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法官在做出判决的过程中,并不只是逻辑推理的机器,而是需要运用一定的法律思维。在法律思维的几种模式中,以演绎方式进行的三段论方法缺少对事实与规范之间联系的必要重视,排斥了规范与事实之间的辩证联系;而循环理解的等置模式虽然克服了三段论模式的单向度弊端,但依然可能受判断者对结果选择的影响,为“假推论”提供合法的外衣。唯有结合探求行为者意图的等置模式,才不会使法官停留在其属意的规范与事实当中,才是有效的和法官应有的法律思维方式。
Judges in the process of making judgments, not just logical reasoning machine, but the need to apply some legal thinking. In the several models of legal thinking, the syllogism method deduced by way of deduction lacks the necessary emphasis on the connection between facts and norms and excludes the dialectical relationship between norms and facts. While the equal-pattern of circular understanding overcomes syllogism Mode of unilateral drawbacks, but may still be subject to judge the impact of the choice of results, “false corollary ” to provide a legal coat. Only in combination with the equal mode of seeking the intentions of the actors will it not be possible for the judge to remain in the norms and facts of his or her intention, which is the valid legal mode of thinking that the judge should have.