民事审判哲学范式初论On the philosophical paradigm of civil trial.docx

1、民事审判哲学范式初论On the philosophical paradigm of civil trial民事审判哲学范式初论（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

2、of the community is a certain paradigm. The judicial paradigm 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 dis

3、putes from the paradigm point of view. adoptFocusing on 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?

4、.Judicial paradigm; trial; mediationThe term paradigm 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 so

5、ciology scientist, brought meaning to sociology and became 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,

6、 controlsThe organization of individual reasoning and 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, basi

7、c views and basic methods provide a common theoretical 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 t

8、he word paradigmAt the same time, it is based on Chinese 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 subject

9、ive and objective relations in the trial - based on factsThe 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

10、 of the case is the trial of the originalReason. Therefore, 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

11、. The subject hereNot only the plaintiff, the defendant, 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 reaso

12、ning process. No matter what authority it isModel or adversary 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

13、the best evidence provided by the law, and make the most 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

14、case, the fact that the case is the minor premise, the 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 st

15、atement, there is not only time interval, but alsoThere 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 fun

16、ctionThe result is that the conclusion is far from the 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 exhibit

17、s a particular preference. For those obsessed with using 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, th

18、en what?To know whether a judgment is close or far from 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 judge

19、Are you sure you can count on it? In the face of the partys 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 ju

20、dges reasoning only appears in the lines between the referees 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 scienc

21、e of metaphysicsThe process of applying the methods of 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 th

22、e case in the lawsuit. If the courtIf judgment is the 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 rela

23、ted to the fact of a particular case, that is, the proposition 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 plain

24、tiff, the defendant owe the claim is true, can makeGrounds 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 pe

25、rmanently and irrevocably eliminated, for example, the 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 disapp

26、earing. And lifeThe word problem refers to a sentence 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

27、 lose its identity at different times and in different 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 understandi

28、ng of objective facts,Judgment, and our knowledge, judgment 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 its

29、elf are neither true nor false, and only the claims of 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 disprov

30、e the others claim.All exact knowledge belongs to science. 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 proce

31、sses are isolated, leaving great and general connections 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。 T

32、his method of investigation was transplanted from into 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 not possible to avoid metaphysics, as it is from static, eternal, dead things.Three. Epistemology: the rules of evidence in tria