On The Methods Of Judicial Judgment

The first chapter is a general account of the methods of judicial judgment, respectively illustrating such three aspects as the definition of judicial judgment, the connation of the methods of judicial judgment and the deficiencies of the methods of judicial judgment. Judicial judgment is such an activity that a judge or a court applies legal regulations into a specific case or controversy, and a binding decision on the allocation of rights and obligations between relevant parties in a litigious case, but it is deemed that these rights have been confirmed by present laws in principle. The methods of judicial judgment are the methods in which a judge constructs a case as the minor premise of a trial and that as the major premise of a trial, and finally make a logical judgment. The methods of judgment include the methods of confirming a fact, the methods of seeking laws and the methods of legal inference. The deficiencies of the methods of judgment lie in all aspects of confirmation, legal application and inference.The second chapter concerns the methods of confirming a fact, respectively illustrating the definition and characteristics of a legal fact, and the basis, means and methods of confirming a fact, etc. The legal fact is a fact and an objective phenomenon that can cause the occurrence, alteration and extermination of a legal relationship regulated by laws. The fact a judge bases on is a legal fact that has been contracted by a judge according to the substantial law, evidence law and procedural law, might affect the legal relationship, and possesses legal significance. The characteristic of a legal fact lie in the fact that has been filtered by the procedural law and represented by the regulations of evidence and the fact that has been contracted by a judge according to the regulations of the substantial law and possesses legal significance. According to the regulations of evidence, a judge uses the method of experience demonstration and logic demonstration to confirm a legal fact, and meanwhile considers whether the fact conforms to the legal regulations. The basis on which a judge confirms a legal fact is evidence, and the basis of confirming a legal fact is inference. The standards of demonstration are the standard by which a judge confirms a fact, and the necessary or minimal limit of mental impression by which a judge estimates the existence of a fact. The methods of confirming a fact includes: (1) the confirmation of examining evidence. The collection of evidence and the judgment of the evidence's demonstrating might are confirmed by examining evidence, which is the basis of confirming the fact of a case as well. (2) The application of science and technology. In the event that the judge's knowledge is insufficient, the professionals with professional knowledge, techniques and experience will analyze and judge through scientific and technological means to help the judge confirm the evidence and fact. (3) It should be measured whether the fact to be proved conforms to legal regulations. The fact that is significant to a party's claim should be legally selected, and the fact that does not affect the legal judgment should be excluded. (4) The deduction of the high degree of probability. If the judge deems that the fact of a case that is confirmed through evidence is regarded true by laws, the fact can be confirmed. (5) The deduction and affirmation of a fact. If there is no direct evidence or the direct evidence cannot prove the reality of the fact to be proved, the fact should be confirmed by the deduction based on the normal relationship between the indirect evidence and the fact to be proved. (6) The interpretation of the articles of a contract. When the parties of a contract have disagreement with the real meaning of the articles of a contract, the judge should interprets the articles of the contract according to legal regulations, in order to define the real meaning of the articles of the contract. (7) The deduction of the judgment of value. According to his experience gained during a long time, the judge confirms the fact of a case through the judgment of value.The third chapter involves the methods of searching laws. The search of laws is also called legal finding, and it is the activity of searching and finding laws in the legal origin, and recognizing and selecting the basis of dealing with a case's judgment. The methods of searching laws include applicable recognition, legal interpretation, supplement to legal gap, and measurement of interests. Applicable recognition is that the judge recognizes, differentiates and selects the regulations of written laws which are planed to serve as the legal basis of a case to be proved. Legal interpretation is that the judge illustrates the content and connotation of a legal text, including the understanding of the text's connotation and the presentation of this understanding. Supplement to the legal gap is that the judge supplements the imperfection of the violence to the legislative plan in the legal system. The measurement of interests is that the judge decides to protect one kind of legal interests after measuring the conflicting interests in legal orders.The fourth chapter concerns the methods of legal inference. Inference refers to an activity of human's logical thinking, i.e. to deduct an unknown judgment from one or several known judgments. Legal inference particularly refers to a legal method and technique by which the subject in the legal practice, according to the known legal facts and legal norms, adopt scientific methods and norms to deduct and make a demonstration, in order to get the results of dealing with the case to be proved. Legal inference comprises formal inference and substantial inference. Formal inference is the inference made by directly using relevant legal articles and strictly basing on the structure of judgment regulated by legal articles, according to the confirmed fact of a case, during the process of applying laws. Formal inference includes deductive inference, inductive inference and analogical inference. Formal inference has limitations, and it cannot resolve all the legal issues. Substantial inference is the inference based on the content of legal norms, the aim of legislation and the basic value orientation of legislation. Substantial inference is also called dialectical inference. Substantial inference is an activity of logical thinking that is conduced by using scientific methods and principles, selecting the best proposition with the help of dialectic thinking in order to solve a legal issue and provide laws with justified reasons, when two of more than two premises of inference conflict with each other, but every premise has certain reasonable legal proposition. When the legal regulations themselves are ambiguous, have legal gaps or legal conflicts, and own the contradiction between legitimacy and reasonableness, substantial reference is needed. Substantial reference is a kind of rational and meticulous logical thinking, so when adopting substantial reference, the judge shall be greatly cautious, must insist the principle of basing oneself on facts and taking laws as the criterion and shall not abuse it.