民事法律适用中的思维模式再构造

传统大陆法系法官所奉行的演绎推理下的三段论思维模式面对简单案件是有效的,但是在疑难案件的审理中,由于三段论推理所要求的逻辑严密性,普适性的法律规则难以保证三段论推理中大前提的"真理性",因此需要对三段论的思维模式进行改造,在法律适用中区分法律问题与事实问题,在法律问题与事实问题的互动中,推动法律适用的进程,从而保证判决的公正性.

Reconstruction of Thoughtcast during the Application of Civil Law

It is effective that the simple case faces the thoughtcast of three sections of theories during the deduction, which the judges in the traditional continental legal countries follow. In the trial of difficult case, however, the general legal provision is difficult to guarantee the "truth" of major premise in the reasoning of the three sections of theories because the reasoning requires logic tightness. So the thoughtcast need to carry on the transformation that the legal application should distinguish the legal question and fact question to promote the press of legal application so as to guarantee the fairness of judgment in the interdynamic of the legal question and question of fact.