Analysis To Hard Cases By The Judicial Cognition

This dissertation divides the hard cases into three kinds: the hard cases in fact, the hard cases in the legal rule, and the hard cases under the social cognitive background, and each kind has respectively enumerated a concrete case. After that analysis is carrying on from the judicial cognition angle to these three hard cases. The judicial cognition can be defined from three aspects: what's judicial cognition, who is the subject of cognition and what's the object of cognition. As one kind of knowledge, judicial knowledge is under the cognitive back aground of particular society. Judicial cognition bears the characteristics of historical attribute and social attribute. Though mode of thinking and cognitive ability, the social cognitive background influences the judicial decision. With the help of the hard cases, the author concluded that judicial cognition is one regulated by law and it is unfeasible denying the present law. The text of the law and the individual case always exist asymmetrically. These needs reasonably to interpretative the text of the law and attach too much importance to the legal hermeneutics. Therefore, the two theories on the interpretation of the law, one stressing the content, the other emphasizing the method, are both indispensable. Interpretation without hermeneutics tends to lack in substance whereas hermeneutics without interpretation tends to be blind. The process of judicial cognition -- mechanism of thinking is also observed. Judicial cognition is a special kind of historical cognition, which is mainly embodied as the thinking process by which fact–finder re-formulates the cases and includes legal demonstration by multilateral bodies. The importance of falsification and utilization of presumption in the mode of system of free evaluation in the judicial routine is specially emphasized.The nature of the fact as adjudicating ground is studied in the sixth part. The fact is the knowledge that the fact-finder believes it is true and is one the law regarded as true. There is three factors which influence the determinacy of the fact as adjudicating ground: the text of the law, the affirmation of the fact and the factor of society and individual. With enhance of the cognitive ability of human being and the development of legal institution, the possibility of error is increasingly demised, but it cannot be eliminated totally. The final chapter initially summarized three basic principles of the judicial cognition: subject trinity and objective, absolute mess and relativity and truth and rationality.