案件事實認定中的合情推理研究
發(fā)布時間：2018-08-27 15:14
【摘要】：合情推理是作為一種解題方法由美國數(shù)學家波利亞在其《數(shù)學與猜想》一書中首次提出的。波利亞以歐拉猜想為引，對比論證推理，發(fā)展出合情推理并賦予其基本模式和多角度的應用擴展。其后，合情推理作為一種工具進入各個領域。最具實用價值的當屬法學領域，尤其司法領域，從來就未能和邏輯相分離。法學家越來越意識到單純的形式邏輯已不能滿足實踐的需要，因此將合情推理引入，很多國家將其作為破案的重要工具。但是，鑒于我國的司法現(xiàn)狀，在我國關于合情推理的探討仍是集中于理論層面和偵查階段，較少涉及審判實踐。但是，審判階段是適用法律的重要階段，也是定罪量刑、得出判處結論的關鍵環(huán)節(jié)。而事實認定又是總結偵查階段成果、得出判處結論的重中之重，因此事實認定環(huán)節(jié)又成為審判階段需要重點談論的環(huán)節(jié)。同時，案件事實本身的性質和司法審判自身的特點也決定了單純的形式邏輯無法無所不能的解決好審判階段的所有問題。因此，，在其他國家作為論證推理的補充并成功應用的合情推理在事實認定中的應用值得探討。 本文旨在通過對合情推理和事實認定的理論概括，分析兩者結合應用的可行性，借鑒西方經(jīng)典案例，重新審視合情推理在我國的應用和發(fā)展。文章主要包括四個部分： 第一部分：合情推理之基礎理論。該部分主要介紹了波利亞對合情推理的提出和發(fā)展，并在此基礎上從法理、哲學、邏輯三個不同的角度分析合情推理這一理論產(chǎn)生和存在的基礎。最后具體分析了合情推理的內涵、特征和基本模式，形成一個完整的合情推理理論體系。 第二部分：事實認定之相關理論。該部分先是區(qū)分了社會生活和法律生活中不同的事實分類，在此基礎上明確事實認定的主體、依據(jù)和方法，剖析事實認定的各個環(huán)節(jié)，為之后合情推理應用其中提供支持。 第三部分：合情推理在案件事實認定中的應用。本部分首先從案件本身性質、現(xiàn)存的小前提獲取方法以及合情推理結論的性質三個角度分析了合情推理應用的可行性。然后從證據(jù)的證據(jù)能力和證明力兩個層面分析合情推理在事實認定的核心環(huán)節(jié)證據(jù)認定中的應用。進而根據(jù)實踐發(fā)展提出并分析了合情推理的具體應用模式，并以哈維·克里平案為例，全面分析合情推理在事實認定中的具體應用，從實踐層面肯定其價值。 第四部分：合情推理在事實認定中的發(fā)展與思考。該部分肯定了合情推理在我國司法實踐中的應用，并以一個簡單的案例分析了事實認定環(huán)節(jié)的隱性適用。同時，也提出了合情推理在我國司法審判事實認定環(huán)節(jié)中應用存在的一些問題。最后從證據(jù)學和審判環(huán)境對合情推理的應用完善提出一些建議。
[Abstract]:Rational reasoning was first proposed by American mathematician Poolia in his book Mathematics and conjecture as a method of solving problems. Led by Euler's conjecture, Polia developed reasonable reasoning and gave it basic mode and multi-angle application expansion. Subsequently, reasonable reasoning as a tool into various fields. The field of law, especially the field of justice, has never been separated from logic. Jurists are more and more aware that simple formal logic can no longer meet the needs of practice, so they introduce reasonable reasoning, which is regarded as an important tool for solving cases in many countries. However, in view of the current judicial situation in our country, the discussion on reasonable reasoning is still focused on the theoretical level and the investigation stage, and seldom involves the trial practice. However, the trial stage is an important stage of the application of the law, and also the key link of the conviction and sentencing. And the fact cognizance is the most important point of summing up the results of the investigation stage and reaching the conclusion of the sentence, so the fact cognizance link becomes the link which needs to be discussed emphatically in the trial stage. At the same time, the nature of the facts of the case and the characteristics of the judicial trial itself also determine that simple formal logic can not solve all the problems in the trial stage. Therefore, the application of reasonable reasoning, which is used successfully as a supplement to reasoning in other countries, is worth exploring. The purpose of this paper is to summarize the theory of reasonable reasoning and fact recognition, analyze the feasibility of combining the two theories, draw lessons from western classical cases, and re-examine the application and development of reasonable reasoning in China. The article mainly includes four parts: the first part: the basic theory of reasonable reasoning. In this part, the author mainly introduces the theory of reasonable reasoning and its development, and analyzes the foundation of the theory from three different angles: legal theory, philosophy and logic. Finally, the connotation, characteristics and basic mode of reasonable reasoning are analyzed in detail to form a complete theoretical system of reasonable reasoning. The second part: the related theory of fact finding. This part first distinguishes between the social life and the legal life in the different fact classification, on this basis clear the fact cognizance main body, the basis and the method, dissects the fact confirmation each link, provides the support for the later reasonable reasoning application. The third part: the application of reasonable reasoning in case fact determination. This part first analyzes the feasibility of the application of reasonable reasoning from three angles: the nature of the case itself, the existing methods of obtaining small premises and the nature of reasonable reasoning conclusion. Then the paper analyzes the application of reasonable reasoning in the core link of fact determination from the two aspects of evidence ability and proof power. Then according to the development of practice, this paper puts forward and analyzes the concrete application mode of reasonable reasoning, and taking Harvey Kripin case as an example, comprehensively analyzes the concrete application of reasonable reasoning in the identification of facts, and confirms its value from the aspect of practice. The fourth part: the development and thinking of reasonable reasoning in fact recognition. This part affirms the application of reasonable reasoning in the judicial practice of our country, and analyzes the tacit application of fact determination by a simple case. At the same time, it also puts forward some problems existing in the application of reasonable reasoning in judicial trial fact determination in our country. Finally, some suggestions on the application of reasonable reasoning in the environment of evidence and trial are put forward.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D90-051
