试论法官思维与司法三段论

发布时间：2018-04-27 19:56

本文选题：法官思维 + 司法三段论　；参考：《西南政法大学》2011年硕士论文

【摘要】：法律思维是与特定的法律职业相联系的,也是法律职业共同体的人通过法学教育和实践体验所形成的独特的思考方式。法官是国家审判权的行使者,且往往是公平、正义的象征。在法律思维中的典型思维就是法官思维,法官思维具有典型的特征,即合法性、中立性、程序性、复杂性等,法官思维的每一个特征都区别于大众的思维,该思维是法官公平行使审判权的基础。在这些特征的基础上,司法三段论推理模式作为法官思维的典型范式,其作用不容忽视。而这一的常用思维——司法三段论不能满足法官思维的需要,不能满足日益变化的社会法治的要求。其自身的缺陷,如大前提存在漏洞、小前提的事实不清等等,会导致法官无法做出审判。因此,法官需要综合考虑多种因素,在法律允许的范围内,运用多种思维方式来进行案件的审理。作法律来源于社会,而社会生活是纷繁复杂,因此在对案件的审理中,法律的滞后性等特点使法官会出现无法可依的情况,而这与法官思维的合法性相冲突的。对于如何解决冲突,就需要法官不断提高自己的法律职业素养,不断的学习法律知识,借鉴其他法律思维的方式,为实现正义,为社会主义法治建设做出贡献。本文的第一部分,旨在探讨作为法律思维典型的法官思维不同于大众思维的特征。为了更好的认识法官思维,本文从法律职业的角度对法官思维所属的法律思维以及关于法律思维的研究呈多样化的特征进行研究分析。正是法律职业的特殊性,使得这个群体思维有自己独特之处。法律思维可分为立法者思维、司法者思维、执法者思维以及守法者思维,而法官思维属于司法者思维。法官的身份及其职责决定了法官必须站在中立的立场,去解决当事人纠纷、化解矛盾、促进社会的公平、维护社会的稳定。正是法律职业的特殊性,使得这个群体思维有自己独特之处。它不同于众思维,具有合法性、中立性、程序性、复杂性等特征。作为法治建设中的一员法官思维的建立和完善尤为重要,法官思维的提高是社会法治建设的重要组成部分。本文的第二部分,旨在探讨法官思维的典型范式——司法三段论。通过第一部分对法官思维特征的研究,我们得知,作为法官思维的典型,司法三段论在法官审理中发挥着重要的作用。亚里士多德被称为是三段论思维的鼻祖,其三段论从产生到现在都一直在被不断研究。由于三段论是司法三段论的来源,三段论的推理规则司法三段论也应该遵守。三段论审判作为法官审判模式颇具其独特性,他能提高法官的断案效率,限制法官的任意性。这种思维模式受到法官的青睐,但是,它并不是完美的,还是存在一些不足。这些不足与法官的思维特征存在矛盾,这就需要法官的运用其他思维方式来弥补司法三段论的不足,从而提高法官思维。本文的第三部分是关于法官思维的完善措施,在分析了法官思维的特征,法官思维的范式之后,我们可以看出,在司法实际中,司法三段论这种常用的思维不能满足法官思维的需要,不能很好的让法官在断案中保证法律效力和社会效力的统一。因此,本文从法官审判的技术上、法官自身的素养以及法官审判经验的相互借鉴上,对完善法官思维提出了建议,使法官在裁判时能够不局限于三段论的审判模式,更好的实现裁判的公平,尽快的得出法律裁决;另外他国的裁判经验也为法官思维提供了借鉴,在演绎推理之外,类推的判例法也能为法官的思维提供参考,能符合法官思维的复杂性特征;而作为法官其自身的因素也会影响其思维,因此,从自身素养的培养做起,不断提高思维层次,成为公平和正义的捍卫者。
[Abstract]:The legal thinking is related to the specific legal profession, and it is also the unique way of thinking formed by the legal profession and practice experience of the legal profession community. The judge is the envoy of the judicial power of the state, and is often the symbol of fairness and justice. In the legal thinking, the canon thinking is the judge's thinking, and the judge's thinking has the allusion. The characteristics of the type, namely, legitimacy, neutrality, procedural, complexity, etc., each characteristic of the judge's thinking is different from the masses' thinking, which is the basis of the judge's fair exercise of the judicial power. On the basis of these characteristics, the judicial syllogism model is the typical paradigm of the judge's thinking, and its role can not be ignored. And this one is Chang Yongsi. The judicial syllogism can not meet the needs of the judge's thinking, and can not meet the demands of the changing social rule of law. Its own defects, such as the existence of loopholes in the big premise, the fact that the small premise is not clear, and so on, will lead to a judge unable to make a trial. Therefore, the judge needs to consider a variety of factors in a comprehensive way and use more in the scope of the law. The law comes from the trial of the case. The law comes from the society, and the social life is complicated. Therefore, in the trial of the case, the lag of the law causes the judge to be unable to rely on, and this is in conflict with the legitimacy of the judge's thinking. For the solution of the conflict, the judge needs to improve himself constantly. In order to achieve justice and make contributions to the construction of socialist rule of law, we should constantly learn legal knowledge and learn from other ways of legal thinking.
