司法中的可辩驳推理研究
发布时间：2019-05-13 18:21
【摘要】： 法律离不开逻辑。在我国,关于“法律逻辑”的研究为时并不久远,就连“法律逻辑”这一名称的出现,也只不过是20世纪80年代初期的事。法律逻辑研究所关注的核心问题是法律推理。因此,法律推理是不可或缺的法律方法。法律推理可以划分为形式推理与非形式推理。这种划分也得到法学界的共识。形式推理是指在司法过程中,完全按照传统三段论为方法进行的推理,非形式推理是指在法律条文不健全或者规则互相矛盾的情况下,依据价值理由为一定结论的思维活动。二者并不是相互排斥的,相反,形式法律推理和实质法律推理相互依赖、相互补充,共建司法公平和正义。 在非形式化法律逻辑为进路的法律逻辑方法中,出现了许多法律逻辑方法,也是目前法律逻辑学界重点讨论的方法。这其中就包含了以可辩驳推理为进路的法律逻辑方法。虽然可辩驳性推理的研究才刚刚开始,并且也不是很成熟,但是这一理论的确开辟了一条新的研究进路。因此,就很有必要对其进行深入和系统的研究。 本文采用的相比较的写作方法,初步介绍了可辩驳推理的一些特征以及产生的意义。全文除了引言和结束语外共分三个部分:第一部分是概述,回顾了逻辑发展的历史以及逻辑与推理的关系,接着是对法律推理的介绍,主要从形式化推理和非形式化推理两个方向来阐述法律推理的特征。在以非形式化推理为进路的逻辑方法里面,包括可辩驳推理,这样就引导出了可辩驳推理这一概念;第二部分是对可辩驳推理的全面介绍,从这个词的来源到它的产生背景再到它在司法领域的运用,都做了一个全面的论述;第三部分论述的是可辩驳性理论对法律的影响以及现实意义,这样可以增强我们对它的认识,从而使它在司法和人们生活领域发挥更大的作用。
[Abstract]:The law cannot be separated from logic. In our country, the research on "legal logic" is not for a long time, even the emergence of the name "legal logic" is only a matter in the early 1980s. The core issue of the Institute of legal Logic is legal reasoning. Therefore, legal reasoning is an indispensable legal method. Legal reasoning can be divided into formal reasoning and non-formal reasoning. This division has also been agreed by the legal community. Formal reasoning refers to the reasoning which is carried out completely according to the traditional three-paragraph theory in the judicial process. Non-formal reasoning refers to the thinking activities in which the legal provisions are not perfect or the rules are contradictory, and the reason of value is a certain conclusion. The two are not mutually exclusive, on the contrary, formal legal reasoning and substantive legal reasoning depend on each other, complement each other, and jointly build judicial fairness and justice. In the legal logic method with non-formal legal logic as the way, there are many legal logic methods, which are also the key methods discussed in the field of legal logic at present. This includes the legal logic method which takes rebuttable reasoning as the way. Although the study of rebuttable reasoning has only just begun and is not very mature, this theory does open up a new research approach. Therefore, it is necessary to carry out in-depth and systematic research on it. In this paper, the comparative writing method is used to introduce some characteristics and significance of rebuttable reasoning. In addition to the introduction and conclusion, the full text is divided into three parts: the first part is an overview, reviewing the history of logic development and the relationship between logic and reasoning, followed by the introduction of legal reasoning. This paper mainly expounds the characteristics of legal reasoning from two directions: formal reasoning and non-formal reasoning. In the logical method of non-formal reasoning, it includes rebuttable reasoning, which leads to the concept of rebuttable reasoning. The second part is a comprehensive introduction to rebuttable reasoning, from the source of the word to its background to its application in the judicial field, have made a comprehensive discussion; The third part discusses the influence of rebuttable theory on law and its practical significance, which can enhance our understanding of it and make it play a greater role in the field of justice and people's life.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D90-051
本文编号：2476090
[Abstract]:The law cannot be separated from logic. In our country, the research on "legal logic" is not for a long time, even the emergence of the name "legal logic" is only a matter in the early 1980s. The core issue of the Institute of legal Logic is legal reasoning. Therefore, legal reasoning is an indispensable legal method. Legal reasoning can be divided into formal reasoning and non-formal reasoning. This division has also been agreed by the legal community. Formal reasoning refers to the reasoning which is carried out completely according to the traditional three-paragraph theory in the judicial process. Non-formal reasoning refers to the thinking activities in which the legal provisions are not perfect or the rules are contradictory, and the reason of value is a certain conclusion. The two are not mutually exclusive, on the contrary, formal legal reasoning and substantive legal reasoning depend on each other, complement each other, and jointly build judicial fairness and justice. In the legal logic method with non-formal legal logic as the way, there are many legal logic methods, which are also the key methods discussed in the field of legal logic at present. This includes the legal logic method which takes rebuttable reasoning as the way. Although the study of rebuttable reasoning has only just begun and is not very mature, this theory does open up a new research approach. Therefore, it is necessary to carry out in-depth and systematic research on it. In this paper, the comparative writing method is used to introduce some characteristics and significance of rebuttable reasoning. In addition to the introduction and conclusion, the full text is divided into three parts: the first part is an overview, reviewing the history of logic development and the relationship between logic and reasoning, followed by the introduction of legal reasoning. This paper mainly expounds the characteristics of legal reasoning from two directions: formal reasoning and non-formal reasoning. In the logical method of non-formal reasoning, it includes rebuttable reasoning, which leads to the concept of rebuttable reasoning. The second part is a comprehensive introduction to rebuttable reasoning, from the source of the word to its background to its application in the judicial field, have made a comprehensive discussion; The third part discusses the influence of rebuttable theory on law and its practical significance, which can enhance our understanding of it and make it play a greater role in the field of justice and people's life.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D90-051
【相似文献】
相关硕士学位论文 前2条
1 郭永军;司法中的可辩驳推理研究[D];河南大学;2009年
2 李卡;法律实质推理初探[D];河南大学;2008年
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