| Since the Fourth Plenary Session of the 18 th Central Committee of the CPC put forward the general goal of comprehensively promoting the rule of law,we have firmly walked on the road of rule of law construction,but in the process of the construction of the rule of law,we inevitably encounter many difficulties.The conflict between emotion and law in judicial practice is one of the most typical problems.In this paper,the author defines the conflict cases of the case of the case of the case of the case of the case of the case of the conflict of the case of the case of the law as the subjective "emotion"(individual and public feelings)and the conflict type of the law.Through tracing the source of the case of conflict of the case of the case of the case of the case of the conflict of the case of the case of the case of the case of the case of the case of the case of the conflict of the case of the case of the case of the case of the case of the situation and law conflict,the author found that the conflict between the case of the case of the case of the case of the case of the case of the.In the discussion of how to solve the conflict between the situation and law,the author has noticed the concept of "reason".Through the research of the concept of "reason" and the relationship between "emotion","reason" and "law" in macro and micro aspects,the author realizes that it is "reason" that can solve the conflict between the situation and law in judicial practice or to find the key to solve it fundamentally.Only by taking "theory" as the core concept in modern law system and then adjusting the whole legal system,can we fundamentally solve the problem of conflict of situation and law in practice.So the author demonstrates the importance of "reason" in the legal system and the necessity of taking "reason" as the core concept,and summarizes the causes of conflict between the situation and law.After the important position of "reason" is determined theoretically,the author puts forward the solution of conflict between the situation and law in the theoretical level and judicial practice,and puts forward the judgment standard of "reason" in judicial judgment.The author believes that the judgment standard of "reason" in judicial practice should be based on the legal principle,and the so-called rationality should also be based on the above-mentioned theoretical research and four typical cases When it is in accordance with the "legal principle".In the case of conflict of situation and law,the legal principle is the "reason".In judicial judgment,the judge should sort out the reason and legal principle of the case,judge whether the reason of the case is consistent with the legal principle,and finally determine which side the reason isIn the first part of this paper,the author first defines the scope of the case of conflict of love law,and discusses the appearance and root of the case.Through tracing the source of the case of conflict of the case of the case of the conflict of the case of the case of the case of the case of the conflict of the case of the case of the case of the case of the case of the conflict of the case of the case of the law of the case,the author finds that the conflict between the situation and the law is very common in the judicial practice.The law contains the emotion,and the integration of the love law is one of the goals of the legislation.But in fact,the.Then in the second part of this paper,before exploring the solution of the conflict of the case of the case of the case,the author through the judicial practice of the typical cases to explore how to solve the case of the conflict of the case in judicial practice,and summed up the four types of cases of conflict of the case law.The author thinks that the conflict types of love and law can be divided into two categories: 1.Conflict between private love and law;2.Conflict between private love and legal principle;3.Conflict between reason and law;4.Conflict between reason and legal principle.In the above classification,the conflict between the pure feeling and the law means that there is no conflict between the feeling and the legal principle,but only with the provisions of the current law.The conflict between emotion and legal theory means that the emotion is not only inconsistent with the provisions of the current law,but also contradicts the connotation of modern legal theory.Since then,the author finds that "reason" has a special position in different types of cases of conflict of emotion and law.After studying many related literatures,I find that many scholars have studied the conflict of situation law from the macro theoretical level,but always use "emotion","law" and "reason" together,and discuss "reason" and "legal theory" as a pair of concepts,rarely single The author discusses the important role of "reason" in the conflict of the situation and law,lacks the attention to the judicial practice level of the society,and lacks an empirical study on how to solve the conflict of the situation and law in the judicial practice level.The theory proposed can not directly solve the conflict of the situation and law encountered in the judicial practice.Therefore,the author holds the theory of "emotion,reason and law" in this paper.The author thinks that as a third party,the "reason" plays a key role in the judgment process of the conflict of the case of the case of the case of the conflict of the case of the case of the case of the case of the situation and law,and has a very important theoretical status and practical value.In order to explore how to solve the conflict cases of the case of the law of the situation with the "reason",the author explores the concept connotation of the theory in the third part of this paper.The author finds that the connotation of "reason" is changing with the development of the times.In summary,there are three explanations:one is the reason of all things;the other is the principle of human relationship;the third "theory" can be understood as "principle","theorem","axiom" and "Tao theory".The author finds that the concept of "heaven","national law" and "human feeling" is a legal concept that Chinese people have summed up and adhered to in the long-term history of national and social governance,and "rational law" is the legal concept that Chinese people have always adhered to in the long-term history of national and social governance The legal and cultural character of "rational law" is the norm of maintaining the order of our Chinese nation.From the macro legal thinking mode,the reason of reason is a behavior pattern formed by Chinese people in the long-term social life practice,and it is a kind of substantive rationality;while "legal theory" is a formal rationality,which pursues a kind of social justice.From the perspective of micro judicial practice,the ancient "legal system" has a connection and difference with the modern "legal system" : both adhere to the trinity of the big law view and the reasonable justice view;but in the modern "law system",the concept connotation of "emotion","reason" and "law" have changed,and the two are not the two However,the integration of the two systems has resulted in gaps due to the introduction of modern formal