On The Judicial Reasoning Of Missing Premise

As a basic method, the legal reasoning has been widely used at the theoretical study of jurists and the judicial practice of legal workers. The broad legal reasoning infiltrates in legislation, enforcement of law, the justice and all kinds of law practices. The judicial reasoning belongs to one of legal reasonings. In a narrow sense, the judicial reasoning refers to the reasoning used by judges at trial; it is a logical thinking activity of providing a justification for the conclusions according to the rules of logic, combining with the principle of "making the fact as foundation, and the law as criterion" and using the scientific methods and rules.Because of the complex and ever-changing social life, The Judge is unable to find the corresponding legal norms as a basis for case decisions sometimes; it appears the missing premise of judicial reasoning then. The construction of the premise of judicial reasoning is a process to finding the law essentially, it has three results: one is that it has a clear legislation; one is that it has ambiguous legislation and one is that it has no legislation. The third situation is the type called the missing premise. The value Judgment of the judge is indispensable in the judicial reasoning of the missing premise and the typical form of judicial reasoning is reasoning by analogy.There have been three parts excepting the introduction in this article.The introduction poses a question how to deal with the case, when the premise missed in the judicial reasoning, and cites the case of euthanasia to illustrate the situation of the missing premise and to clear the issue discussed in this article.The first section: the outline of judicial reasoning.Firstly, we expound the relationship between the legal reasoning and the judicial reasoning, On the one hand, the legal reasoning is upper level notion of judicial reasoning. On the other hand, they are different in many respects such as the scope of application. Secondly, we elaborate the features of judicial reasoning as a form of independent reasoning. First, the judicial reasoning is one of reasonings of application of law. Second, the judicial reasoning is a kind of practical reasonings. Third, the judicial reasoning is one of proven activities to seek the legitimacy and rationality of judgment reason. Thirdly, we analyze the role of judicial reasoning in judicial adjudication, it is benefit to make a convincing verdict for the judges and play a role of judicial adjudication. Finally, we discuss the relationship between the mode of judicial adjudication and the judicial reasoning. We conclude that the judicial adjudication is a course of main use of judicial reasoning.The second section: the form of expression and the cause of missing premise.Beginning with the premise of judicial reasoning, we discuss the form of expression and the cause of missing premise in this part. The missing premise called in the article is the case of legal loopholes. The legal loopholes can be divided into different classification, because it comes from the Concept and distinction of law and the law has different classification in accordance with different standards. We discuss mainly several common legal loopholes such as the beginning loopholes and the subsequent loopholes, the partial loopholes and the complete loopholes, the true loopholes and the false loopholes. The cause of legal loopholes involves philosophy, logic, legislative technology etc.The third section: the judicial reasoning applies when the premise missed. This part is the core content and the foothold of this article. It discusses mainly the value Judgment of judge and the reasoning by analogy used in the judicial reasoning, when the premise missed.When the premise missed, The judges should make a choice appropriately, requiring judges to use the principle of law, taking fully into account the requirement of social development, considering fully and seriously all of the supporting and opposing arguments. In this process, the value judgment is very important, the premise will not be able to build and the judicial reasoning will not be done without it.The reasoning by analogy is the typical norms of reasoning, when the premise is missing. Its theoretical foundation is that the similar case deals similarly. It has two types, one is the analogous application and the other is the case analogy. The analogous application is one of reasonings of applying the same legal norms according to the similar case. The case analogy is that the judge applies the principles or methods applied previous case or make the same sentence liking the previous case according to the similar case. It includes in the case analogy of follow the precedent-style and draw on a precedent-style.