Judicial Assumption And Its Testing

Purpose of this thesis is through congnitive psychology angle, exploring the cognitive path of thinking behind judicial behavior in refinement, and reveaing the assumption process in judicial judgment and its possible cognitive deviation, to put forward some countermeasures for the solution of the critical testing under the background of deepening judicial reform. The core argument of this article is that, the integrity of judicial decision making is not established on the pure formal logic analysis, but on the basis of the perfect grasp of judicial assumption. Judicial assumption is advance obtained by potential intuitive processing mechanism, and its cognitive function can improve the quality and efficiency of decision making, but it can also lead to deviation and cannot be completely eliminated. Therefore, assumption is tested by adjudicative norms and judicial argumentation, after that, it can be better used to enhance the judicial acceptability and credibility.The first chapter of of this article expounds on the nature, significance and theoretical support of the judicial assumption, to refute it the phenomenon of concealing,and defend it for its natural existence. At first, this article unveils the judicial assumption, clarifies it as the basic way of thinking in the process of jurisdiction when making a preliminary judgment, but in nature it is the embodiment of the professional judgment ability of the judges. Then analysis of the existence of fact about it and its opening and being modified nature, and compared to the concept of similarities and differences between judicial assumptions and judicial judgment, judicial cognition in the aspect of applicable scope and procedural law. Finally, oriented by judicial assumed problem to aggregate the humanities and social science related theory, through the law, psychology, philosophy, economics, historical sociology,and other multidisciplinary communication sense of the description and evaluation, we can more deeply grasp the theoretical support of judicial assumption.The second chapter of the article inspects how to form the judicial assumption. legal vorurteil is a necessary condition for the formation of judicial assumption. The meaning of judicial assumption is from legal vorurteil which is the starting point of judicial assumption.Vorurteil theory is in the core area of the philosophical hermeneutics, and complete its rectification of inevitability in the modern hermeneutics paradigm.American jurist Dworkin makes the legal interpretation and the philosophical hermeneutics of Hans-Georg Gadamer into effective fusion of horizons, deeply explores the meaning of legal vorurteil and illustrates the legitimacy of vorurteil ensured by thing itself. It can be divided into reasonable vorurteil and blindness vorurteil by the standard of legal purpose. Reasonable vorurteil will guide judicial assumption effectively, such as legal language vorurteil brings out the judicial assumption development prospect, legal thinking vorurteil safeguards judicial assumption to tend to stability, legal ethics vorurteil constraints righteousness pointing of judicial assumption and so on. While the blindness vorurteil will produce misleading influnce on judicial assumption,such as vorurteil of political beliefs violates judicial nature and the vision of may life,and the vorurteil of over—pursuiting social effect minsinterprets judicial loyalty. It is necessary to rectify these blindness and unreasonable vorurteils, because these may result in “bad judgment”. Interpretation of cognitive psychology provides solid scientific basis for the formation process of judicial assumption. Judicial assumption is advance obtained by potential intuition mechanism. Intuition system is a kind of Kahneman quick thingking, which can be divided into logical automation and representative inspired, the former is mainly applied in simple cases, while the latter mainly used in hard cases.The third chapter explores function and bias control of judicial assumption from the perspective of the methodology of congnitive psychology. In the ideal situation, because of the certitude psycology and preference, will produce the corresponding anchoring effect, and there will be a document centralism. Of course, in this situation, judgment document can be seen as logical exhibition of assumption function, whatever, it’s limited to deal with cases relying on assumption. The judge holds a “cartesian anxiety”mentality to assumption in the real situation, even there is extreme situation like filelism. Because the function of judicial assumption is affected by the internal and external factors like management system, the model of litigation, the case types and personal traits, it usually exists the possibility of refinement and revision. Judges stubbornly follow it that is easy to deviate from the actual risk. Jugdment assumption appears imperceptible deviation and cannot be completely eradicated, its root cause lies in the defense line of assumption occurrence mechanism breaked by power rhetoric, but also outside the system of normal supervision of public opinion is becomed alienation because of justice "political legitimacy" transformation. Therefore, in order to ensure the function of the judicial assumption, we must strengthen judicial orderly participation and install independence of the judicial system barriers, to reduce the improper intrusion of external factors on the assumption occurrence mechanism, which can be used as effective strategies of judicial assumption cognitive bias.The fourth chapter of this article is emphasis on response and viewing of acceptability theory that extra-legal