Research On The Reasoning Of The Divorce Judgment

Divorce dispute judgment has long existed with simple,rough and stereotyped reasoning,causing the doubt of the public on the justice of divorce dispute trial and low social evaluation on the family judges,thus the divorce judgment fails to realize the judicial functions of maintaining family harmony and stabilizing social order.In judicial practice,the attempt to innovate the reasoning of divorce judgment has received mixed social evaluation.This paper begins from the judicial practice,and explores the reasoning of divorce judgment and how to make the divorce judgment convincing,admissive and acceptable to the parties concerned and the public,hoping to serve as a modest spur to induce someone to come forward with his valuable contributions.Apart from the introduction and conclusion,this paper is divided into four parts:Part One introduces the issue.This part mainly discusses why the judgments need reasoning and important objections of sufficient reasoning specially required by the judgments and proposes the ways for reasoning so as to realize the harmonious unity between emotion,reason and law.Part Two discuses the current problems of divorce judgments in China.This part,mainly through the empirical analysis method,concludes the problems of divorce judgments in reasoning such as lack of standardization,inadequacy and severe homogeneity and in legitimacy and rationality.Part Three reviews the judgment of divorce disputes in different periods in ancient China.This part starts from the traditional divorce judgment cases,analyzes the rationality of reviewing reasonable factors and utilizing figure of speech in the judgment made by ancient judges and the enlightenments of their practical wisdom to the modern divorce judgments.Part Four proposes the measures for the improvement of the reasoning of divorce judgments in China.This part firstly proposes to improve the willingness and capacity of the judges in reasoning from the subjective aspect and to promote the improvement and safeguarding mechanism for the improvement of the judges' reasoning from the objective aspect;secondly to conduct reasoning in the framework of law for divorce judgments so as to ensure the legitimacy and rationality of the judgments;to analyze the three legitimacy justification methods: including legal interpretation,legal reasoning and legal elaboration;to elaborate the consideration of emotion and reasoning in the judgments and finally to focus on the elaborations of the important functions of figure of speech and using principle from the actual cases utilizing figure of speech for reasoning,which is the innovation of this paper.