| The closing of legal loopholes is a traditional topic of legal methodology as well as a common problem in legislation and judicial practice. Judicial argumentation on the closing of legal loopholes includes two parts, i.e., the identification argumentation and the closing argumentation. According to the two constitutive characteristics of legal loopholes, the identification argumentation is composed of the rule-deficiency argumentation and the soundness argumentation. The former is aimed at proving the lack of applicable legal rules while the latter is aimed at proving that the case should be regulated by legal rules. For these two argumentations, argumentation scheme α and argumentation scheme β can be put forward respectively. Once legal loopholes are identified according to the identification argumentation, the goal of the argumentation changes into the closing of the loopholes. Logically speaking, there are two judicial approaches to the close legal loopholes, that is, rule introduction (closing with other rules) and rule creation (closing without any rule). Correspondingly, the closing argumentation can be divided into two types, i.e., introduction argumentation and creation argumentation, and two argumentation schemes, namely argumentation scheme I and argumentation scheme II, and their subsidiary argumentation schemes that can be proposed respectively. These two argumentation schemes are in a competitive relationship with each other in the closing legal loopholes, and ultimately a principle of closing of argumentation, namely principle P, needs to be established to avoid the difficulty of choice. |
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