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CAO Lei:Judicial Cognizance of Legal Loopholes

发布者:学报编辑部 [发表时间]:2021-05-15 [来源]:济南大学学报(社会科学版)编辑部 [浏览次数]:

    Empirical research shows that legal loopholes can be vague because of their liquidity. In some difficult cases, whether there are legal loopholes is controversial. The accuracy of the identification and determination of legal loopholes is directly related to the correctness of the verdict, which must be taken seriously. To solve this problemsumming up and setting up the procedures and standards for legal loophole identification, and realizing uniform loophole evaluation through procedural rationality have become the practical path. Under normal circumstances, if interests of the plaintiff claimed in a pending case should be given by the law but in fact are not given or not properly protected, and at the same time legal interpretation is still unable to mend such faults of the law or regulation through conflict rules doesn’t work, it should be considered that there are loopholes in the law. The legal loophole of rule paradox is special, because the law protects pending interests, and there is no loophole in its form. It is just that the application of the rule in a pending case leads to an unjust conclusion, which means the rule may lose its value of being observed. In such cases, we should determine whether the conclusion violates justice to an "intolerable degree" according to the Radbruch formula, so as to judge whether there is a legal loophole of rule paradox.

the resettlement of retired soldiers in New China, and it is an important attempt to explore and build an institutional system that adapts to China's national conditions and make it increasingly scientific, standardized and procedural.


【原文链接】曹磊:《法律漏洞的司法识别》发表于《济南大学学报》(社会科学版)2021年第3期