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The Results-oriented Judicial Thought

Posted on:2015-08-06Degree:MasterType:Thesis
Country:ChinaCandidate:C YanFull Text:PDF
GTID:2296330431955001Subject:Law
Abstract/Summary:PDF Full Text Request
Result-oriented judicial thought is a thinking process when judges are hearing hard cases, they screen legal facts by legal feeling, consider the referee consequences comprehensively, look for the corresponding legal norms, apply syllogistic reasoning following the legal logic and produce a judgment via legal argumentation, legal interpretation and other paths of law application. The result-oriented judicial thought reflects the eyes of judges linger between the facts and regulations; it is closer to judicial practice, can well offset many shortcomings of traditional judicial syllogism, helps to solve hard cases reasonably, has strong practical value and deserves to be studied.The first session discusses the emergence and development of the result-oriented judicial thought and defines its concept. Before the emergence of the result-oriented judicial thought, western countries stressed that judges should apply syllogistic reasoning strictly without having subjective initiative due to the reasons of politics, culture and society. With the rise of opposing the trend of mechanical judicial, the application of the result-oriented judicial thought is gradually entering people’s vision and the practice of judicial thought in some cases also received recognition.The second session is a comprehensive summary of the result-oriented judicial thought in legal theory. Since the19th century, mechanical judicial was criticized by groups of the Teleological Theory of Law, the Interests Theory of Law, the Liberalistic Theory of Law, The Pragmatic Theory of Law and other schools in western countries. Thought inspiration and practical operation were appeared since mid-20th century in Post-modern Jurisprudence, Legal Theory of Economic Analysis, Critical Legal Studies and Neopragmatism Jurisprudence. The result-oriented judicial thought was shaped, revised and improved constantly via law experts of Civil Law System and Common Law System.The third session investigates the applicable occasions of the result-oriented judicial thought. It is possible that special circumstances may exist on the fact-finding process and law application in hard cases, which cannot simply apply the traditional syllogism referee mode. Therefore, judges apply the result-oriented judicial thought has its reasonability and necessity when facing with the problems of unclear facts, legal lag, vague words, non-uniform explanation, principles and rules contradiction and difficulty of mastering legislative spirit arise in cases.The fourth session proposes six applicable steps of the result-oriented judicial thought based on current academia discussion, which are determining facts strictly to explicit properties of dispute, capturing legal feeling to admit and apply preconception, considering consequences in multi-angle to take a better one, seeking associated regulation for supported reasons, applying syllogism to prove the logic between facts and law and standardizing judgment documents to present demonstration process. With stressing legal feeling and the importance of interest balance, the paper insists that deductive reasoning can guarantee the legitimacy of court decisions.Because the application of the result-oriented judicial thought may in defiance of the rule of law, in the fifth session we believe that judges should be loyal to the spirit of legislation, cultivate reliable legal feeling, fill the legal loophole actively, improve judicial techniques, guard against moralities exceeding the limits of law, place the public opinion reasonably, handle the contradiction between customs and laws properly and avoid the judgment being controlled by media and public opinions in two aspects of within the law and extrajudicial when judges are applying the result-oriented judicial thought. In expectation of judges can locate themselves accurately and grasp the application of the thought.
Keywords/Search Tags:Result-oriented judicial thought, Judicial syllogism, Legal application, Hardcases
PDF Full Text Request
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