On Trial When Being Lack of Law——A Kind of Offbeat Thought on the Judicial Process

The viewpoint that could be complied, law should be complied has been emphasized since the beginning of the legal development in China. However, little attention has been paid to the problem of trial when being lack of which is a common phenomenon during the course of judicature. This article expatiates the meaning and the nature of the theory of trial when being lack of explains its certainty during the course of judicature, summarizes and discusses all of its theoretical modes. According to this article, it is unavoidable that laws have lacunae and defects, but judges cannot refuse to try just because of them, and the theory of trial when being lack of whose characteristics are judicial discretion and judicial experience, has a general application. Nevertheless, it does contradict with the principle of rule by law, and therefore it is necessary that trial when being lack of law should be limited and regulated.