Pragmatic Argumentation Analysis Of Difficult Cases

The guiding opinions of the Supreme People’s court require that the interpretation and reasoning of difficult cases be strengthened,and that the logic of judgment documents be organized,the language be standardized,and the reasoning skills be properly applied to enhance the persuasiveness.For a long time,the court has used judicial syllogism to carry out the reasoning work of judgment documents,but the limitations of judicial syllogism weaken the reasoning effect of judgment documents in difficult cases.Compared with the traditional judicial syllogism,the theory of pragmatic argumentation in the legal context is more practical and flexible.The progressive argumentation can enhance the persuasiveness of the judgment results and meet the reasoning requirements of the judgment documents at the present stage.Therefore,it is necessary to use this theoretical tool to improve the reasoning effect of difficult cases.This paper is divided into three parts.The first part mainly introduces the difficult cases in the judicial judgment.First of all,the definition of "difficult cases" is analyzed in detail,and the research results of famous scholars at home and abroad on the concept are used for reference,including Hart,Dworkin,Shen zongling,Liu Xing,etc.;secondly,the four main types of difficult cases are introduced,that is,legal ambiguity type,legal conflict type,legal loophole type,and legal legitimacy deviation type;finally,from the law respectively The legal system structure,legal reasoning structure,value orientation and legislative efficiency are the four representative aspects of in-depth analysis of the causes of difficult cases.The second part briefly introduces the theory of pragmatic argumentation.First of all,it introduces the critical discussion model under the framework of the theory of pragmatics,which divides the whole debate process into four stages,each stage has specific objectives to be completed,and in all stages,it needs to abide by the ten rules of critical discussion.Secondly,it discusses that the analysis of argumentation is the reconstruction of critical discussion,that is to say,the discourse elements related to opinion differences are included in the reconstruction,which involves the following basic issues: determining the distribution of discussion roles;sorting out the types of opinion differences;making clear the starting point of discussion;examining the arguments;selecting and using appropriate argumentationstructure and argumentation type.In addition,the rationality and effectiveness of the argument are also worthy of attention,and the balance of the two needs to be controlled by strategy.Finally,it shows that there is a logical relationship between the theory of pragmatic argumentation and the argumentation of difficult cases.In fact,the argumentation of judgment documents is a special argumentation.After the transformation of legal terms,the theory of pragmatic argumentation can be used in the argumentation of judgment,and the application of the theory of pragmatic argumentation in the writing of judgment documents can regulate the exercise of the judge’s discretion,so as to improve the judgment Acceptability of documents.The third part discusses in detail how to transform the legal elements through the theoretical tools of pragmatic argumentation,and studies the application path of pragmatic argumentation theory in difficult cases.First of all,it expounds the role of judges in the critical discussion model and the tasks they shoulder,in order to ensure that litigation disputes can be resolved gradually and in stages.According to the division of opinion difference types in the theory of pragmatic argumentation,the classification of opinion difference in different litigation procedures is distinguished.Generally,the opinion difference between the parties in difficult cases is mixed from the beginning to the end,but the opinion difference between the judge and the parties will change due to the different litigation procedures.Sorting out the opinion difference between the parties in the litigation is helpful to clarify the difference The focus of the dispute to be resolved.Secondly,it also explains the argumentation modes of many difficult cases,which are the transformation of the theory of pragmatic argumentation in the legal context,to solve the problem of difficult cases.At the same time,it also introduces the evaluation and balance mode of argument,which makes the abstract thinking process such as the balance of interests and value selection of all parties concrete,and helps the judge to choose the most appropriate legal terms.Pragmatic argumentation provides a theoretical tool,which needs to be analyzed in combination with relevant legal theories such as legal rules and principles.