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To Discuss Judgment Thinking in Fact Reconstruction

Author: LiJingRu
Tutor: ChenJinZuo；XieZuo
School: Shandong University
Course: Legal Theory
Keywords: Adjudicative fact Facts refactoring Referee thinking
CLC: D916.2
Type: Master's thesis
Year: 2008
Downloads: 87
Quote: 0
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Abstract


Although the legal thinking is no longer a new issue, but general information on legal thinking, whether theoretical level practice field has not yet formed a mature system and mechanism. The judge is the judge in the legal professional community is an important subject in the judicial process. Judge legal way of thinking has important practical significance for the realization of justice, safeguard judicial authority. Complexity with the law applicable to the unity of the tortuous judges thought process and thought content, the judge decided trial activities must form a common scientific cognitive model, and follow the basic principles and general rules of the Magistrates' thinking, in order to avoid the referee by individual differences lead to the \It is in this sense that the judge in the trial process thinking rational core content of both professional judges and social rule of law, an important manifestation. With the development of society, life disputes become increasingly complex and chaotic, which makes judges rely solely on the process of dealing with disputes is not enough for the application of legal norms, but also in the complexity of the facts of the case through accreditation or constructive as possible to extract the a reasonable co specification referee fact. The judge hearing in the case the referee thinking is not only reflected in the legal application stage legal discovery, legal methods of interpretation of the law and legal argumentation, should be reflected in the established legal framework will be a lot of confused without tailoring the facts of the case refactoring referee fact. In this process, the referee needs to achieve a balance between objectivity and normative. Way of thinking for a long time, most of the discourse on the legal thinking of judges judges focused on the legal process, and less for the judges in the fact-finding exploration of the legal thinking in particular, is the fact that reconstructed. The judge in the case to the referee thinking preparation premise for legal reasoning way of thinking, we are here to focus consideration of the significance of the referee thinking in the minor premise of the work to build methodology. This paper attempts to start from the referee thinking in the operation of the process of fact-finding by state clearly proved and proved state do not know the way of thinking of the role of the referee in the case of the two studies referee thinking in the integration between facts and norms remodeling of the facts, and in this process the main factors constraining the referee thinking, combined with the specific case focuses briefly unknown facts authenticity, the judge of how to apply the rules of evidence, logical reasoning, social common sense as well as professional experience presumption fact For China's current status quo about the facts identified in the system design, proposed the fact remodeling the referee thinking normal operation needs the rule of law environment, and strive to further explore and improve the referee thinking in fact reconstructed to seek effective ways and means.

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