民事審判哲學(xué)范式初論（On the philosophical paradigm of civil trial）

1、民事審判哲學(xué)范式初論（On the philosophical paradigm of civil trial）Abstract contemporary China is in a historical period of social transformation, and the construction of the rule of law requires the judge to establishA professional community, and the soul of the community is a certain paradigm. The judicial p

2、aradigm stipulates that the judge should deal with itCommon basic theories, basic views and basic methods affect the judges knowledge in the process of litigation,Thinking and acting. We should analyze the basic process of trial settlement of disputes from the paradigm point of view. adoptFocusing o

3、n the characteristics of the trial in ontology, methodology and epistemology, we can see the course of the trialHow does the judicial paradigm guide the judges to realize the facts and the legal issues, so as to explore the new paradigm of trial?.Judicial paradigm; trial; mediationThe term paradigm

4、comes from Greek and contains the meaning of common display, which leads to the model and model,Paradigm equivalence. This word has a long history and has many meanings in different times and in different fields. American SocietyThomas Kuhn, a sociology scientist, brought meaning to sociology and be

5、came a member of a particular communityThe sum of accepted beliefs, accepted values, and techniques. Edgar, a French scholar, thinks that onePeople recognize, think, and act on the paradigm that culture is written on themselves. It guides, rules, controlsThe organization of individual reasoning and

6、the organization of those who follow the paradigm are systematically organized. Theoretical circles in our country believe thatIt is the common belief of a group of scientists in a particular subject or disciplineTheir common basic theories, basic views and basic methods provide a common theoretical

7、 model for themAnd problem solving frameworks, thus forming a common tradition of the discipline, and for the development of the disciplineSet a common course. Limited to the length and cognitive level of the article, we take into consideration the word paradigmAt the same time, it is based on Chine

8、se legal theory and judicial practice, from ontology, methodology andThe extension of epistemology to define the judge as this community justice paradigm, and as a guide, the trialThe trial process is a tentative exploration.Ontology: the subjective and objective relations in the trial - based on fa

9、ctsThe German philosopher Kant will be a rational person called chasing making primitive ability, and primitive, is placedIn the first thing. For the judge as a typical rational person, the fact of the case is calledThe ability to trace the facts of the case is the trial of the originalReason. There

10、fore, in ontology, the trial attaches importance to the relationship between subject and object, and regards object asThe object of being outside is the object of human being, and the subject uses the object of understanding to conquer the object. The subject hereNot only the plaintiff, the defendan

11、t, but more importantly, the judge: the object here is the fact of the case, tooIt can be said that the object of trial is the dispute that leads to the trial.The subjective and objective relations in the trial are concentrated in a dynamic reasoning process. No matter what authority it isModel or a

12、dversary model, and the action is under the participation of the judge and the parties and their agentsProceed in accordance with legal procedures. The legal experts of both parties and their employ lawyers in their own interestsAct in search of the best evidence provided by the law, and make the mo

13、st favourable explanation to ones own. Judge pressIn the trial procedure, from the fact investigation to the court debate, a formal reasoning process is completed: the application of the legal norms isThe logic of the syllogism, the logic of the case, the fact that the case is the minor premise, the

14、 courts decisionIs the conclusion of this reasoning process.It needs to be explained that the legal norm is not only a logical proposition, but also a judgment of authorityBroken. At the same time, because of the fact of the case and the court statement, there is not only time interval, but alsoTher

15、e is a gap between reality and language. What is more important is that.,The judge as the third party and the facts of the caseThere are different cognitive backgrounds among manufacturers. All this may lead to the failure of formal reasoning functionThe result is that the conclusion is far from the

16、 objective facts, and may also be related to the term of the Party (even the winning party)Far cry from.We are all speculative, instinctively, about the most difficult questions, the least of themThe fundamental exploration of the problem exhibits a particular preference. For those obsessed with usi

17、ng trial case handlingThe judges special preference is questionable: (1) can the legal truth be infinitely close to objective truth? asThe fact that the objective facts of the case have happened, and that the past is impossible to reconstruct, then what?To know whether a judgment is close or far fro