rationality;the substitution of "reason" instead of "Tao" has become the largest concept in the legal system;while "law" replaces the position of "human relationship" and "reason" in the legal system,and becomes the core concept,but it can not play an adjustment role in the whole legal system,and then all kinds of contradictions are externalized into the conflict of emotion and law.After the scholars have made corresponding research and Exploration on the reason,they have faced the influence of the concept of "rational law" on our modern rule of law,so many solutions are put forward to solve the conflict of emotion law by "reason".But this is not the root of the problem,and the concept of "reason" has not been excavated.Through the research of the concept of "reason" and the relationship between "emotion","reason" and "law" in macro and micro aspects,the author realizes that it is "reason" that can solve the conflict between the situation and law in judicial practice or to find the key to solve it fundamentally.Only by taking "theory" as the core concept in modern law system and then adjusting the whole legal system,can we fundamentally solve the problem of conflict of situation and law in practice.Therefore,the author demonstrates the importance of "reason" in the legal system and the necessity of taking "reason" as the core concept,and summarizes the causes of conflict between the situation and the law:first,fundamentally speaking,the power of law as the core concept is limited,and it can not play an adjustment role in the whole legal system,so the whole legal system is in an unbalanced state,and the core concept is missing The conflict between the case of the law and the situation is fundamentally caused;secondly,from the middle level,the change of the connotation of the legal principle causes the crack between the legal theory and the morality,which leads to the contradiction between the legal principle and the reason,and then the contradiction becomes the contradiction between the emotion and the law;finally,from the surface,the opposite concept of the absolute contradiction between the situation and the law and the tradition of the judge of the law not accepting the feelings in the judicial practice are directly related The direct reason of the conflict of situation and law in judicial judgment.After the important position of "theory" is determined from the theoretical aspect,the author tries to propose the solution to the conflict of the situation and law in the judicial practice according to the above theoretical research and four typical cases.In theory,we can propose solutions based on the three reasons of the conflict between the case and Law: first,we should pay attention to the concept of "theory" fundamentally,realize the important irreplaceable role of "theory" in the traditional and modern legal system,and further study and excavate its concept connotation in theory,combine "law" and "theory" to make a deeper study and mining on its concept connotation,combine "law" and "theory" as a whole The core concept adjusts the legal system together,makes the judicial judgment result incline to the "central axis",and realizes the unity of substantive justice and formal justice;secondly,the basic concept research of legal theory and reason is improved,the connotation and extension of modern legal theory and rational concept are clarified theoretically,the education of rule of law is strengthened,and the legal thinking and law of the people are popularized The consciousness of law accepts the new concept of "rational law" in modern society of rule of law;finally,in judicial practice,we attach importance to the factors of "emotion" and "reason",and take "emotion" into consideration on the basis of pursuing legality,and finally realize reasonable judgment.In the specific judicial practice,the author also puts forward a specific judge decision plan: the first step,the judge should conduct qualitative analysis before facing the case,whether the case belongs to the case of conflict of situation and law.Generally speaking,as long as the emotional demands of any party in the case do not conform to the legal provisions,it belongs to the case of conflict of situation law.The second step is to analyze the "feelings" designed in the case qualitatively.If it is personal or group,they belong to the category of private feelings;if they are social empathy,they belong to the category of public feelings.There is a difficulty in judging here,that is,group and social common feelings.The difference is that the scope of the subject is different.In specific cases,judges should make specific judgments based on the specific case.The third step is to judge whether the emotional demands of the parties have "rationality" according to the specific case.The "reason" here refers to "truth",that is to say,whether the emotional demands of the parties can tell the truth in the case and whether the truth is credible or not.The fourth step is that if the "emotion" does not have "reason",then the judge according to law does not need to consider the factors of "emotion";if the "emotion" has "reason",it is in the next step of consideration;the fifth step is to divide the "emotion" into public or private.The author thinks that the judgment standard of "reason" in judicial practice should be defined by the relationship between "reason" of "emotion" and "legal principle".If the reason of "emotion" is consistent with the legal principle,then the "reason" of "emotion" is the "reason" of law.If the result of the judgment is inconsistent with the law,it is necessary to make a certain understanding of the legal provisions,and realize the legal principle and reason in a form of the law;if the reason of "the situation" is in contradiction with the legal principle,then "reason" will be the "reason" On the one hand,we should adhere to the legal principle and judge according to law.Finally,the author also draws the conclusion of the judgment standard of "reason" in judicial judgment: through the research of the concept of "reason" and the analysis of four typical cases,the author thinks that the judgment standard of "rationality" in judicial practice should be based on the legal principle,and the so-called rationality should be in accordance with the "legal principle".In the case of conflict of situation and law,the reason is the place of "reason".In judicial judgment,judges should sort out the "reason" and "legal principle" of the case,judge whether the "reason" and the legal principle of the case are consistent,and finally determine which side the "reason" is.If it is legal,it should be based on the legal principle and take care of the "reason" of the situation;if it is not legal,it shall be judged strictly according to law.The author really has three types of cases of conflict between emotion and Law(excluding the conflict between private and legal principles).Although these three cases are common in judicial practice,I firmly believe that with the improvement of theory and judicial technology,the conflict between emotion and law will be less and less,and the gap between sentiment and legal principle will be gradually closed up until a perfect legal system is formed. |