本文編號：2207660
[Abstract]:Rational reasoning was first proposed by American mathematician Poolia in his book Mathematics and conjecture as a method of solving problems. Led by Euler's conjecture, Polia developed reasonable reasoning and gave it basic mode and multi-angle application expansion. Subsequently, reasonable reasoning as a tool into various fields. The field of law, especially the field of justice, has never been separated from logic. Jurists are more and more aware that simple formal logic can no longer meet the needs of practice, so they introduce reasonable reasoning, which is regarded as an important tool for solving cases in many countries. However, in view of the current judicial situation in our country, the discussion on reasonable reasoning is still focused on the theoretical level and the investigation stage, and seldom involves the trial practice. However, the trial stage is an important stage of the application of the law, and also the key link of the conviction and sentencing. And the fact cognizance is the most important point of summing up the results of the investigation stage and reaching the conclusion of the sentence, so the fact cognizance link becomes the link which needs to be discussed emphatically in the trial stage. At the same time, the nature of the facts of the case and the characteristics of the judicial trial itself also determine that simple formal logic can not solve all the problems in the trial stage. Therefore, the application of reasonable reasoning, which is used successfully as a supplement to reasoning in other countries, is worth exploring. The purpose of this paper is to summarize the theory of reasonable reasoning and fact recognition, analyze the feasibility of combining the two theories, draw lessons from western classical cases, and re-examine the application and development of reasonable reasoning in China. The article mainly includes four parts: the first part: the basic theory of reasonable reasoning. In this part, the author mainly introduces the theory of reasonable reasoning and its development, and analyzes the foundation of the theory from three different angles: legal theory, philosophy and logic. Finally, the connotation, characteristics and basic mode of reasonable reasoning are analyzed in detail to form a complete theoretical system of reasonable reasoning. The second part: the related theory of fact finding. This part first distinguishes between the social life and the legal life in the different fact classification, on this basis clear the fact cognizance main body, the basis and the method, dissects the fact confirmation each link, provides the support for the later reasonable reasoning application. The third part: the application of reasonable reasoning in case fact determination. This part first analyzes the feasibility of the application of reasonable reasoning from three angles: the nature of the case itself, the existing methods of obtaining small premises and the nature of reasonable reasoning conclusion. Then the paper analyzes the application of reasonable reasoning in the core link of fact determination from the two aspects of evidence ability and proof power. Then according to the development of practice, this paper puts forward and analyzes the concrete application mode of reasonable reasoning, and taking Harvey Kripin case as an example, comprehensively analyzes the concrete application of reasonable reasoning in the identification of facts, and confirms its value from the aspect of practice. The fourth part: the development and thinking of reasonable reasoning in fact recognition. This part affirms the application of reasonable reasoning in the judicial practice of our country, and analyzes the tacit application of fact determination by a simple case. At the same time, it also puts forward some problems existing in the application of reasonable reasoning in judicial trial fact determination in our country. Finally, some suggestions on the application of reasonable reasoning in the environment of evidence and trial are put forward.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D90-051
【參考文獻】
相關期刊論文 前10條
1 秦瑋遠;何向東;;合情推理的邏輯——從歐拉猜想說起[J];安徽大學學報(哲學社會科學版);2007年05期
2 楊波;;法律事實辨析[J];當代法學;2007年06期
3 李宏偉;科學研究的“合情”與“合理”[J];東岳論叢;2001年03期
4 陳金釗;;論法律事實[J];法學家;2000年02期
5 官慧;論皮爾士的假設邏輯[J];湖北行政學院學報;2002年02期
6 杰克Ｖ米切爾ＰＥ,劉子明譯;貝葉斯定理用于決策——由結果推斷原因[J];價值工程;1996年05期
7 張成敏;個案與邏輯認知[J];法學研究;2002年04期
8 鄭永流;;法律判斷大小前提的建構及其方法[J];法學研究;2006年04期
9 張靜;法律推理的邏輯分析[J];探索;2003年03期
10 孫名符,蒙虎;波利亞合情推理的成功與不足[J];數(shù)學教育學報;1998年03期
本文編號：2207660
本文鏈接：http://www.sikaile.net/falvlunwen/falilunwen/2207660.html
