The Path Of The Legal Discovery

According to existing theories,it is generally considered that the judge is rational and objective when hearing cases and can judge fully according to procedures ruled by laws.Actually,this kind of opinion is different from the cognitive of legal psychology and also ignores the impact of individual factors on the cases.It is true that the outcome of the case is obtained by the judge through legal reasoning.The starting point of legal reasoning is to obtain the first premise through legal discovery,but the acquisition of the first premise is not natural but requires the judge to carry out a series of thinking activities.The purpose of this thesis is to reveal the thought process through the study of the path of legal discovery,revealing how the judge actually conducts the legal discovery.Combined with the relevant knowledge of cognitive psychology and judicial practice,it can be concluded that the judge follows the path of “discovery-detection” when conducts legal discovery,in which intuition plays an important role.The intuition that judges have when they discover the law may lead to certain deviations,but this kind of deviation is not uncontrollable.Through the efforts of individual judges and the improvement of external mechanisms,the instinctive “comfortableness” can be largely avoided,which can lead the intuition plays a positive role.The research methods used in this thesis mainly include literature analysis methods,comparative research methods,and interdisciplinary research methods,etc.The literature analysis method is a basic method of academic research.Only by reading and analyzing a large number of related literatures can we accurately grasp the current research status of the legal discovery and lay a solid foundation for the next step.Although there are great differences in culture between China and the West,there is still a certain consensus on certain legal issues.We can fully grasp the legal findings by using the comparative analysis method.The term of legal discovery may be not long in China,but in the West,from Plato in ancient Greece to Posner in contemporary times,the study of legal discovery has been around for thousands of years.As for the interdisciplinary research method,it is not enough to study the path of legal discovery by using legal knowledge only.Researchers must have a certain understanding of relevant psychological knowledge,especially cognitive psychology.Only by applying the cross-study of law and psychology to legal discovery,can we study the legal discovery better.The basic idea of this thesis is to affirm the role of intuition in the process of legal discovery.Both the “intuitive determinism” of legal realism and the “rule determinism” of legal formalism go to extremes.Therefore,we should take into all factors affirming the role of institution in legal discovery and treat it dialectically instead of avoiding discussing it.Although there may be deviations in the fact-finding process and the law-applicable process,the intuition-induced deviations can be controlled within a reasonable range by individual judges' efforts and institutional constraints.The innovation of this thesis is proposing a standardized legal discovery path(discovery-detection path),revealing the main factors that affect the results of legal discovery,and take various measures to control the deviations.In judicial practice,legal discovery is the process of finding the first premise of legal reasoning.For judges,this is not a one-step process but affected by both emotion and rationality.The“discovery-detection” path fits the judge's actual thinking process and also provides guidance for judges when seeking the best suitable reference.Specifically,this thesis is divided into six parts including introduction and conclusion.The first part is the introduction.This section mainly describes the background of questions,the value of the research,the literature review,the research methods and main structure,the innovations as well as the points that can be promoted in the article.Although the academic circles have conducted certain studies about the legal discoveries,there are few studies for practice,and it is difficult to form a general consensus even for the concept of legal discovery.Therefore,it is necessary to study the path of legal discovery,which can solve some theoretical problems and also guidejudicial practice in a certain extent.Through the above analysis,we know there is a foundation for the writing of this article.The second part mainly points out the significance and approach of studying the path of legal discovery.To study the path of legal discovery,it is first necessary to clarify how to proceed with the research.Is it the rules or the judge's decisions that decides the result of the legal discovery? Is it a logical rational model or an elusive intuition model? Through the answers to these questions,the focus of the research is clarified.The third part mainly describes the “discovery” in the path of legal discovery.The legal discovery path can be described as a “discovery-detection” path in a standardized way.This section mainly introduces “discovery”.Research shows that after the objective facts occur,the inspiring intuition of the judge plays an important role in the process of transforming objective facts into legal facts.Although constricted by evidence and evidence rules,the inspiring intuition guides the judge's judging direction.After the facts of the case are confirmed,the judge will form an initial conclusion based on the empirical intuition,that is,the judge's innermost view of the case.This initial conclusion guides the direction of the judge's judgment.Although contradicted with the traditional “syllogism model”,it reveals the real judge thinking process.The fourth part focuses on “detection” in the path of legal discovery.The judge has completed the preliminary “discovery” work by identifying the facts of the case and finding the basis of the referee.However,can this be directly used to a judgment?Obviously not,the reference of judgment still needs to pass certain tests before being used.The testing process consists of subjective part and objective part: subjective part requires the judge to achieve inner self-confidence through a series of logical reasoning;objective part requires the judge to use some technical methods including finding the law according to the case,finding the case according to the law etc.,only when the reference of judgment passes the subjective and objective test,the legal discovery is done.The fifth part focuses on the deviations and controlments that may occur in the process of legal discovery.From the above analysis,intuition plays an unimaginably important role in the process of legal discovery.However,intuition is unpredictable and uncontrollable.Even in the same case,different individuals may have different oreven opposite intuitions.Therefore,we may feel that intuition is not so reliable.Although intuition may cause bias in the results of legal discovery,it still has its rationality.Through the judge's own efforts and external mechanism constraints,the deviations that generated by intuition can be controlled within a reasonable range.The sixth part is the conclusion.This part summarizes and combs the whole context of the article,and reiterates the importance of intuition in the path of“discovery-detection”.It is believed that although intuition has certain uncontrollability,we can decrease some risks occurred by it through some external means.Then,once again,this thesis addresses the theoretical and practical significance of the path of legal discovery.I believe that the psychological activities in the judicial process will be paid more and more attention by legal circles!...