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Legal Loopholes Filling:Theoretical Source and Function Location

发布者:CAO Lei [发表时间]:2020-05-15 [来源]:济南大学学报(社会科学版)编辑部 [浏览次数]:

The concept law school and new natural law school believes that the legal system can be logically self-sufficient and there are no loopholes in the law. With the passage of time and the deepening of research, the free-law school, interests law school, analytical law school and so on demonstrate the inevitability of the existence of legal loopholes from different angles and the necessity of filling the loopholes by judges. When people realize the reality that legislation cannot be omnipotent, legal research has also completed the shift from legislative centralism to judicial centralism. As the last line of defense of the right remedy, the judiciary must try its best to fulfill the task of safeguarding the right, and not refuse to judge claiming that the law is not stipulated or there is a deficiency, which means that filling the loopholes in the law belongs to the proper meaning of the judicial power. In contrast to eliminating legal loopholes by means of legislation or amendment, judges can obtain the most rapid relief by filling legal loopholes within the scope of judicial authority. In this process, creative judicial work tested by practice can supply the most valuable raw materials for future legislation.


【原文链接】曹磊:《法律漏洞填补:理论探源与功能定位》发表于《济南大学学报》(社会科学版)2020年第3期