Legal thinking method is a kind and fair art for professional legal persons, especially judges, to practice law. It is an essential professional skill and skill for legal persons to analyze and solve legal problems and legal disputes. Let me sort out the thinking characteristics of legal persons for you, hoping to help you.
On the characteristics of legal person's thinking
First of all, legal professional thinking has a basic element. We use this element for brain activity. This element is our jargon, namely? French? French? . ? French? French? There are two main sources: one is from the provisions of the law, such as the terms in criminal law: crime, negligence, attempt, suspension and so on. The second is some principles that you will often quote when you find that legal terms are not enough in court and you don't analyze the case thoroughly and deeply.
The second characteristic of the legal profession is the thinking principle of giving priority to procedure. If the school allocates million yuan as a scholarship. I'm going to make one? Excellent academic performance? The appraisal rules. But this? Excellent academic performance? The entity rules of are vague and abstract. So, through my own explanation, I gave 11,111 yuan to the son of a comrade-in-arms and the daughter of a relative. Finally everyone found out. So the headmaster removed me from my post and replaced me with Teacher Xiangwen liu (laughter). Teacher Liu immediately declared my substantive rules invalid and formulated a procedural rule: 1. All 51 students in the class have equal rights to apply for scholarships. 2. In the second week, the class committee will discuss it openly. If there is any dispute, the disputed person will vote in the class. So the scholarship was successfully distributed in the third week. Although one or two students said that he should get a scholarship, they recognized the procedure, so it was equivalent to recognizing the fairness of the result. Everyone knows that I am talking about the legitimacy of the result. The main grounds to support the legitimacy of the judge's trial results are: 1. Legal facts. 2. Legal rules and their interpretation. 3. Procedures that play an extremely important role in persuading the parties. The above is the second characteristic of legal thinking: the principle of procedural priority.
the third feature is that the thinking of all legal persons is quite different from that of the public. That is, legal thinking is to look to the past, not to the future. Looking to the future is the mode of public thinking. For example, investors speculate in stocks, the executive mayor demolishes illegal buildings, improves the city appearance and environment, and even politicians put forward it? One country, two systems? Policies, etc., all foresee the future. Only legal thinking is to look to the past. There are two reasons: 1. All cases in the hands of legal persons happened in the past. 2. The legal basis for legal persons to handle cases, that is, legal norms, were all formulated in the past. Therefore, legal persons do not expect too many changes in society. The basic point of legal persons' thinking in judging cases is the past, and their thinking is conservative.
The fourth feature is that legal professional thinking always comes from the contradiction between two things: 1. Logic in legal category. 2. Reason in the category of ethics. That is, the contradiction between love and law. This contradiction has puzzled lawyers for thousands of years and will continue. Judges will give priority to legal logic when dealing with this contradiction. Under the special cultural conditions of China, the history of the contradiction between emotion and law and the distress of judges have accompanied each other for 4,511 years of judicial history. A Japanese jurist concluded that the three important factors influencing China's laws are sense, emotion and plot. I think we should add a more China-like factor to the three factors: human feelings. Affection is the interpersonal relationship in the acquaintance society. Compared with the developed countries such as the United States and Japan, China is in the stage of formalistic rule of law, which is the primary stage of rule of law. Therefore, when there is a contradiction between emotion and law, Chinese judges should first consider legal logic rather than emotional factors. In the western post-modern society ruled by law, cleaning up emotions was considered as an important factor. In the post-modern countries where the rule of law is quite mature, when there is a contradiction between logic and reason, judges have great power to make laws, and they can exercise their discretion to interpret a legal provision for legislative purposes, or in the sense of sociology. When a judge has such great power, it can be said that reason has been integrated into the law. Therefore, in the stage of formalism ruled by law, we should pay attention to logic. A stage should be defined by its unique characteristics and tasks. Therefore, the judicial reform of specialization and professionalization of judges in China is correct. We should face up to the differences in development stages and not blindly learn from the rule of law and popularization in western countries. When our development goes beyond the stage of formalistic rule of law, we can make the rule of law popular, so as to take both substantive fairness and substantive justice into account.