18、m the objective facts? In fact, a court case for a caseThe number of trials is limited, therefore, the courts cognizance of the case is limited, limited trialHow can one possibly approach the objective facts infinitely? (2) the heart of the judgeAre you sure you can count on it? In the face of the p

19、artys active opposition litigation, the judges inner conviction is not only 10000One mistake, I am difficult to detect, but also for the sudden nature of the referee foreshadowed, and more difficult to rule out the peopleReasonable doubts. The judges reasoning only appears in the lines between the r

20、eferees papers and serves as the conclusionCharacterized by finality and argument.Two. Methodology: scientific metaphysics in trial - starting from propositionA court investigation of a court debate - the process of applying the law to the science of metaphysicsThe process of applying the methods of

21、 scientific inquiry. Then, the courts decision is not based on fact, becauseIn a reasoning process, the premise of a conclusion is one or several known propositions, not one or more actual onesRaw facts. The proposition in logic is the fact of the case in the lawsuit. If the courtIf judgment is the

22、process of logical reasoning of syllogism, then it can only be the fact of the case,Of course, it is a true statement of fact by a party, that is, a true proposition. Propositions and facts, the facts of the partiesThe proposition is closely related to the fact of a particular case, that is, the pro

23、position is always about the facts, the subject of the partiesZhang is always on the facts of the case, even the truth of the proposition depends on whether it agrees with the facts, that is, whenAnd only when the defendant not also owe the plaintiff, the defendant owe the claim is true, can makeGro

24、unds for judgment.There have been countless facts at different times, and at the same time, countless different places have taken placeIn fact, these divided facts are specific and unique, and the facts are occurring at the same timeIt will be permanently and irrevocably eliminated, for example, the

25、 fact that the plaintiff has lent the defendant 100 yuan must have been issuedThe fact of borrowing money at a particular time, place, and every detail of borrowing money,Such as negotiation, signing, counting, issued IOUs, side, side also disappearing. And lifeThe word problem refers to a sentence

26、that conforms to certain norms, and some people refer to it as the meaning of such a sentence, but withoutOn how to understand, propositions are related to our language statements, which is our description of facts, and a lifeThe problem does not lose its identity at different times and in different

27、 spaces.The truth itself is not true or false. The so-called objective facts, in fact, is the emphasis on the objectivity of the facts,It does not mean that there is a corresponding subjective fact. A proposition is a statement of our understanding of objective facts,Judgment, and our knowledge, jud

28、gment may be correct, may also be wrong, therefore, the proposition is true and falseBranch. A proposition agrees with a fact, a true proposition, or a false proposition, about the truth or truth of a propositionIn fact, the facts of the case itself are neither true nor false, and only the claims of

29、 the parties are true and falseIn litigation, the fact that the evidence needs to be proved is the fact of the party rather than the fact of the caseObtain a judgment that is advantageous to oneself; need evidence to prove ones opinion or disprove the others claim.All exact knowledge belongs to scie

30、nce. The theory of system science as the object, because it is alwaysIf we divide the whole into parts, we will always have the one sidedness that can not be completely eliminated, namely, metaphysics. holdIn nature, all kinds of things and processes are isolated, leaving great and general connectio

31、ns to investigate,Thus, not from the state of motion, but from the state of stillness; not to think of them as essentiallySomething that is changed, but something that is immutable; not from a living state, but from a state of deathInvestigate。 This method of investigation was transplanted from into

32、 the philosophy by Bacon and RockThe peculiar limitations of the past few centuries, the metaphysical way of thinking. I was clearly the exact knowledge of the law,Belong to scientific category. The trial is to isolate the facts of the case and seize the main line of the application of the lawIt is

33、not possible to avoid metaphysics, as it is from static, eternal, dead things.Three. Epistemology: the rules of evidence in trial - between ideal and realityThe main component of litigation activities is cognitive activity, and it has theoretical support for cognitive activities and EpistemologyHold

