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The Rhetoric Approach Of Reasoning Of Criminal Judgement

Posted on:2021-05-01Degree:MasterType:Thesis
Country:ChinaCandidate:J Y WangFull Text:PDF
Abstract/Summary:PDF Full Text Request
Judgment as a written carrier for recording trial activities and trial results,as a product of the operation of judicial public power,its value is not only to give the results of individual cases,but also to carry the important tasks of highlighting social justice,promoting the rule of law and establishing judicial credibility.To achieve the above goals,thorough reasoning is essential.Since criminal judgments are related to the safety of major persons and property,they should strengthen their reasoning so as to realize the social effects of punishing evil and promoting good,and demonstrating judicial justice.The reasoning of judgments has always been the focus of judicial reform in China,but the reasoning effect of criminal judgments is not good,and the problem of low acceptance of judgments still exists.Especially with the implementation of the online system of referee documents,while the public is exposed to more criminal judgments,the deficiencies in the rationale of the judgments are also revealed in the public's eyes.How to improve the reasoning of the criminal judgment and allow justice to be better expressed in order to improve the acceptability of the reasons for the judgment and the outcome of the judgment is a problem that needs to be solved urgently.This article cuts in from the perspective of legal rhetoric and takes the solution to the predicament of criminal judgments as a starting point.Based on the analysis of the problems and causes of criminal judgments,by elaborating the theory of legal rhetoric,analyzing its advantages and specific methods in improving the reasoning of criminal judgments,it provides a feasible way for improving the content of criminal judgments and improving the acceptability of judgmentsAn excellent criminal judgment should clarify the affair,explain the legal principle and explain the reason.Nowadays,most of the criminal judgments in our country are still in the form of reasoning,and there are problems such as insufficient reasoning in fact determination,insufficient reasoning in applying the law,insufficient response to defense opinions,and lack of appropriate persuasion..The reason is that there are problems with the reasoning methods adopted by some judges.When some judges write judgments,they mostly rely on the formal logic of judicial syllogism to prove their arguments.Judicial syllogism has unique advantages in ensuring the validity of the form of judgment argument,restricting judges' willfulness,and demonstrating judicial rationality,but it cannot fully describe the entire judicial process.Judicial syllogism cannot explain the determination of the facts of the case,the discovery,interpretation and application of legal norms,and the value judgment in the trial process.When the audience questions the premises and results,it cannot respond.In addition,some judges also use monologue reasoning,self-talking in the verdict,ignoring the persuasion of the verdict audience.The shortcomings of judicial syllogism and monologue reasoning shows the necessity of criminal judgment reasoning to seek other methods.Legal rhetoric with persuasive purposes provides a new way to improve the inadequacy of criminal judgments and improve the acceptability of judgments.Legal rhetoric is not only a linguistic skill for creating words and sentences,but also a rational method of argumentation.The combination of the two plays an important role in enhancing the rationality of judgment.Topical theory,Toulmin's argument model and Perelman's new rhetoric thoughts are important theoretical sources of legal rhetoric.The core theories of "Problem thinking","Audience theory" and"Consensus" provide theoretical guidance for the application of legal rhetoric in the reasoning of criminal judgments.Legal rhetoric also plays an active role in improving the content of argumentation and reasoning,improving the rationality of conclusions,persuading listeners,improving the acceptance of judgments and regulating public behavior,and establishing judicial authority.To use legal rhetoric to perfect the reasoning of criminal judgments,it is necessary to master the specific application methods.As far as the application field is concerned,legal rhetoric is widely used in criminal judgment reasoning,and it can be mainly applied to the construction of case facts,legal application reasoning and persuasion of sense and so on.In terms of application methods,first of all,we must accurately grasp the difference and application limits of negative rhetoric and positive rhetoric.In the process of reasoning,we mainly use plain and succinct negative rhetoric.When necessary,supplemented by lively positive rhetoric to make the criminal judgment pass the appropriate expression way to persuade the audience.Secondly,according to the requirements of the audience theory,in the judgment reasoning,the audience should be the center,and different expression methods should be selected according to the interests of different audiences.The writing of the reasoning content should be focused to achieve better persuasion to the audience Finally,the criminal judgement can improve the content of reasoning from the aspect of speech and argumentation through the use of rhetorical strategies at the level of speech skills and rhetorical methods at the level of argumentation,to achieve persuasion to the audience.Everything has two sides.On the one hand,legal rhetoric can strengthen the reasoning of the judgment,on the other hand,it can also be abused to eliminate the rule of law.Compared with civil and administrative judgments,criminal judgments have strong public law characteristics,Judges should be more cautious in their reasoning,Therefore,when using rhetoric for reasoning,Judges must pay more attention to the limits.When judges use rhetoric to improve the content of the judgment,they must adhere to the premise of law and logic,and apply rhetoric necessarily and appropriately...
Keywords/Search Tags:Criminal Judgment, Legal Rhetoric, Audience, Acceptability
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