| 释义 |
- See also
- References
- Bibliography
- References
{{AFC submission|d|v|u=Looky99|ns=118|decliner=HitroMilanese|declinets=20181101130842|ts=20180820150324}} {{AFC comment|1=This is basically an essay, with reference only to a single book. There would need to be evidence that these terms are commonly usedthisway,and are referred to collectively as "gaps in law" by other writers. DGG (talk) 06:58, 24 January 2019 (UTC)}}{{AFC comment|1=Additional citations in reliable sources are required. Hitro talk 13:08, 1 November 2018 (UTC)}}
Gap in law - other names: legal gap, lacuna (plurar: lacunae or lacunas) and loophole. Gaps in law are of a different sort. There are distinguished: - extra legem gap (gap outside the law), called also an uprovided case or casus omissus – arises when a specific case or legal issue is not explicitly dealt with in written law; this the more common (default) kind of a gap in law.
- intra legem gap (gap within the law), called also an interpretational gap or indeterminacy gap – occurs when there is a statutory provision which regulates the case at hand, but this provision is vague or equivocal
- contra legem gap (gap against or contrary to the law) – comes into being when there is a statutory provision which applies to the case at hand but this provision leads in this case to an unwanted outcome
- technical gap, called also an intrinsic gag, constructional gap, gap of passivity, vertical gap or sui generis gap – consists in the lack of a larger part of statutory law which according to law should be enacted (issued), especially such that disenable passing of a judicial or administrative decision or working of the institution which are envisaged by the law.
- gap of conflict or collision, called also a praxeological (teleological) gap, logical gap or gap by contradiction – takes place when two or more statutory provisions contradict each other
In common law (case law) a counterpart of a legal gap is the so-called case of first impression. Gaps are filled by recourse to analogy (legis and iuris), reasoning from a legal principle(s), an argument a fortiori, an argument a contrario, other kinds of inferences from norms or some other less constrained judicial considerations.[1] See also References1. ^See Maciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7), pp. 17-22, 24-27.
BibliographyMaciej Koszowski, The Scope of Application of Analogical Reasoning in Statutory Law. American International Journal of Contemporary Research no. 1/2017 (v. 7): 16-34. References {{reflist}} |