34、ing and guiding role, therefore, it is of great significance to adhere to the correct view of truth. The current trial is basically applicableTake the view of truth as guidance. The so-called truth view of conformity theory defines truth from the relation between proposition and objective factWhethe

35、r it is true, facts, things, objects, etc., of cognition, belief, judgment, statements, etc.Correspondence is the criterion of truth. A proposition that conforms to objective facts is truth; otherwise, it isFallacy. Correspondence theory is also called image theory. Truth refers to the unity of an i

36、mage and an object, and it is reality and thoughtThe relation between the semantic form and the semantic object is also one-to-one. 11In our country, based on facts, in the three procedural law, is fixed in the form of basic principlesTherefore, the theory of truth conforms to the law and is the mai

37、nstream view. Correspondence theory of truth runs throughTwo basic questions in modern procedural law: (1) factual problems. For example, the parties cited the Zhang San default.The fact that the judge confirmed, said: this fact and the contract law provides that the facts of default are each otherC

38、onsistent. The two correspond to each other in appearance. (2) legal issues. In the above example,Furthermore, the judge made a judgment on Zhang threes behavior: according to the 107th provisions of the contract law,Zhang San shall bear the liabilities for breach of contract, such as continued perf

39、ormance, remedial measures or compensation for losses. Here tooTo the point of conformity (in accordance with). The conformity here is that the evaluation is consistent with the facts. To be exact, the connectionIt is not between fact and fact, but between evaluation and fact. The definition of the

40、facts of a case,In theory and practice, it has gone through two stages: one is the objective reality stage, and the other two is the legal reality stage. methodLegal truth refers to the fact that the judge uses the evidence to determine the facts of the case, and the legal provisions are deemed to b

41、e trueStandard. 11, the objective truth believes that in judicial activities, peoples understanding of the facts of the case can be fully consistentObjective reality. But the legal truth thinks that people can know the facts of the case in judicial activitiesIn line with objective reality. It is imp

42、ortant to note that in full conformity and conformity are neededMake a distinction. Absolutely consistent, an absolute, no deviation from the agreement, it is an absolute concept;And coincidence itself is a concept of degree, and it implies the possibility of error in itself. Completely consistent.A

43、 special state of conformity, of course, but merely conformity. This is the law of proofPrescribed problem.Thus, on the level of ideas, it can be generalized that they carry out the general sense of the symbolsOn the view of truth. However, strictly comply with or comply fully with, just the pursuit

44、 of judicial proofUltimate goal. In other words, in strict sense, the correspondence view of truth can only serve as an ideal.Then, the western developed countries are judges how to pursue the ideal standard of proof? Throughout the continental law systemThe legal system established by the state and

45、 the common law countries seems to recognize the cover of proof activitiesContingent characteristics are the pursuit of case facts through more rigorous procedural settings. Their verdict, they allIt would be regarded as an objective fact, but not as hot as the truth and objective truth of oursA fie

46、rce argument. 12, the reasons can be attributed to the high professional characteristics and legal system of these countriesHighly technical features. Professional characteristics ensure the professional ethics quality of judges, and technical characteristics meanPursue the true possibility of a cas

47、e by means of a procedure. At this stage, we should pay attention to the theory of legal truthThe negative effects caused by the conflict between the rationality of the scholar and the irrationality of the audienceMisunderstanding of legal truth. ThirteenFour summaryFor the contemporary China, which

48、 is still in the period of social transition, a legal Empire should be built so that the judges can becomeHow long are the princes of the law?! The beliefs and manifestations of the professional community of judges vary greatlyAffect the process. We compare and analyze it from ontology, methodology

49、and epistemology,Get a basic understanding of the paradigm of trial. Limited to the length of the article and academic level, many expositions need to be further studiedElaborate. Historical experience tells us to renew ideas, or to change ideas that impede the progress of historyAnd its concepts have always been an enlightening undertaking to change the status quo. 14, we are still in such an enlightenmentThe times also need to continue to shake off the immaturity, and need to continue to criticize his