Administrative law in the application of the loopholes

(A loopholes and how extrajudicial
In the process of application of the Law, even through legal interpretation, the existing provisions may still not meet our regulatory requirements. There should be the current Law also has failed to regulate the situation norm, then so there will be loopholes. Legal loopholes exist is limited by the nature of human reason, legislators and social situation in the minds of ill-such as changes caused by objective reasons. At this time, for the realization of the purpose and value of Law, the Law applicable in respect of the need for legal loopholes.

Of course, not all legal matters have not been standardized are loopholes in the Law, only for the purpose of legislation should be standardized to achieve has not been standardized but matters would fall under the legal loopholes. For some legal matters may be based on their own value judgments that should not be adjusted so deliberately by silence, the kind of does not violate the legislative intent not provided, so not a legal loophole, and belong to the scope of outer space law.

(B loopholes and Administration by Law
Loopholes and legal interpretation of the difference is whether the language of articles may be within the scope of legal interpretation in the law of "the language of possible" within the law clear, specific, and therefore its not exceed the articles covered the scope of the law it has been super-added content is the law of "the possible text," which in a sense a "legislative" in nature. Of course, "the letter may be" the boundaries are not always very clear.

Complement the legal loopholes, such as analogy, Limit of purpose, but the requirements of implementing the principle of equality, not only to prevent arbitrary, and can promote the realization of justice, it is in the field of administrative law, in addition to administrative punishment by the legal doctrine of limited punishment allowed the loopholes, the general recognition of the legitimacy of the loopholes. but the loopholes in administrative law, and civil law areas are widely recognized compared to the principle should be limited by law to retain.

The principle of legal reservation is made only in the executive authorities under the legal authority to engage in acts of law does not specify if the executive can not be based on their understanding of the legislative purpose, its own laws and regulations, including the creation of a legal supplement. But the legal preservation and does not apply to all administrative areas. administrative proceedings are for the review of administrative action, if the Administration acts in an administrative law can not be added, the court in the administrative proceedings would be no possibility of legal supplement. Therefore, in the field of administrative penalty , the collection of non-state property and financial, tax and other basic system of administrative litigation in these areas should not be legal to add.

Second, the method of the loopholes
Administrative law proceedings because of the complementary approaches, "according to law" the principle of constraints, there are subtle differences compared with the civil law. Administrative Litigation Law, including complementary approaches should be applied by analogy, the purpose of expansion and contraction limited purpose.

Analogy refers to the law expressly provides that the legal provisions applicable to non-be provided directly, but the important characteristics of the legal provisions expressly provided in the same case type. Analogy is equally applicable legal principles and based on justice requirements, the same thing should be the same treatment.

Limit of purpose, is the language of the law should cover a particular case type, but should not bear with the case according to type of legislative purpose, the Department of the legislators for failing to be excluded, so for the purpose of implementing the legislation, but will The case-based exclusion of a legal supplement method.

The purpose of expansion, by contrast, refers to the intention of implementing the laws and regulations, the provisions of this Act is not covered by the case of defined type, including in the Act shall apply to the law within the scope of supplementary methods. Reposted elsewhere in the Research Papers Download http: / / www.hi138.com