Dissertation > Political, legal > Legal > Theory of law (Law)

The Study on the Relationship between Loophole-filling and Civil Norms

Author JiaHuanYin
Tutor XieZuo
School Shandong University
Course Legal Theory
Keywords loophole-filling civil norms harmonious justice construction of norms
Type PhD thesis
Year 2008
Downloads 288
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By the multiple methods of sociology of law-normative and positive analysis, this paper analyzes the relationship between the loophole-filling and civil norms on the basis of harmonious justice and the concrete loophole-filling methods.This research lies in trending towards the sociology of law analysis for the loophole-filling and the normative-positive analysis for folk law, and makes the two really related together. In the bidirectional interchangeable framework, the normative-positive analysis is situated in the leading position, even as the sociology of law analysis for the process of loophole-filling and concrete methods are concerned, the sociology of law analysis is in the normative-positive framework. The basic structure of this paper is divided into three sections: introduction, overview and concrete analysis. This structure is constructed on the basis of essence of the loophole-filling and its concrete methods.The nature of loophole-filling is essentially the process of constructing concrete norms. Legal loophole is the state that legal social function as it is does not severely harmonize with legal normative function in terms of functionalism. Folk law that has the double attributes of social self-standardization and legal socialization is a hermeneutical concept.This paper mainly studies the three important aspects of the relationship between the loophole-filling and civil norms: firstly, it demonstrates the rationality of civil norms as the factor of loophole-filling on the basis of definition of the valid Legal loophole and factual valuable orientations of the loophole-filling; secondly, it analyzed the framework of the relationship, which should be analyzed in the multiple framework, including the external social one and the inner normative one, between the loophole-filling and civil norms, lastly, all kinds of concrete legal methods have the characteristics of folk laws of the different directions and change with the flowage of legal methods for the differences between nations and cultures.The above-mentioned three aspects, especially the second and third one jointly constitute the theoretical principle of the paper. This paper (from 4-6) analyzes the fundamental theories and the civil characteristics of analogical reasoning, restrictive /extensive interpretation of purposiveness and legal fiction in details, simultaneously, it analyzes the multiple framework of compensating for legal loopholes with civil norms in the process of all kinds of concrete methods of the loophole-filling by examples, more importantly, under the multiple framework’s guidance, it tries its best to construct the process of compensating for legal loopholes with civil norms in the process of all kinds of concrete methods of the loophole -filling. The characteristics of concrete loophole-filling legal methods of folk law are demonstrated in the tui-lei methods in the section of chapter four.In accordance with the demand of harmonious justice in our age, this paper is a systematical, comprehensive and preliminary endeavor for the relationship not only between methods of the loophole-filling and civil norms but also between legal methods and civil norms. We hope the endeavor will able to start a way out for the research of the relationship between methods and norms, and will be beneficial to our harmonious justice practice.

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