factors involve in assumption. Faced the question with judicial practice, which appears the phenomenon about "public opinion " trial, “the Administration of Judiciary” and so on, academic circles put forward the acceptability theory of judicial judgment for responsing to query. The theory is aimed at reaching basic judicial consensus between inter-subject through fully adopting opinion and attitude of audiences, which conforms to the judicial practice properties of judicial value orientation. Nevertheless, the theory is the crack to the quesitons on the suface, but still can’t avoid the difficulties in actual, that is the theory provides the justification basis for the ruling of outside heterogeneous factors into law ruling standards,which departs from the rule of law theorists adhering to “taking the law as 4the criterion” idea. This theory supports that allows external factors to get involved in judicial assumption, even serves to justify such intervention. and then,judicial assumption under the condition of ruling criteria is not clear, the external factors as an alternative decision criteria, and also accepts external evaluation test of morality, which will make the assumption more flexible and uncertainty. Otherwise, in our country of hierarchical system, this theory has the possibility of a potential threat to the rule of law, on the one hand, bureaucratic morbidity shakes procedural foundation of judicial independent judgment, on the other hand, power suppresses authority which covers neutral quality of trial and break through the line of the judicial power legitimacy.The fifth chapter of this article investigates the testing of adjudicative norm to judicial assumption in the study paradigm after formation of legal system. The legal basis of judicial assumption’s inspection standard is the legal system supported by coherent and variable arguments in the study paradigm after formation of legal system. There are two modes of debate about the criterion of judicial assumption’s inspection that legalism and rules-skepticism, while the consequential evaluation can be discribed as a new trend of law dogmatics development and it mainly serves as the establishment of assumption testing benchmark in the hard cases. In the strict stage rule of law of China, adjudicative norm is the assumption’s inspection basis of reconstruction in the study paradigm after formation of legal system, with its necessity and feasibility. It is judicial reason that judges who combine with the case facts and legal provisions, specifically create according to legal rules interpretation around legal rules as the drawing-outline model, thus has certain elements. The key of adjudicative norm which is to be assumption’s inspection standard got the authority is that the embodiment of legal rules’ explanation makes extrajudicial demands into the framework of the rule of law to express, thus the assumption becomes more rigid and delicate. In the face of opening judges sourse, adjudicative norm as the inspection standard suffered the objection can make rebuttals as follows: Adjudicative norm is compatible with legal source and legal source is the neccesary material of buiding adjudicative norm. Through intergrating legal principles, customary law and judge-made law into the framework based on legal rules, thus melting into the component of adjudicative norm to make the founction of inspecting assumption better; which shows that adjudicative norm integrated into the discretion method of technical sense, is the expansion and deepening of legalism, also is the review and transcendence of the rules-skepticism( in a sense of strong and weak). The guiding cases as a new form of judicial interpretation, that is application after refined according to legal rules, is absorbed by adjudicative norm, which can also become a benchmark to inspect the assumption.The sixth chapter of this article mainly explores the system of necessary designing about judicial argumentation testing judicial assumption. From judicial assumption to judicial argumentation is the cognitive approach of judicial judgment, judicial assumption should withstand screw inspection of judicial argumentation, it can be accurately evolved. Judicial argumentation as the soul of judges umpiring cases, itself is the reseaonable justification of judicial judgment, therefore the judges should afford this fundamental obligation of argumentation. The core of judicial argumentation is the verifiable procedure, and the judges can equally join in the discussion and argument in due procedure to find the reasons of the opinion different from judicial assumptions, which is not only the proper way to test whether the assumption has deviation, but also the optimization pathway to eliminate the uncertain difficulties about the acceptability of judicial judgment suffered. Judicial argumentation is through by itself verifiable funciotn that can realize test and correction for assumption, and this function can be deeply grasped by two aspects the justification and the falsification. After the argumentation conclusion and assumption conclusion are compared, we can find that assumption conclusion is often unreliable, but external justification can play the role of correction arising the deviation from the assumption guidance. Judicial assumption does not necessarily ensure that analogy itself ought to be treated equally. We specifically examine verifiable function of judicial argumentation in individual cases,and can genuinely perceive the important significance of judicial argumentation on judicial decisions, thus cause the judges using argumentation method consciously, so that make the decisions maximum close to justice.