On The Technique Paradigm Of Typological Classification Of In Law Applying

This dissertation consists of three parts: introduction, body and conclusion. The first part manages to clarify the following points in this dissertation:why the topic of this dissertation is focused on subsumption and typological classification; what is the intrinstic thinking vein and meaning of this dissertation,and what is the basic structure of it.The body of this dissertation is consists of six chapters. These questions will be discussed and illustrated as follows:Chapter one, asking for the meaning of reaserching in the technique of law applying. As the beginning of this dissertation, it tries to emphasising the meaning of the reaserch in law applying technique. Beginning from two cases that are well known, it intruducts the technques in making judgements. Through the profound contrasting, it makes us known the meaning of research in the technques of law applying in theory and practice.Chapter two, negative reflecting on the subsumption in law applying. In tradition, subsumption is the most important technique in law applying, especially in the view of law positivism. Wo must criticize the subsumption in order to estedlishing a new technique in law applying. After a brief historical examination of the subsumption in law applying, this dissertation holds that, as one kind of moral sciences, and taking the meaning understanding as its method, legal science, who does not share the substance with natural science, could not share the methodology with natural science. The latter takes logic deduce as its most important method. The negative reflecting is taken from two aspects: first, the process of the subsumption is empty; second, the major premise of it is not so perfect and dedermined as it asked looking from the view of linguistics.Chapter three, intrducting and analysizing the academic attempts that try to substitute the position the subsumption holds. After abandoning the most important position that the subsumption holds, wo must look for the new technique for law applying that could takeplace it. So wo give a brief comment for the research of legal methods at present: first, the effort looking for the order in the legal methods, in a certain sense, or for ever, does not have a result. The scholors have not found out the turn in the legal methods in applying law that is universally agreed. Second, the analysis shows that the legal justification is not the outlet yet. The legal justification could not substitude the position that the subsumption holds and cold not become the central legal method.Chapter four, explaining the justification of the typological method. The goal of this part is try to persuade the reader to accept the typological method. First, it points out that though the typological method can not bring out a certain judgement, it is useful to realize the fareness in a concrete case, and what the judgement should to persued is not certainty but suitability and fareness. In the following, this dissertation discusses the truth in the judgement,and points out that traditional view of the truth is not suitable for the judgement and unanimity and acceptbility are more important for the judgement compared with truth. Next, this dissertation holds that the due process could fill the uncertainty that broungt by the typological method,and analyses the intrinstic mechanism of it, and connects substantial justice and procedural justice in some sense.Chapter five, analysizing the theoritical foundation of the typological method and pointing out that the typological method is helpful to realize the substantial justification of the judgement. Considering the negative reflection and academic effort mentioned above, this dissertation holds that the typological method could act as the role that subsumption placed. The typological method is the concrete use of Hermeneutics in law applying. First, this dissertation looks the process of law applying as the circulation of Hermeneutics. That is the foundation of typological method. Second, this dissertation contrasts the type -thinking pattern with the concept -thinking pattern, and believes that the things in the world is just similar, not identical. The concept -thinking pattern maybe has the question of excessively abstracted and the type-thinking pattern is more suitable to find out the real appearance of the things. Third, this dissertation intruducts the concept of law in the view of Hermeneutics. That is, law means the correspondence between the norm and the fact. The methods must be different in applying law if you have the different concept of law. Looking the law as the relation but not the substance would give the chance to use the typological method in law applying. After that, this dissertation explains the analogy in law applying in the view of typology. Arther Kaufmann, the famous scholor of Genman, holds that the conception of law is analogying originally. So, the typologocal method becomes the most important method in law applying. There are two kinds of analogy, in the narrow or in the general sense. The former is in the veiw of legal interpretation, and the latter, the Hermeneutics. The traditional analogy is not important at all in the system of legal methods. It is just one of the many methods that could fill the hole of the law when the law could not be used. But in the view of Hermeneutics, there have no two cases that are uniform on every aspects, and the discovering of the law in a concrete case is based on the analogy. Essenciall speaking, analogy is on the basis of type and typological method. That is the relationship between them.Chapter six, explaining how to take the typological method to fact. Connecting with the theoral analysis, this part try to explains the concrete using of the typplogical method. First, this dissertation intrducts the common steps in type thinking pattern. That is, the type -thinking pattern is how to goes. Wo can make sure whether the fact that would be judged is just belonging to what the legal norm want to adjusted. The method of that is to compare the fact with the legal norm, and try to find out the same meanings between them. That is the concrete use of the Hermeneutics circule in the judicature. Gong back to the goal of the legislation maybe is also a rational choice. It is helpful to find the meaning of the legal norm. The most popular method is to compare the fact that would be judged with the typical fact that is difinitely the legal norm should be adjusted. Second, this dissertation explains the similarities between the typological method and some kinds of the traditional legal methods. I t shows that the typological method is not too strange to accept. That makes it not so far from our feeling. Third, this dissertation gives some hard cases to examine the use of the typologocal method and try to demondtrate the usefulness of it. Having the ability to deal with the hard cases easily is the best proof for the justification of the typological method. Next, this dissertation compares the typological method with the principle -establishment method, which is very influencial in those days, and draws the conclusion that the typological method is more appropriate for China.In the ending part, this dissertation gives a brief analysis to the possible influence brounght to the legislation and judicature by the law applying paradigm, and makes us known the significance of type -thinking pattern in legal science. As far as legislation concerned, wo can make opening codes, and much use the legislation techneque of "summary and illustration". As far as judicature is concerned, the typologocal paradigm strenthens the burden to proof of the judges, increases the rationality of the judgement, and demonstrates the democracy of the judicature, makes the logic inferrence have only the sense of formalism.