论家事裁判修辞说理的运用

Application of Family Referee Rhetoric Reasoning

家事裁判修辞说理是司法实务部门探索强化家事裁判文书说理性的一项新举措,但同时实践中出现的不当修辞、修辞与法律相脱节等问题也应当予以重视。家事裁判修辞说理的正当性基础在于,家事案件是修辞说理的主要场域,这是由家事纠纷的特质决定的,但由于修辞说理的主观性及修辞说理与家事裁判的目的不尽一致,注定了家事裁判修辞说理的应用存在一定的限度。为促进家事裁判修辞说理机制的完善与发展,应坚持修辞说理的适恰性标准、修辞说理的合法性底线、修辞说理的情感性内核、修辞说理的规范性表达。

Family referee rhetoric reasoning is a new measure of judicial practice to explore and strengthen the reasoning of family affairs, but at the same time, the problems of inappropriate rhetoric and rhetoric divorced from law in practice should be taken seriously. The legitimacy of family referee rhetoric reasoning is based on the fact that family case provides the stage for the rhetoric reasoning, which is determined by the characteristics of family disputes. However, due to the subjectivity of rhetoric reasoning and the inconsistency between rhetoric reasoning and family referee on purpose, there are certain limits to the application of the rhetoric reasoning. In order to promote the perfection and development of family referee rhetoric reasoning mechanism, appropriateness can be used as the standard of rhetoric reasoning, legitimacy can be used as the bottom line of rhetoric reasoning, affectivity as the core of rhetoric reasoning, and normativity as the rule of rhetoric reasoning.