裁判上之类比推论辨析

裁判上类比推论的妥当性,取决于裁判者对类比点的选择,以及如何确定被比较个案的特征。与一般类比不同的是,裁判者必须考察法规范所隐含的价值判断,运用评价才能展开法律上的类推。因此,虽然类推适用具有逻辑推论的形式,但其实质是一种可辩驳的论辩性论证。类比推论的关节和难点,是规范事实和个案事实之间的"相似性"判断,这需要裁判者观照构成要件理论和类型理论,综合各种与类推相关的司法技术,在规范与事实、方法与结果之间寻求一种反思性平衡。

Analyses on the Analogical Reasoning in Adjudication

The validity of analogical reasoning in adjudication depends on the fixed points chosen for analogy and the features of the pending case distinguished by the judge.Unlike the general analogy,the judge must investigate the value judgments underlying the legal norms and use his personal evaluations when he applies analogical reasoning in judicial process.Though analogical reasoning having a form of logical deduction,it is a defeasible and argumentative justification in essence.How to decide the similarities between the facts contained in the norms and in the pending case is the sticking point or difficulty of analogical reasoning,and this needs the judge refer to theories of inscapes and types,and handle some kinds of judicial technique to make a reflexive equilibrium between norms and facts as well as methods and outcomes.