First of all, we should introduce the case, then we can make a legal analysis of the case, and then explain the legal basis in detail. In legal analysis, we can cite legal basis. Finally, it is a summary judgment result, which can be summarized.
There will be many controversial cases in handling cases, and judges, prosecutors and lawyers have different understandings of the cases and different handling methods. Even the academic and practical circles have different ways of understanding and handling such cases.
The main purpose of writing such cases is to form * * * knowledge through discussion and better handle such cases. Therefore, writing such cases should first be a topic that can summarize the controversial issues. The title should be short and clear, and directly point out the substantive issues of the case analysis. Don't be too long or unclear, so that people don't know what to say after reading it.
Second, write the main idea. The gist should be a summary of the final conclusion. The characters are generally controlled at about 150, and the conclusion of the meaning of the rules is summarized with concise language and clear views.
Third, describe the facts of the case. In the text, the facts of the controversial issue should be described completely and clearly, especially the details and facts related to the decision of applicable law and the result of case handling, so as to avoid misunderstanding or misleading after reading.
Fourth, comprehensively introduce different viewpoints and reasons. The different views here generally refer to the mainstream views, rather than listing all the different views one by one.
When introducing different viewpoints, you must check them with the articles or books that put forward this viewpoint, and don't take them out of context, let alone distort others' viewpoints. In addition, the source should be indicated so that editors or readers can find and check the original text.
Fifth, demonstrate.
First, determine the meaning of the applicable legal provisions. If there are differences in the understanding of legal provisions, the basic methods of legal interpretation, such as literal interpretation, purpose interpretation, historical interpretation and system interpretation, are used to determine the meaning, scope, application and conditions of applicable relevant legal provisions;
Second, the original intention of legislation is analyzed theoretically from different angles, and whether there are loopholes in the legal provisions themselves and whether they need to be repaired.
Third, if other laws are involved, the relationship between this legal provision and other legal provisions (including whether there is any conflict) should be clearly discussed;
Fourth, issues involving history, culture, economy, customs and traditions should also be analyzed from these angles according to the relevant provisions of relevant laws, regulations and policies at that time. For example, cases involving natural resources such as land and forests should be analyzed according to the land system and laws, regulations and policies at that time;
Fifth, the social effects of different treatment methods and so on.
If there are differences between the facts and the evidence, we should start from the principles of relevant evidence rules, analyze the effectiveness of the evidence provided to the parties in the trial investigation, and confirm the facts of the case according to the effective evidence and the evidence identification rules.
For example, writing "Can an employee whose death is unknown during business trip be considered as a work-related injury —— Analysis of the case against the Labor and Social Security Bureau of Linqing City", analyzes it from three aspects: the legislative purpose of the Social Insurance Law and the Regulations on Work-related Injury Insurance, the burden of proof in administrative procedures and the scope of proof in litigation;
Thus, it is concluded that "if the cause of death of an employee during a business trip is unknown, and the evidence provided by the employer or the social security department cannot exclude the non-work-related cause of death, it shall be recognized as a work-related injury according to the provisions of Item (5) of Article 14 and Paragraph 2 of Article 19 of the Regulations on Work-related Injury Insurance".
In legal argumentation, many comrades like to use comparative methods to analyze and demonstrate. There are three ways of comparison: first, compare foreign laws with Chinese laws to solve the problem of legal loopholes. This method is very helpful to broaden the thinking and find a better processing path.
But each country has different national conditions and different legal systems. Therefore, when introducing foreign laws, we must clearly introduce the social background, the meaning, scope and conditions of application, and the applicable social effects of the relevant laws and regulations. Otherwise, it is difficult to compare and predict whether there are problems such as acclimatization when transplanting foreign legal provisions to China.
The second is to compare the handling of similar cases abroad with controversial cases. When using this method, we must clearly introduce the facts of similar cases abroad and whether they are really similar to controversial cases. In addition, the national conditions and customs of the country should be clearly introduced. Because of the different national conditions and customs, it is difficult for foreign countries to learn from them.
The third is to compare the advantages and disadvantages of other domestic courts in dealing with similar cases and find out the best way to deal with controversial cases. It should be noted that China is a vast country, and there are many differences in economy, culture, religious beliefs and customs. The above factors can not be ignored in the analysis, otherwise, orange in the south and orange in the north.
Generally speaking, you should put forward your own conclusive opinions on controversial cases, and you can't have no conclusions or vague conclusions. If it is really difficult to draw a definite conclusion, we should also put forward biased opinions.