,and a more practical method of operation to fill the legal loopholes.The existing research results on filling legal loopholes mainly include three dimensions: method,path and practice.Methods of filling legal loopholes include application by analogy,purposeful expansion,purposeful restriction,applicable legal principles and applicable customary law.The research results on the methods of filling legal loopholes are rich,but the shortcomings are the lack of systematic review of the logical structure of methods of filling legal loopholes,and the inadequate discrimination between the methods of filling legal loopholes and the methods of filling legal loopholes and other legal methods.The path to fill the legal loopholes includes judicial interpretation and the establishment of a case guidance system.The position and role of judicial interpretation in filling the legal loopholes need to be further clarified.The lack of research on the case guidance system is that the selection system for guiding cases is not perfect and applicable The rules for guiding cases to fill legal gaps are not clear enough.The practice of filling legal loopholes is the specific operation process in judicial practice for filling legal loopholes.Problems in the practice of filling legal loopholes include disputes over the subject of filling legal loopholes.It is necessary to further discuss the theory of judges in the process of filling legal loopholes.It is necessary to clearly limit the exercise of judges’ discretion and formulate restrictions on judges’ discretion.Power system.This article proposes the following countermeasures against the deficiencies of the existing research results: firstly reorganize the logical structure of the method of filling legal loopholes,and further analyze the methods of filling the legal loopholes,the methods of filling the legal loopholes and other legal methods.Secondly,review the judicial interpretation from the perspective of filling legal loopholes,limit the application of judicial interpretation to fill legal loopholes,and attach importance to the role of referee interpretation in filling legal loopholes.Focus on digging the function of guiding cases to fill legal loopholes,improve the selection system of guiding cases,and explore the rules for using guiding cases to fill legal loopholes.Finally,it discusses the rationality of the judge’s filling of legal loopholes,and refutes the question of the subjective status of the judge to fill the legal loopholes.Emphasizes that judges need to conduct full argumentation when applying the method of filling legal loopholes,clarify the level of judges’ argumentation in filling legal loopholes,and strengthen judges’ learning and communication of excellent judgment documents.Reiterate the necessity of restricting the discretion of judges,and formulate a system to limit the discretion of judges.In short,legal loopholes exist along with the existence of laws.Legal loopholes cannot be completely eliminated and the significance of studying legal loopholes cannot be denied,because the process of filling legal loopholes is the process of continuous growth,repair and improvement of the existing legal system.