Study On The Application Of The Principle Of Similar Case Adjudication

As for the application of "analogy","essence of things" and "type thinking" in the process of legal discovery,it is a methodology practice in a specific legal field after the theoretical construction is clear.Because in the real world,nothing is exactly the same as the two,it is necessary to treat different things in the same way with an important point of view as the standard."The same treatment of different things" is the legitimate basis of reasoning from "the same case" to "the same judgment".Through the empirical investigation of the current situation of the application of quasi-case adjudication,three kinds of phenomena can be summarized: the subject of the application of quasi-case adjudication is generally the litigant and the judge is passive in the application and response,the judge applies the "main points of adjudication" type of application method in the situation of quasi-case adjudication,and the fuzzy application situation of "self interpretation" type appears in the process of judicial practice.In view of the above phenomenon and the hot topic of academic discussion,the author summarizes the difficulties faced by the theoretical and practical dilemmas in the quasi-case adjudication as follows: the confusion between the quasi-case adjudication rules and the "case law",and the impossibility and necessity of the quasi-case adjudication.Combined with the practical investigation of the application situation and dilemma of the quasi-case adjudication and the theoretical analysis of various theories in this field,this paper constructs the proper model of the principle of the quasi-case adjudication under the quasi-case adjudication in China: it should neither be pure formal logic thinking(syllogism-inclusion),nor should it be the overall analogy of the case that completely abandons the inclusion logic,the interception and application of the main points of the adjudication,or the general application of the spirit,It should be a compound mode that complements the process of legal discovery in the framework of syllogism with typed thinking.It has the following significance: it is helpful to clarify the obligation attribute of the similar case judgment,to guide the application of the similar case judgment,to escape the fog of the homogeneous case judgment,and to reflect the guiding value of the ordinary case.Type thinking originates from the reflection and criticism of conceptual thinking.Abstract concepts are defined by "exhaustive enumeration" of the features they want to describe,while types are defined by a series of individual features with different classification strengths.Except for a few digital concepts,the legal concept is not clear,there is no abstract and universal concept,only the concept of type and the concept of order.There is no relationship between these concepts,only more or less.Yatu Kaufman’s assertion reveals the universality of the concept of type in legal language.Because in the real world,no two things are exactly the same,it is necessary to treat different things the same with an important point of view as the standard."Analogy" is a universal method for human beings to understand things,not limited to the legal field;"Type" is a mode of thinking,which is also universal;The "nature of things" is the realistic condition for constructing "types" and conducting "analogies".In summary,analogy is the method,type is the premise of method construction,the essence of things is the premise of type construction,and type thinking is the guidance of the thinking rules of this set of methodology.The application of type thinking in the field of law is generally reflected in three aspects: 1.type thinking as a legislative technology;2.Type thinking in the field of legal discovery;3.Type thinking in the field of legal interpretation.The three modes of thinking are essentially the same,but their specific connotations are different.The first category refers to the formation of the characteristics of the legal concept based on the selection of the "evaluation view" of the construction factors of the type,the second category refers to the "life type" that must be traced back to the type of statutory law repeatedly when the law is discovered,and the third category refers to the continuation method to fill the legal loopholes.In response to people’s expectation of "the same case and the same judgment" in judicial activities,we must settle on the type thinking in the field of legal discovery.The "two aspects" of the methodological process of legal discovery are: on the one hand,it adjusts to the facts of life,on the other hand,it adjusts to the facts of life.Chinese classical philosophy has long contained the type thinking path of seeking "what is" instead of "what is".Similar case adjudication is not a betrayal of the inclusion thinking of written law,nor is it the product of the invasion of case law,but a syllogism optimization of the process of legal discovery guided by the type thinking: in the process of the inclusion of the major premise to the minor premise,the judiciary grasps the facts of life in the type preset by the legislator in the legal norms,so as to correctly evaluate it;In the identification of similar cases,the judicial personnel make legal evaluation on the life facts in the case to be decided and the case to be decided respectively,and draw up and process them into legal facts,so as to compare them,determine whether they are the same or similar,and whether they can be included in the same evaluation.If so,the pending case(or part of the case facts)can be directly replaced by the minor premise of the case to be decided,so as to omit the process of argument and draw conclusions.This model helps the judiciary to discover the premise of legal norms,and at the same time,it also responds to the logical integrity of the three paragraphs of the pending case itself.According to this,the reasons for the occurrence of unjust,false and wrong cases in the process of legal discovery are further clarified: first,the judiciary failed to correctly understand the types preset by the legislator in the legal norms,and there were errors in the process of inclusion;2、 The judiciary failed to make a correct legal evaluation of the final case and the life facts in the preliminary case,which led to the error of analogy,that is,the wrong choice of "similar and identical" preliminary case,the replacement of the pending case into the wrong syllogism system,and the wrong failure to carry out the independent syllogism inclusion reasoning,thus transferring the wrong judgment results of the previous case.To sum up,the application of type thinking is more in the process of legal discovery than in the process of legal interpretation.Based on this,the principle of application of case-like adjudication can effectively solve the problem of neglect and deviation of case-like adjudication rules in the judicial field.