| Reasoning is an important content on the logic, in logic, the reasoning take syllogism as the center, It is the process that combine with the major premise with the minor premise and introduce to conclusions, this process has the features both form of reasoning and conclusions inevitability. Legal reasoning is a Manifestation of logical reasoning in law, Including legislative reasoning, judicial reasoning and other forms, this article focuses on judicial reasoning, judicial reasoning is the people's courts in specific cases, by applicable law, finds that facts of the case, and then combination of the two so as to achieve judicial decision. Reasoning is an important content in the judicial process, it can be said that in any one cases involve reasoning. On the judicial process, Reasoning, according to different criteria can be divided into different types, such as Deductive reasoning, Inductive reasoning, analogical reasoning, dialectical reasoning, and so on, the light of some scholars on the classification of legal reasoning, such as Professor Bodenheimer and Zhang Wenxian, legal reasoning will be divided into analytical reasoning and dialectical reasoning, this article only divided the judicial reasoning generally into the formal legal reasoning and practical legal reasoning, and focuses on the latter.Practical legal reasoning is required by the nature of judicial activities, the purpose of judicial activities determine Practical legal reasoning can not be replaced. However, on current judicial process, the attention and application of Practical legal reasoning are clearly inadequate, resulting in judicial decisions receives very much criticizes about unfair from people, In April 2006,controversial Xu Ting case, the trial including the use of a variety of legal reasoning forms, from this point, defects of the formal legal reasoning can be seen where the practical legal reasoning is necessity, the relationship between practical legal reasoning and judicial practical ration, in response to the uncertainty brought about by practice legal reasoning, and so on. Full-text is divided into four parts:In the first part, analyses the formal legal reasoning is inevitable, but in judicial practice, it has some problem, its can not do anything for shortcomings of law and the flexibility of found facts of the case, it will only repeat mechanistic mistakes, on this basis, as a formal legal reasoning remedies and in order to achieve the cases righteous, the practical legal reasoning came into being.The second part, from running of justice, justice not only to ensure the implementation of national laws, but more importantly is the solution of dispute, the judiciary is essentially a practical reason, through practical reason to form the rationality of judicial activities, so as to realize the value of its justice, practical reason of justice in support of practical legal reasoning necessity, in response to uncertainty of conclusions of practical legal reasoning, this uncertainty arises from the pursuit rationality of judicial activities, it is essentially rational, and its uncertainty is special, it is under the premise of certainty, this is a reflection of the nature of judicial activities and can not take this uncertainty compared with the unlawful or arbitrary.Three part, Empirical study on the status of practical legal reasoning of Chinese judicial process, on the one hand practical legal reasoning are used in our reality, on the other hand, the real application of practical legal reasoning are lack of normative and clarity, actually reflects the practical legal reasoning used not gone far enough in our country and need to improve.Fourth part, the end of the article, analyses how to use the practical legal reasoning by judges, pointed out the importance of practical legal reasoning, ultimately, take practical legal reasoning as core to build our country's legal reasoning system. |
