类推在弥补法律漏洞中的适用

在刑法领域,鉴于类推有违罪刑法定原则,因此是严格禁止适用类推的。但在民事司法领域,允许适用类推以弥补法律漏洞。法律漏洞是一个不可避免的客观事实。当司法活动中遇到法律漏洞而不能依据明确的法律规范予以裁判时,类推适用是弥补法律漏洞的一个有效的法律方法。

The Application of Analogy in Legal Loopholes

In the Chinese criminal law field,we put analogy application under taboo as it violates the principle of a legally prescribed punishment for a specified crime.While in civil and justice field,analogy application is allowed to remedy the legal loopholes.It is inevitable that the legal loopholes exist in the course of executing the law,and analogy application is an effective legal method to remedy the legal loopholes when the judges barge up against them and can't give sentence on the criminal judicially,but have to punish the criminal for his crime.