论大前提缺失的司法推理
发布时间：2019-06-18 11:20
【摘要】： 法律推理作为一种基本的方法在法学家的理论研究和法律工作者的司法实践中一直被广泛地运用。广义上的法律推理,渗透于立法、执法、司法以及各种法律实践和认识活动的全过程。司法推理属于法律推理中的一种,从狭义上讲,司法推理特指法官判案时所运用的推理,是法官在适用法律的过程中,根据逻辑推理的规则,结合“以事实为根据,以法律为准绳”的原则,运用科学的方法和规则为所得结论提供正当理由的一种逻辑思维活动。 由于社会生活的复杂多变以及制定法的局限,法官并非总能找到相应的法律规范作为案件的裁判依据,因而在司法推理中势必将遭遇大前提缺失的情形。司法推理大前提的构建,其实质就是找法的过程,找法的结果不外乎三种:一是有明确的法律;二是有模糊的法律;三是无任何法律规定。第三种情形,即通常所谓的大前提缺失。大前提缺失的司法推理中,法官的价值判断不可或缺,而类比推理则是其典型形式。 本文除引言外,共分为三部分。 引言部分:提出问题,即当司法推理缺失大前提时,法官究竟应如何裁决?通过援引“安乐死”的案例来表征大前提缺失的情形,从而引出论题并明确本文的讨论范围。 第一部分:司法推理概述 首先,论述法律推理与司法推理的关系,一方面,法律推理是司法推理的上位概念,司法推理属于法律推理中的一种;另一方面,二者在适用范围等方面存在不同;其次,阐述司法推理作为一种独立的推理形式具有的特征:(1)司法推理是法律适用的推理;(2)司法推理是一种实践性推理,具有很强的实践性;(3)司法推理是一种寻求判决理由正当性与合理性的证立活动。再次,分析司法推理在司法裁判中的作用,司法推理有利于作出令人信服的判决,有利于发挥司法裁判的作用。最后,讨论司法裁判模式与司法推理的关系,并强调司法裁判过程就是主要运用司法推理的过程。 第二部分:司法推理大前提缺失的表现形式及成因 这部分从司法推理的大前提入手,分析司法推理大前提缺失的表现形式及其成因。本文所述司法推理大前提缺失是指法律存在漏洞的情形。法律漏洞源于法律的概念和区分,由于对法律可以依照不同标准作不同划分,与此相应,对法律漏洞也可作不同的分类。本文主要分析了几种常见的法律漏洞:自始漏洞与嗣后漏洞、部分漏洞与全部漏洞、真漏洞与假漏洞。法律漏存在的原因涉及哲学、逻辑学、立法技术等诸方面。 第三部分:大前提缺失时司法推理的运用 这部分既是本文的核心内容,也是本文的落脚点,主要讨论大前提缺失时法官的价值判断和类比推理在司法推理中的运用。 大前提缺失时,法官往往要运用法学原理,充分考虑到社会发展的要求,对所有支持和反对的主张都进行充分、认真的衡量,作出妥当的选择。价值判断在此过程中起着非常重要的作用,离开了价值判断,大前提将无法构建,司法推理也将无法进行。 类比推理是大前提缺失时的典型推理形式,其理论基础是“类似案件类似处理”。类比推理在审判实务中主要有两种形式,即类推适用和判例类推。类推适用是根据案件相似而适用同一法律规范而进行的推理,判例类推则是根据案件相似而适用以前判例所适用的原则或者方法进行推理,或者是作出与先前判例相同的判决,它包括遵循先例式判例类推和借鉴先例式判例类推。
[Abstract]:As a basic method, legal reasoning has been widely used in the legal research of jurists and the judicial practice of legal workers. The legal reasoning in the broad sense is permeated into the whole process of legislation, law enforcement, justice and various legal practice and awareness activities. The judicial reasoning is one of the legal reasoning, in the narrow sense, the judicial reasoning refers to the reasoning used in the judgment of the judge, which is the principle of the judge in the course of the applicable law, according to the rules of logical reasoning and the principle of the "on the basis of the fact that the law is the yardstick". The use of scientific methods and rules provides a good cause for the conclusion of the logical thinking. Because of the complex and changeable social life and the limitation of the development law, the judge is not always able to find the corresponding legal norm as the judge basis of the case, so it is inevitable that there will be a large loss in the judicial reasoning The essence of the method is to find the law, the other is the law of the fuzzy, and the third is no law. The rule of law. A third situation, usually so-called big front. The judgment of the value of the judge is indispensable, and the analogy-based reasoning is the book. Form. In addition to the introduction It is divided into three parts. The introduction part: the question is put forward, that is, it is the premise of the lack of judicial reasoning How should the judge decide? By invoking the case of the "Euthanasia" to characterize the situation of the large-premise deficiency, the lead-out theory The scope of the discussion is to be defined and made clear The first part: the summary of the judicial reasoning first, the relation between the legal reasoning and the judicial reasoning, on the one hand, the legal reasoning is the upper concept of the judicial reasoning, and the judicial reasoning is one of the legal reasoning; the other party On the other hand, judicial reasoning is a kind of independent reasoning form. (1) Judicial reasoning is the reason for the application of the law; and (2) the administration of justice. The reasoning is a practical reasoning, which has strong practicality; and (3) the judicial reasoning is one. Re-analysis of the role of judicial reasoning in the administration of justice, and judicial reasoning is in favor of making order In the end, the author discusses the relationship between the judicial decision model and the judicial reasoning, and emphasizes the relationship between the judicial decision model and the judicial reasoning. The process of judicial decision is the process of using judicial reasoning. The second part: the form and the cause of the lack of the large-premise of the judicial reasoning from the judicial reasoning On the premise of the great premise, the paper analyzes the expression of the deficiency of the premise of judicial reasoning. The lack of judicial reasoning in this paper means the existence of a loophole in the law. The legal loophole is derived from the concept and the distinction of the law. In this paper, several common legal loopholes are mainly analyzed in this paper. Self-originating vulnerability and subsequent vulnerability, partial vulnerability and full vulnerability, true vulnerability and false leakage The reason for the existence of the law is philosophy and logic. The third part: The application of judicial reasoning in the absence of large-premise is not only the core of this paper, but also the article. This paper mainly discusses the judgment of the value of the judge and the application of the analogy-based reasoning in the judicial reasoning. To the request of social development, all the support and the opposition should be fully and carefully measured, and a proper choice is made. The value is judged here. It plays a very important role in the process, and leaves the value judgment, and the premise will not be constructed, and the judicial reasoning will not be carried out. The analogy reasoning is the typical reasoning form in the case of a large premise, and its theoretical foundation 鏄，
