Type Of Thinking And Difficult Cases In The Premise Of Proof

The hard case is compared with the simple case. Hard cases can be divided into the hard case of fact and the hard case of law. Generally, the hard case discussed in the law mainly refers to the hard case of law. Compared with the simple case, the final judgment of hard case can not always be obtained by simple syllogistic reasoning. Based on the classification of causes and types of the hard case, it can be seen that there is no clear and simple logic relationship between the legal norms and case facts of the hard case. The judge cannot simply apply the traditional syllogistic reasoning mode. The article considers that, according to this condition, it requires to use a variety of legal methods to solve the problem. Generally, legal interpretation, leak supplement, value judgment and legal demonstration can be used. According to the theory of the majority of scholars at home and abroad, the article considers that it is difficult to find the applicable major premise for the hard case. Namely, the problem is the judge can’t find the suitable legal norms for the current facts of the case. In order to find the suitable legal norms for hard cases, legal discovery becomes a prerequisite for the solution of hard cases. In fact, the key to solve hard case actually is to find a meeting point between the facts and the norms.Type thinking as a supplement way of thinking to traditional concept thinking, with the characteristics of openness, integrity and visibility has been widely used in many disciplines.At the same time, from the development trend of current law science methodology, the type thinking as an important legal thinking tools is increasingly prominent and has been paid more and more attention by people. In the process of analyzing and researching the function of type thinking, the article draws a conclusion that as a way of legal thinking, type thinking is closely related to different legal methods in the practical application. On the other words, type thinking can’t be applied to actual case without the help of specific legal methods. In this process, type thinking provides a more convenient and effective solution for some problems often appear in justice with its own function.Through the analysis and research of a variety of hard case theories, we can find that to those hard cases for legal reasons, the key to solve the problem is to determine and justify the major premise of the case. The justification of major premise is not only related to solve the case reasonably, but also has an important influence on the legitimacy of judicial judgment. Judging from the problems that may occur in the justification of major premise of hard case, legal argumentation, legal interpretation, leak supplement and value judgment are always be used to justify the major premise. On this basis, the article introduces the type thinking to the justification of major premise. With its characteristics of openness, integrity and visibility, type thinking plays a unique role in the justification of the major premise. The equalization model is the basic model for type thinking to connect the legal norms and the fact of cases. And the standard of the model shows the characteristic of type thinking. In the process of type thinking to justify the major premise, type thinking constantly highlights its own characteristic. On the other hand, type thinking cooperates with other legal methods to obtain the result of hard case in the process. This determines the type thinking used in the administration of justice is not unique and its function is limited.