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Research On Judical Judgement Under The Guidance Of Consequentialism

Posted on:2019-03-04Degree:MasterType:Thesis
Country:ChinaCandidate:M LuFull Text:PDF
GTID:2416330548451641Subject:Law of logic
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It is a difficult problem in judicial practice for a judge to obtain a proper case judgment according to the general norms.In conventional cases,the facts are clear and the legal norms are clear.Judges can directly use deductive reasoning: legal rules(big premise),case fact(small premise)to draw a conclusion.To establish a necessary and persuasive connection between general rules and facts,to realize the formal justice in theory of case adjudication.From the point of view of judicial practice,conventional cases constitute the main body of legal affairs.In judicial practice,however,judges also encounter difficult cases that cannot be solved by deductive reasoning: the facts of the individual case cannot correspond to the normative facts or are directly equivalent to each other,lncluding: rule ambiguity,rule conflict,rule contradiction,rule vacancy and so on.What about judges when logic cannot answer the law? The judicial decision under the guidance of the doctrine of consequence provides a path for it.The judicial decision under the guidance of the doctrine of consequence aims to guide the judge in the face of difficult cases,considering carefully the possible consequences of the application of alternative legal norms,with a view to weighing the pros and cons,Finally determine the applicable legal rules or legal principles to conduct the adjudication.The consequence of this kind of judicial decision is the political,economic,moral,and public interest outside the legal norms.Therefore,to a large extent,it meets the demands of the referee for the substantive rule of law.This paper is divided into three parts.The first part mainly introduces the basic concept of judicial decision under the guidance of consequence doctrine.Firstly,it introduces the theoretical source of consequence doctrine and analyzes the process of its application in the field of law;secondly,it introduces the consequence doctrine consideration of judicial decision.Based on the malpractice of the syllogist reasoning model used by judges in judicial decisions,it is pointed out that in judicial practice,judges usually use deductive reasoning to solve most conventional cases and face difficult cases.The judicial decision under the guidance of the doctrine of consequence shows its important function,especially introduces the meaning of "consequence" considered by the judge in the judicial decision.The second part mainly introduces the practice of judicial adjudication under the guidance of the doctrine of consequence.Firstly,it analyzes the advantages of the doctrine of consequence in the judicial decision of difficult cases through two cases in which the cases are the same in different ways.It demonstrates the characteristics of the judicial decision under the guidance of the doctrine of consequence: to make up for the loopholes in the law and to fit in with the concept of the rule of law;finally,to face up to some difficulties that the judicial decision under the guidance of the doctrine of consequence still faces.The third part is mainly to reconstruct the judicial adjudication method under the guidance of consequence doctrine.Firstly,to determine what kind of case needs to be demonstrated by the doctrine of consequence.Secondly,what kind of criteria should be used to measure the consequences that judges need to consider? Based on morality,legal convenience,public opinion,etc.Finally,the way of judicial adjudication under the guidance of the principle of consequence also needs to be tested by other forms of argumentation such as universality,consistency,consistency,consistency,and so on.
Keywords/Search Tags:consequentialism, judicial decision, legal argument
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