The first part of this article is to discuss the characteristics of the judge's thinking, which is typical of the legal thinking, which is different from the mass thinking. In order to better understand the judge's thinking, this article studies and analyzes the legal thinking of the judge and the research on the legal thinking from the angle of law profession. The special nature makes the thinking of this group unique. Legal thinking can be divided into legislative thinking, judiciary thinking, law enforcement thinking and law-abiding thinking, and the judge's thinking belongs to the judiciary thinking. The judge's identity and responsibilities determine that the judge must stand in a neutral position to solve the parties' disputes, resolve contradictions and promote the conflict. The fairness of the society and the maintenance of social stability. It is the special nature of the legal profession that makes the group think its own unique features. It is different from the public thinking, with the characteristics of legality, neutrality, procedural, complexity and so on. It is particularly important to establish and improve the thinking of a member of the judge in the construction of the rule of law, and the improvement of the thinking of the judge is the social law. An important part of the construction of governance.
The second part of this article aims to explore the typical paradigm of the judge's thinking - judicial syllogism. Through the first part of the study of the judge's thinking characteristics, we know that, as a typical example of the judge's thinking, judicial syllogism plays an important role in the trial of judges. Aristotle is called the ancestor of syllogism and its syllogism Since the syllogism is the source of the syllogism, the syllogism of the syllogism should also be observed. The syllogism, as a judge's trial pattern, is quite unique. He can improve the judge's efficiency and limit the arbitrariness of the judge. This mode of thinking is favored by the judge, However, it is not perfect, or there are some shortcomings. There is a contradiction between these deficiencies and the thinking characteristics of the judge, which requires the judge to use other ways of thinking to make up the insufficiency of judicial syllogism and thus improve the thinking of the judge.
The third part of this article is about the perfect measure of the judge's thinking. After analyzing the characteristics of the judge's thinking and the paradigm of the judge's thinking, we can see that in the judicial practice, the common thinking of judicial syllogism can not meet the needs of the judge's thinking, and it can not make the judge ensure the legal effect and social effect in the case of the judge. Therefore, on the basis of the technology of judge trial, the judge's own accomplishment and the mutual reference of the judge's trial experience, this paper puts forward some suggestions on perfecting the judge's thinking, so that the judge can not be limited to the trial mode of the syllogism in the referee, better realize the justice of the referee, and get the legal adjudication as soon as possible; in addition, the referee of his country is a referee. The test also provides reference for the judge's thinking. In addition to deductive reasoning, the analogical case law can also provide reference for the judge's thinking and meet the complexity of the judge's thinking. As a judge, its own factors will also affect his thinking. Therefore, from the cultivation of his own accomplishment, it will constantly improve the level of thinking and become the defending of justice and justice. Guard.

【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D916

【引证文献】