Type Of Negotiating Legal Argumentation

The theory of legal argumentation raises in the western academic circles since twentieth Century sixty or seventy’s. But most of the study of the theory of legal argumentation in China is the translation and introduction from the western scholar’s research achievements since recent twenty years. As an important branch of legal logic, Most of Chinese study on the theory of legal argumentation is limited to the perspective of formal logic. The perspective of formal logic is the basis of legal argumentation theory, but has certain limitations. Although it is a very good solution to the form of legitimacy of legal argumentation, not only ensure the authority of the premise, but also provide strong persuasive to conclusion. The legal argumentation under the guidance of the rule, protects the legitimacy of the form, but ignores the rationality of essence. In order to make up this defect, the author introduces the legal negotiating theory, and put forward the definition of the negotiating style legal argumentation based on the legal negotiating theory. Including the media, the steps, and the subject, and focuses on the procedure, rules and evaluation standards of the negotiating style legal argumentation, thus construct the basic framework of the negotiating style legal argumentation. Do preliminary analysis of the specific role of negotiating style legal argumentation in the field of legislation in China. Explore the fit of negotiating style legal argumentation and negotiation mechanism of legislation in China. This paper mainly discusses from the following four parts.Firstly, this part expounds the problem consciousness and function of legal argumentation, and taking Holland jurist Feteris’s classification method of legal argumentation approach as the standard, introduces the research approach of western theory of legal argumentation. In order to combine with the status quo of China legal argumentation theory, discuss the shortcomings and limitations of traditional formal logic argumentation methods in China.Secondly, this part will put the legal argumentation theory into the perspective of legal negotiating theory Introduces Habermas’s legal negotiating theory and Alexy’s legal argumentation theory, Then make a comprehensive evaluation of the legal negotiating theory and point out its significance to the study of the legal argumentation theory.Then, this part combine with the legal negotiating theory, puts forward the basic framework of the negotiating style legal argumentation. Full the basic structure of the negotiating style legal argumentation from the aspects of the definition, characteristics, rules, procedures and evaluation standards.In the last chapter, the author tries to explore the specific application of the style legal argumentation in the field of China’s legislation, combined with the characteristics and demonstration rules of negotiating style legal argumentation, discuss the existing defects and development direction of China’s legislative negotiating mechanism.