论司法对法律漏洞的习惯救济——以“可以适用习惯”为基础

A study on using custom to fill legal loopholes in judicature: Based on the Article that "custom can be applied"

自古以来,人们就追求法律的逻辑自足,但作为人类智慧的产品,它却无法做到逻辑自足、规范无缝。对此,古今中外的不少法学家都予以揭示,并提出法律漏洞及其填补理论。法律漏洞可分为概念漏洞、规则漏洞和原则漏洞。救济法律漏洞的方式多种多样,其中之一,是在司法中适用习惯予以救济。运用习惯救济法律漏洞具有必然性,它取决于习惯的积淀、确信、权威以及可诉性等特征。司法中适用习惯救济法律漏洞的类型有当然补充、连带补充和造法补充,其基本手法是经由司法使习惯理性化、可诉化。

Since the ancient times, people have been pursuing the logical self-sufficiency of law. But as the product of human intelligence, law cannot achieve people’s expectations for self-sufficient logic and seamless norms. In this regard, the jurists of various countries in various times have revealed the existence of the legal loophole, and put forward the theory of filling it. Legal loopholes can be divided into concept loopholes, rule loopholes and principle loopholes. There are many ways to remedy legal loopholes. One of them is to apply the custom in the judicature. It is inevitable to fill legal loopholes by using habits, which is due to the accumulation, conviction, authority and litigability of customs. There are three ways to fill the legal loopholes in the judicial application: natural supplement, joint supplement and supplement of making law. The method is to rationalize and litigate the habit through judicature.