Research On The Contrary Juridical Thinking

The contrary juridical thinking refers to a thinking process of judgment during the judge's trial process in the hard case,first clarifying the facts of the case,finding the conflict,and then relying on the sense of law to make a preliminary judgment,and then measuring the benefits of the different referees,making the best choice,And using the syllogism logical reasoning to prove and test,and finally form a judgment.The contrary juridical thinking has strong practical value in the current social background.It is of great significance both in theory and in practice to systematically study and propose regulation schemes.This paper introduces the research status,research significance and research methods of contrary juridical thinking.As an unconventional thinking mode,the contrary juridical thinking is not suitable and it is not necessary to apply it to every case.Its application should be hard cases,specifically involving cases of lack of norms,legal vagueness and conflict of reasons.The focus of this paper is on the study of the operational steps of the contrary juridical thinking.Based on summarizing the views of academia and practice,this paper puts forward its own views.The specific operational steps of the contrary juridical thinking are as follows:First,the conflict is found:the judge should carefully read the case file,clarify the facts of the case,and find the legal conflicts hidden under the life appearance.Second,make the judgment with the sense of law:catching the sense of law in the mind,and paying attention to it,and making rational judgments under the guidance of the sense of law.Third,the measurement of benefits:a comprehensive analysis of the consequences of various different referee judgments,and make the best choice.Fourth,seek the basis:after obtaining the conclusion,the reverse is to find the legal basis that can be supported,including the selection of specific legal provisions and their interpretation.Fifth,the certificate is corrected:the syllogism reasoning is used to prove the logical relationship,and the legality and rationality of the referee conclusion are tested and corrected again.Sixth,form a format specification and a sufficient judgment.There are advantages and disadvantages to the contrary juridical thinking,which is a double-edged sword.On the one hand,it can overcome the limitations of traditional juridical thinking in hard cases,make up for the inherent flaws of the law,prompt judges to properly exercise discretion,and achieve the unification of legal effects and social effects.On the other hand,it sacrifices the predictability of the law,is susceptible to the pre-emptive influences of judges,and is easily caught in the misunderstanding of formal justice for substantive justice,and which in turn leads to judicial injustice and judicial corruption.Therefore,it is necessary to regulate the contrary juridical thinking.This paper puts forward some suggestions for this:establish a scientific consequence prediction mechanism;do a good job in type case and accumulate referee experience;guard against fairness and justice to break through the legal framework;prevent justice from being shackled by public opinion;improve the judge's refereeing literacy.