On The Normative Application Of Common Sense In Criminal Judicial Judgment

Although common sense is still debatable in the basic theory,it appears very frequently in judicial practice,even in criminal judgment where the standard of criminal proof is higher,and its wide application in practice proves its value and significance.When it is reflected in criminal judicial judgment documents,the concept of common sense is highly abstract and rich in connotation,and it can be used to refer to a variety of interpretations according to different people’s understanding and pragmatic habits.In general,common sense has common referential meaning and can be used in general,it is the basic experience,basic reasoning and basic emotion necessary for the common debate between people.The nature of "common" is determined by the long-term practice of social life and reflects the social cognition of ordinary people.There are many problems in the application of common sense in criminal judicial adjudication because of the vague meaning of words and no clear legal provisions.The common sense used by judges in reasoning is not accurate.They replace common sense with personal or social prejudice,and replace common sense with professional knowledge beyond ordinary people’s cognition.The results produced by using common sense are quite different.The argumentation about common sense is inadequate,the level of argument of judges varies greatly,the judge responds simply to the common sense confession and defense of the litigant or to the protest of the procuratorial organ,or directly does not respond.In special cases,some judges are afraid and unwilling to use common sense,Although the judgments made are in accordance with the law,but it is difficult to achieve the expected goal of improving the acceptability of judgments.There are still many improper uses of common sense in judicial practice,such as excessive use of common sense,application of common sense with evidence divorcing from the factual basis,abuse of common sense,and replacing legal reasoning with common sense to avoid legal reasoning,and so on.In a criminal judicial judgment case,it is three aspects that the application scenarios of common sense are primarily expressed including ascertaining facts of a case,justifying judgmental basis and justifying final judgment.Evidence is the basis of a case.In the scene of ascertaining facts,common sense is mainly implemented and embodied in the evidence rules,judging the qualification of evidence and evaluating probative force,supporting or denying the factual inference with the help of common sense;In the scene of justifying judgmental basis,the common sense principally applies to the interpretation of legal rules,which makes a relatively definite interpretation of some uncertain language and fuzzy concept in legal norms and tests the rationality of the literal interpretation and helps judges to interpret professional legal terms;In the scene of justifying judgment,assisting judges to achieve the overall judgment,where the conviction link is embodied in the attribution demonstration of case facts and the sentencing link is embodied in providing a plausible foundation for the judge for exercise their discretion.To establish a minimal limit for judges to use common sense in criminal judicial judgment,judges should not use common sense in place of evidence,not take common sense as the standard of proof and the basis of judgment.And the article puts forward the standard of applying common sense in criminal judicial judgment.It requires judges to be rigorous and rational,to pursue valid argumentation rather than sufficient argumentation,to follow the cognitive habits of reasoning objects and other possible referee audiences in narration,to realize the connection with judgment reasons and the harmony with other argumentation resources,to adapt rhetoric techniques to specific cases and argumentation scenes,to have appropriate rhetoric style,to combine positive rhetoric with negative rhetoric,and to have simple and rich language expressions.The application of common sense in criminal judgment documents generally follows the argumentation burden rule,rational inference rule,communicative dialogue rule and procedural safeguard rule,and the selection of argumentation rules will be different due to the different subjects and stages of application.The rule of burden of argument requires the judges to bear the different burdens of the argument according to different contexts;the rule of reasonable inference requires the judges to proceed from the evidence and make reasonable inferences using various argumentation types;the rule of communicative dialogue requires the judges ensure that litigants and procuratorial organs communicate and interact;and the rule of procedural safeguard runs through the entire criminal judicial judgment process,including the separation of complicated and simple reasoning of judgment documents,the depth of publicity and assessment and incentive.The limits and standards in the static meaning and the argumentation rules in the dynamic level together provide effective reference for judges to normalize the application of common sense.