the fifth characteristic of legal thinking. Is the thinking purpose of a legal person to pursue when judging a case? Really? , the pursuit of truth and truth. But the question is whether we legal persons have the conditions to pursue absolute truth like scientists? No one can fully recover an action made a second ago, let alone an event that happened a month or a year ago. For example, three months ago, a taxi driver was killed on Zhongyuan Road. A hair, two matches, three cigarette butts and four footprints were left at the scene. Can you collect all the evidence? Can you completely restore the scene? Sometimes, evidence will be lost, and legal persons have limited time to handle cases, unlike scientists who can collect evidence and investigate at any time and anywhere. Therefore, we legal persons can only pursue relative truth, that is, the truth constructed in the procedure, not absolute truth. When the court writes a judgment, the facts stated in the judgment are the reconstructed facts, not the facts in the objective world, not the absolute truth, truth and truth. So? Based on facts and taking the law as the criterion? Yes? The truth? It deserves a new explanation.
the last feature is that the final result of thinking and the final judgment result are either/or. Judicial activity is a process of thinking and the most important process of forming a judgment. This judgment is a conclusion, and this conclusion should be either/or. What a Japanese jurist said? One size fits all? Thinking. This kind of thinking will lead to the dissatisfaction of the cut party, but this is the characteristic of the profession and we can't help it. Some people may think that some judges are stubborn and do not know how to mediate, but mediation also needs certain norms to follow. In Japan, the regulation system in judicial activities is more perfect than ours. The imperfection of China's mediation system lies in the absence of a complete set of systematic norms or rules. As a result, the judge engaged in judicial practice? Back to back? Type of mediation. This kind of mediation is not based on the willingness of both parties. What's the opposite of both sides? Program? What's not called? Preface? It is vertical and top-down. ? Program? There is opposition from the other side, which is horizontal. There was a kind in ancient China? Wonderful sentence? , considering the reasonable judgment. We should combine the wonderful judgments of ancient China judges with the legal system of modern China. If we reflect on the ancient Chinese legal system and absorb the wonderful judgment system of ancient judges at the same time, will Confucius praise the road? Break the prison sentence? .
the way of thinking of legal person
1. Thinking of rights
(1) Master Yelin proposed? Fight for rights? . It is believed that fighting for rights is not only the right of the obligee, but also an obligation of the obligee as a citizen to the country and society.
In recent years, there have been many public interest lawsuits, such as Foshan lawyers suing Spring Festival travel rush, the Ministry of Railways, and Tianjin lawyers suing expressway Company for not having a high-speed highway, etc. It is not so much that the obligee claims rights as that he has taken responsibility for the society.
(2) Professor Zhang Pinghua of Yantai University Law School thinks that it should be emphasized in the article "Limitation of Rights from the Perspective of Private Law"? Right standard? Instead of the national social standard, it is not the right standard and the social standard. The restriction on the exercise of rights is not arbitrary. Only when there is a basic restriction on the priority of rights can the exercise of another right be restricted.
In the case of plaintiff Tan Mou v. Chen Mou's wife of the deceased and inheritance of the legitimate children tried by Huizhou Intermediate People's Court, the plaintiff Tan Mou claimed that his mother was suspected of cohabiting with the deceased Chen Mou and gave birth to the plaintiff, and then applied to the court to forcibly extract the body fluids of the defendant (the legitimate children of the deceased and his wife) to prove that he was the illegitimate children of the deceased Chen Mou. As the defendant's agent, Tan proposed that in order to prove that he was born to the deceased Chen Mou and another woman and had the right to inherit Chen's huge legacy, when Chen Mou died without leaving any DNA, applying to the court for compulsory extraction of the body fluids of the children born in marriage would certainly damage the defendant's right to health and personality, and suggested that the court reject the plaintiff's application. Huizhou Intermediate People's Court finally rejected the plaintiff's application, which reflects the right-oriented thinking. This involves the protection of the body rights and personality rights of children born in marriage, as well as the conflict between Tan's right to exist and the protection of property rights. The court finally accepted the right to life and personality over property rights and even the right to life.
2. Legitimacy thinking
Marx once said: The judge's superior is the law. ? Advocating the supremacy of law, therefore, the first consideration in the evaluation of any dispute is the legality evaluation. In recent years, jurists have questioned Sun Zhigang's case, the question that highway departments collect road maintenance fees to support people but not to maintain roads, and the concerns of Guangzhou and Zhuhai about banning mopeds from hearing on the road, all from the perspective of constitutional (legality) review.
3. Pay attention to procedural thinking
Bacon put forward that a wrong referee only pollutes the river, and violating the procedure means polluting the water source. In the western theory of checks and balances that we study, there is the theory of procedural justice that supports the operation of the theory of checks and balances. The autonomy of legal procedure requires us to think and judge within the procedure. Demonstrate the dispute and make it form a * * * knowledge through the procedure of listening to it. Substantive justice and procedural justice are often mentioned together, and the procedure has its independent value. When a dispute goes through all the procedures, it guarantees the equality of the parties' subjective status, the parties' right to make statements and the defend oneself, so the ruling result can usually be accepted by the parties.
