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Law Finding In Fiction Judgment Of Tang Dynasty

Posted on:2011-08-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:T T XiaFull Text:PDF
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Law finding is an usual terminology used in western, but it is immature in our law field. The theory of law finding plays an very important role in our judicial practice although there are different understandings of it's concept. As a method, it also can be used in judicial practice in ancient China. Standing at the point of Law Finding view, court verdict of Tang Dynasty has its features, that is different social nature, simulate trail sites, pending identity and be formed facts of the case. Law finding needs a finding place which was called source of law. There are formal and informal source of laws if you stand at the center of justice in Tang Dynasty. Formal source of law includes Lu, Ling,Ge and Shi, and case law is take part in formal. Informal source of law includes Qing, Li and customary law, which was used for civil cases usually.After define the finding place, the judge needs to explain the law, to make sure the facts of the case and certain that the law is suitable to the facts of the case at last. There are too many methods to explain the law such as literal interpretation, purpose interpretation, interests balance and so on.Law finding is a process, it not only includes the law finding but also has the fact reasoning. And the fact finding depends on the way of thinking, our ancient people used experience of thinking primary. Because of this thinking way, people used the analogical reasoning method in judicial practice. In the court verdict of Tang Dynasty, people were adept in classifing the typical cases, and they liked to use metaphor sentences to describe the details of a case. The value of the court verdict of Tang Dynasty is to training legal sense of judge. And its purpose is to increase the experience in handing cases. It means that the judge could find the source of law, and he could have the ability to interpret the law, most important he must know the law which he used should be fit with the fact.In fiction judgment field, we can peep our ancient people's handing skills and reasoning methods, but there are lots of factors affect the finding results. Such as external factor, which includes selection system and appraisal system, both affect the quantity and quality of court verdicts. Internal factors'influence were deeper and wider. The same education method and knowledge level made the judges can gave the similar results of judgment. But it also exists individual difference, so the different results came from the one case can be understood.Except the fiction court verdicts, it also exist the real court verdicts in Tang Dynasty. The law finding method which we researched in fiction court verdicts had influenced the real ones. The court verdict of Tang Dynasty contains a lot of knowledge of law, which need us to scoop.
Keywords/Search Tags:Law Finding, Fiction Judgment, Tang Dynasty, Court verdicts
PDF Full Text Request
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