Study On The Analogical Reasoning In Justice

Analogical law reasoning is a main legal method for the judges in the common legal system to trial cases. At the same time, it is also the main constituent of methodology of legal research .However, in mainland legal system country, analogical law reasoning has a winding history, even is rejected in criminal law. The same legal method has so distinct status and role in different legal system countries that in this dissertation, I will discuss the analogical reasoning in justice with five chapters.Chapter1, conception of analogical law reasoning and compare on the similarities and differences of it correlative conception: analogical law reasoning and teleonomy limited to shrink, as well as teleonomy expanded, are all remedies for the legal loopholes in legal method, and they are perplexing conceptions for us. Because the principle of a legally prescribed punishment for a specified crime has been established and analogy application has been banned absolutely, while the teleonomy expanded explanation is permitted in criminal law. It is helpful to difference between analogy and analogy explanation from expanded explanation to avoid violating the principle of a legally prescribed punishment for a specified crime in the way of replacing the analogy with expanded explanation.Chapter 2, cause of the analogical law reasoning: here, we have mainly analyzed the cause of the existing of analogical law reasoning, in order to attach importance to it.The3th chapter, the judicial practice of analogical law reasoning: this part is the key of this dissertation and the content of this chapter is the application of the analogical law reasoning to civil and criminal field and the legal precedent analogy.The 4th chapter,, handle the analogy technology correctly. Considering the uncertainness of the analogical law reasoning's result, can the judge handle the analogy correctly only when he master the analogical technology well in order to guarantee the dependability of the analogy's result.The finally chapter, evaluation and revelation of the function of analogical law reasoning: we have analyzed the positive and negative effect of the analogical law reasoning to look on the analogical reasoning objectively and bring us useful revelation for Chinese judicial revolution.