The United States spent half a day reading out the names of the dead at the 911 memorial meeting, which caused a sigh that "the original mourning can be carried out like this".
Simpson's case was mainly because the police failed to collect the evidence according to the procedure, which led to the invalidation of the evidence, and Simpson was acquitted. The verdict of this case was generally recognized and accepted by the American people and the families of the victims. But China's Simpson case- Huang Jing's naked death? After five appraisals and trials, the court finally ruled that the defendant was not guilty, but Huang Jing's relatives and all walks of life could not accept the result of the acquittal. Finally, legal experts could only appeal to the defendant. Specific behavior? Whether it constitutes a rape crime has been strictly tried, and all parties should accept its legal effect.
this is about examining ordinary people? Seeking truth from facts? The conflict between thinking and procedural justice of legal person. The legal resources running under the procedure are limited, and the exploration of science and truth has no time limit; As a trial organization, if the court is too close to social prejudice or social pressure, keeps a proper distance from the society and tries cases with the spirit of scientists exploring the truth, then it will not be able to make timely and effective judgments. If people do not understand and accept the concept of procedural disputes, they will not be able to accept the ruling made by the court.
4. Pay attention to logical thinking
Professor Liang Huixing said in an article "How to Learn Law" that law is actually composed of concepts, characteristics, norms and so on, which includes syllogism. Whether it is the judge's judgment, the lawyer's agent and debate, or the prosecutor's accusation, it is inseparable from the application of logical thinking.
(1)? Have fewer children and get rich quickly? ; ? A couple only have one child, okay? ; ? It's the same for boys and girls, and the daughter is also passed down from generation to generation? Why should it be cleaned up? Because these slogans lack the support of life experience and logical rules;
(2) In the case that defendant Lin Weijun was accused of making ice, the prosecutor accused a pot of liquid containing ice as a finished product of ice. As his defender, he pointed out that the accusation was against logic and procedure, and failed to rule out the reasonable doubt. In the end, the court accepted the defender's defense opinion.
(3) Lincoln refuted the plaintiff's witness's testimony and defended the defendant's innocence according to the logical connection of the moonlight characteristics at the time of the crime, the distance between the witness and the defendant and their respective positions, and the change of the defendant's face. It further proves that the legal person's logical thinking is the legal person's thinking set.
5. Thinking about the rule of experience
Law has never been a purely logical rule, but an empirical rule for settling down, which comes from the social experience of life and should take care of people's experiences and feelings. Therefore, legal thinking is often in line with the past, which is conservative or even conservative.
(1) In the trial of a couple's divorce case, the young judge was heckled by the original defendant in order to complete the mediation and persuade the original defendant to cherish their feelings and family. However, the juror's grandmother sitting on the side said to the woman: It's not easy for a husband and wife to help each other all their lives, girl. Is it right to listen to your aunt? The woman dropped the lawsuit. This is the lack of life experience of young judges.
(2) The ashtray that fell from a building in Chongqing injured pedestrians. Pedestrians took all the residents above the third floor of the building to court and demanded joint and several liability. Finally, the court could not find out which household the ashtray fell from, and all the residents above the third floor were responsible for pedestrians when excluding those who were not living in the building at the time of the incident. Joint and several liability is a guarantee of social security, which is the result of summing up people's life experience. It is an arrangement of social order and solves the problem that victims can get relief when they are unable to provide evidence.
6. Thinking about the rule of interest measurement
Some jurists advocate the theory of legal interests, weigh the size of each legal interest in disputes, and choose the most important one to protect it. Using popular political discourse is to talk about legal effect and social effect in dealing with disputes. Due to the lag of law, legal but unreasonable and reasonable things often happen, and even the results are not accepted by the public. Therefore, we can't stick to legality. After thinking about rights, procedures and logic, we still have to weigh the interests, so that our lawyers and judges can achieve better social effects. Many rules of evidence are determined from the perspective of interest balance.
(1) A judge in Guangzhou was fined by the traffic police for honking the horn while driving, and was sentenced to lose the case, which involved the conflict between the traffic police's ability to testify and the right to punish. Finally, the judge considered that giving the traffic police both the ability to testify and the right to punish was beneficial to the maintenance of social order.
(2) In the first administrative litigation case of identical national judicial examination papers, the plaintiff Sun Zhenguo sued the Ministry of Justice to cancel the act of confirming the invalid examination results, which involved the conflict between the right to identify identical examination papers and the right to punish them.