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The Application Of Legal Rhetoric In Difficult Cases

Posted on:2019-07-23Degree:MasterType:Thesis
Country:ChinaCandidate:X L ZhaoFull Text:PDF
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With the development of our society,economy and culture,in the judicial practice in China has emerged a large number of difficult cases,because of the lack of relevant legal basis,the judge in difficult cases is difficult,how to deal with these complex cases,has become an important issue of legal affairs and legal theory research,this paper in real life,the "Peng Yu case" and "Luzhou kept woman case" and "Huan in case" as an opportunity,through the analysis of the connotation,the causes of difficult cases and different types,from the perspective of legal method,to find a way to solve difficult cases.From the traditional judicial syllogism--can be seen in the closed syllogism reasoning,because of difficult cases exist vagueness of legal regulations of the legal rules,the conflict between "rationality" and "legitimacy" of the conflict,in order to get reasonable and lawful,impartial judgment results,realize the optimization the judgment in the case,the need to consider the substantive factors of legal judgments,especially the role of morality,emotion,social factors of subjective ethics et al in judicial judgment,how to realize the justice of judicial case at the same time,and can meet the requirements of the current law.From the point of legal methodology,the key lies in the proper judicial judgment of value,and different law schools by different theoretical approaches to find methods to realize the rationality of the judicial,including Hart's theory,Dworkin's free judgment overall judicial principle,legal hermeneutics "preunderstanding" Alexy's theory of legal argumentation opinions,etc.,can be said to provide an important theoretical basis for the rational pursuit of solving difficult cases.As a legal argument which rhetorical persuasion tool,justice for difficult cases to provide a good demonstration method and mode of thinking,the referee in the debates,which are communication,dialogue and negotiation to solve the case between the judge and the parties and the public,it emphasizes the moderate openness law.In the context of attention in the analysis of the discourse subject,form a legal discourse oriented way of thinking,so as to realize the rationality of judicial adjudication.The main results include Viehweg's rhetorical theory of legal topics,Toulmin's argument pattern,and Perelman's new rhetoric three theoretical forms,legal rhetoric as applicable to the judicial field has its unique advantages,focusing on Legal Rhetoric about the listener's persuasive argumentation in judicial judgment,to the whole of the layout "the pursuit of rationality of the conclusion.The use of rhetorical argumentation in judicial decisions helps to create an equal referee atmosphere,improve the process of argumentation,make up for the defects of other legal methods,expand the legal vision,increase the acceptability of judges,and establish the value of judicial authority and communication law.Of course,its Legal Rhetoric also has its own shortcomings.Legal rhetoric can be regarded as a breakthrough to the limitation and scope of legal logic.Therefore,it is necessary to prevent judges from misinterpreting the law by using legal rhetoric and violating the basic spirit of law.
Keywords/Search Tags:Judicial referee, Syllogism, forensic rhetoric, Persuasive argument
PDF Full Text Request
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