The Use Of Legal Rhetoric On Judge’s Judicial Mediation

Judicial mediation is a very characteristic system of our country, and also the history is very long.For a long time scholars in our country has been using the perspective of jurisprudence to research the judicial mediation, rarely with other angle to reconsider and perfect the system.Throughout the development of the judicial mediation, there is a dark period in history, judicial mediation still has the irreplaceable status.China’s social history determines judicial decided that it is impossible to replace the judicial mediation.Since the judicial mediation has important research value so the legal scholars began to put the research direction in the field of rhetoric, because the effect of rhetoric of convince and persuade coincides with the purpose of the judicial mediation.In the west rhetoric is one of the most oldest subjects and can be traced back to ancient Greece. Aristotle is the founder of the rhetoric, Perelman and others after Aristotle continued toresearsh rhetoric on the basis of the development.As a result the audience and present concept of judicial mediation has important application value.A lot of people treated the combination of rhetoric and the judicial mediation with deep suspicion, so in the body of the first chapter the author described the practice of the current situation from theory and realitythoroughly in this paper.Why rhetoric in the field of law has self-evident importance?Because no matter in the legislator or judicial person’sview, rhetoric and language is a kind of invisible authority and power.Legislators created the law, but their implementation and enforcement of this law is not self-acting.Once the judges or lawyers use the rhetoric, the law was given a life.In theoretical sense, because the current focus of the judicial mediation is the perspective of jurisprudence, our legal analysis of the judicial mediation is already in place, but the analysis with the perspective of rhetoric is almost blank,Scholars has ignored the value of the judicial rhetorical application on the mediation.The second chapter generalizes the theory of rhetoric.This part is the theory of this thesis.The rhetoric of this chapter can be divided into six stages, and expounds the various stages of the rhetoric of the background, theory development, etc., and thus lead to the relationship between rhetoric and legal argumentation.The rhetoric is one of the three methods of legal argumentation.The third chapter is developed on the basis of theoretical knowledge, further research topics on the judge of civil mediation.To make the rhetoric theory and judge of civil mediationto analyze whether this combination has feasibility.Rhetoric argument also applies to judge civil mediation, of course, because the two parties, however, it is not easy to make both parties agreed on mediation plan proposed by the judge, and this requires the judge’s rhetoric argumentation.This process need the judge tofind a way of how to use the rhetoric argumentation to the acceptability for both sides, to find the point of the consensus of both sides.At the same time, the rhetoric argument itself also has the rationality, can be more conducive to the judge to persuade the parties concerned.The fourth chapter is to put the the theory to the real practice and application.This chapter is a guidance through the real example to analyze problems, and is also the key chapter of this article, aimed at guiding the judge described how to use the front chapter rhetoric theory to work in the specific case of the guidance of mediation.Because the rhetoric method is easy to be used as sophisticated methods, so if we do not regulate the use of it,yhe consequences is unthinkable.Rhetoric in the process of judicial decision is also an auxiliary means of enhance ruling acceptability method, however, all of which are based on the case facts and law, and no amount of rhetoric is also impossible to overcome them.