法律的形式逻辑分析——法律概念与法律适用过程
发布时间：2018-12-13 00:01
【摘要】： 本文以形式逻辑学中的概念及推理理论作为分析的工具(方法)对法律概念及法律适用过程进行了相关分析。分析目的在于明确法律概念、法律概念的确定性、法律概念的作用、法律推理的重要性、诉讼中法律概念、法律条文、法律推理、法律学理论、生活及司法经验的关系,以及明确案件事实与法律结论的形成过程、疑难案件司法专业化与司法大众化及司法能动主义等相关问题。 在本文导论部分,概述了本文的研究方法及本文的研究目的。第二章论述了法律概念的相关特征后对法律概念进行界定,即其指现行有效法律条文中具有特定法律含义的概念,其特定法律含义有三个来源,第一,立法者“借”日常用语或其他专业术语至法律条文时或之后在法律条文中赋予其特定的法律含义;第二,司法者在适用某个法律条文时赋予法律条文中的普通概念特定的法律含义;第三,法律学家创造的且有一致认识的法学术语载入现行有效的法律条文。本章还批判及解释了法律概念的不确定性,得出法律概念的不确定性问题系由主观原因所致。第三章考察了法律适用过程,说明法律适用过程中法律概念如何作用以及参与人进行了什么样的推理,在于描绘法律适用过程的思考“图景”,亦即展现从法律咨询开始经过庭审的开题、质证、辩论之后得出判决(法律结论)的整个思维过程所运用的法律概念及推理过程;并考察了拉伦茨的关于案件事实形成的理论,提出拉伦茨看到了在案件事实的形成过程中(法律与事实之间),法律职业者的法律学理论与生活经验重要性,但却忽视法律职业者在事实与法律之间来回穿梭时最为重要的因素——其掌握并运用的法律概念。第四章则通过解决麦考密克关于充分条件假言命题推理在法律适用过程中的局限性,看清了法律学理论、生活常理和法律推理之间的关系,亦即法律学理论与生活常理在法律适用中的重要性。结论部分将有关法律概念、推理新式、法律的不确定性及司法能动性做了理论总结,并在进一步总结中,梳理了法律概念、法律条文、事实与法律、法律适用过程、法律发现过程,法律推理、法律论证、法律解释、超越法律、实质法律推理、疑难案件、形式法律推理及法律共同体、法律职业化、法律大众化、司法克制主义(法条主义)、司法能动主义之间的关联。
[Abstract]:In this paper, the concept and reasoning theory of formal logic are used as the analytical tools (methods) to analyze the concept of law and the process of its application. The purpose of the analysis is to clarify the legal concept, the certainty of the legal concept, the role of the legal concept, the importance of legal reasoning, the legal concept in litigation, the legal provisions, the legal reasoning, the legal theory, the relationship between life and judicial experience. The formation process of case facts and legal conclusions, the problems of judicial specialization and judicial popularization and judicial activism in difficult cases are also discussed. In the introduction of this paper, the research methods and the purpose of this paper are summarized. The second chapter discusses the relevant characteristics of the legal concept and defines the legal concept, that is, it refers to the concept of specific legal meaning in the current effective legal provisions, and its specific legal meaning has three sources. The legislator assigns specific legal meaning to the legal provisions "by means of" everyday language or other professional terms "when or after the provisions of the law;" Second, when applying a legal provision, the judiciary gives specific legal meaning to the general concept in the legal provision; third, the legal terminology coined by the jurist and has a consistent understanding is enshrined in the existing legal provisions in force. This chapter also criticizes and explains the uncertainty of legal concept, and concludes that the uncertainty of legal concept is caused by subjective reasons. The third chapter examines the process of law application, explains how the concept of law works in the process of law application and what kind of reasoning the participant carries out, which is to describe the thinking "picture" of the process of law application. That is to say, it shows the legal concept and reasoning process used in the whole thinking process of the judgment (legal conclusion) after the beginning of legal consultation, cross-examination and argument. It also examines the theory of the formation of the facts of the case, and points out that he sees the importance of the legal theory and the life experience of the legal profession in the process of the formation of the facts of the case (between the law and the facts). However, the most important factor of the legal profession's shuttling back and forth between fact and law is the legal concept it grasps and applies. In the fourth chapter, by solving McCormick's limitation in the process of law application, the relationship between the theory of law, the common sense of life and the reasoning of law is clearly seen. That is, the importance of the theory of law and common sense of life in the application of law. The conclusion summarizes the concepts of law, the new style of reasoning, the uncertainty of law and judicial initiative, and in the further summary, combs the concept of law, legal provisions, facts and law, and the process of law application. Legal discovery process, legal reasoning, legal argumentation, legal interpretation, transcending law, substantive legal reasoning, difficult cases, formal legal reasoning and legal community, legal professionalization, legal popularization, judicial restraint (legalism), The connection between judicial activism.
【学位授予单位】：云南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
本文编号：2375484
[Abstract]:In this paper, the concept and reasoning theory of formal logic are used as the analytical tools (methods) to analyze the concept of law and the process of its application. The purpose of the analysis is to clarify the legal concept, the certainty of the legal concept, the role of the legal concept, the importance of legal reasoning, the legal concept in litigation, the legal provisions, the legal reasoning, the legal theory, the relationship between life and judicial experience. The formation process of case facts and legal conclusions, the problems of judicial specialization and judicial popularization and judicial activism in difficult cases are also discussed. In the introduction of this paper, the research methods and the purpose of this paper are summarized. The second chapter discusses the relevant characteristics of the legal concept and defines the legal concept, that is, it refers to the concept of specific legal meaning in the current effective legal provisions, and its specific legal meaning has three sources. The legislator assigns specific legal meaning to the legal provisions "by means of" everyday language or other professional terms "when or after the provisions of the law;" Second, when applying a legal provision, the judiciary gives specific legal meaning to the general concept in the legal provision; third, the legal terminology coined by the jurist and has a consistent understanding is enshrined in the existing legal provisions in force. This chapter also criticizes and explains the uncertainty of legal concept, and concludes that the uncertainty of legal concept is caused by subjective reasons. The third chapter examines the process of law application, explains how the concept of law works in the process of law application and what kind of reasoning the participant carries out, which is to describe the thinking "picture" of the process of law application. That is to say, it shows the legal concept and reasoning process used in the whole thinking process of the judgment (legal conclusion) after the beginning of legal consultation, cross-examination and argument. It also examines the theory of the formation of the facts of the case, and points out that he sees the importance of the legal theory and the life experience of the legal profession in the process of the formation of the facts of the case (between the law and the facts). However, the most important factor of the legal profession's shuttling back and forth between fact and law is the legal concept it grasps and applies. In the fourth chapter, by solving McCormick's limitation in the process of law application, the relationship between the theory of law, the common sense of life and the reasoning of law is clearly seen. That is, the importance of the theory of law and common sense of life in the application of law. The conclusion summarizes the concepts of law, the new style of reasoning, the uncertainty of law and judicial initiative, and in the further summary, combs the concept of law, legal provisions, facts and law, and the process of law application. Legal discovery process, legal reasoning, legal argumentation, legal interpretation, transcending law, substantive legal reasoning, difficult cases, formal legal reasoning and legal community, legal professionalization, legal popularization, judicial restraint (legalism), The connection between judicial activism.
【学位授予单位】：云南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
【引证文献】
相关期刊论文 前1条
1 上官家乐;;法律关系分析方法在案例分析中的运用[J];晋城职业技术学院学报;2011年04期
，本文编号：2375484
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2375484.html