本文编号：2501446
[Abstract]:As a basic method, legal reasoning has been widely used in the legal research of jurists and the judicial practice of legal workers. The legal reasoning in the broad sense is permeated into the whole process of legislation, law enforcement, justice and various legal practice and awareness activities. The judicial reasoning is one of the legal reasoning, in the narrow sense, the judicial reasoning refers to the reasoning used in the judgment of the judge, which is the principle of the judge in the course of the applicable law, according to the rules of logical reasoning and the principle of the "on the basis of the fact that the law is the yardstick". The use of scientific methods and rules provides a good cause for the conclusion of the logical thinking. Because of the complex and changeable social life and the limitation of the development law, the judge is not always able to find the corresponding legal norm as the judge basis of the case, so it is inevitable that there will be a large loss in the judicial reasoning The essence of the method is to find the law, the other is the law of the fuzzy, and the third is no law. The rule of law. A third situation, usually so-called big front. The judgment of the value of the judge is indispensable, and the analogy-based reasoning is the book. Form. In addition to the introduction It is divided into three parts. The introduction part: the question is put forward, that is, it is the premise of the lack of judicial reasoning How should the judge decide? By invoking the case of the "Euthanasia" to characterize the situation of the large-premise deficiency, the lead-out theory The scope of the discussion is to be defined and made clear The first part: the summary of the judicial reasoning first, the relation between the legal reasoning and the judicial reasoning, on the one hand, the legal reasoning is the upper concept of the judicial reasoning, and the judicial reasoning is one of the legal reasoning; the other party On the other hand, judicial reasoning is a kind of independent reasoning form. (1) Judicial reasoning is the reason for the application of the law; and (2) the administration of justice. The reasoning is a practical reasoning, which has strong practicality; and (3) the judicial reasoning is one. Re-analysis of the role of judicial reasoning in the administration of justice, and judicial reasoning is in favor of making order In the end, the author discusses the relationship between the judicial decision model and the judicial reasoning, and emphasizes the relationship between the judicial decision model and the judicial reasoning. The process of judicial decision is the process of using judicial reasoning. The second part: the form and the cause of the lack of the large-premise of the judicial reasoning from the judicial reasoning On the premise of the great premise, the paper analyzes the expression of the deficiency of the premise of judicial reasoning. The lack of judicial reasoning in this paper means the existence of a loophole in the law. The legal loophole is derived from the concept and the distinction of the law. In this paper, several common legal loopholes are mainly analyzed in this paper. Self-originating vulnerability and subsequent vulnerability, partial vulnerability and full vulnerability, true vulnerability and false leakage The reason for the existence of the law is philosophy and logic. The third part: The application of judicial reasoning in the absence of large-premise is not only the core of this paper, but also the article. This paper mainly discusses the judgment of the value of the judge and the application of the analogy-based reasoning in the judicial reasoning. To the request of social development, all the support and the opposition should be fully and carefully measured, and a proper choice is made. The value is judged here. It plays a very important role in the process, and leaves the value judgment, and the premise will not be constructed, and the judicial reasoning will not be carried out. The analogy reasoning is the typical reasoning form in the case of a large premise, and its theoretical foundation 鏄，
本文编号：2501446
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