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在理论探讨与裁判实务中,人们经常会不自觉地将概念涵摄与规则适用在概念或逻辑上等同起来。这既不利于清晰地阐明司法推理的不同环节及其逻辑顺序,也会给本就质疑司法推理客观性的人们留下口实。概念涵摄与规则适用在概念上是有区别的,在逻辑上是不等值的。它们之间存在规范性的联系,即概念涵摄的成立给规则适用提供了推定的理由,这种理由在性质上既不同于初显的理由,也不同于终局的理由。对概念涵摄与规则适用之间区别与联系的澄清,有助于我们思考相关的法理学问题,特别是,它能够使我们在足够清晰的概念基础上谈论法律难题与司法推理的客观性。
In theoretical discussions and refereeing practices, people often unconsciously conceptualize or apply the concept to concepts and logics. This is not conducive to clearly articulating the different aspects of judicial reasoning and their logical order, but also leaves no room for the people who question the objectivity of judicial reasoning. The concept of culprit and the application of the rules are conceptually different and are not logically equivalent. There is a normative connection between them, that is, the establishment of the concept of cul-de-sac provides a presumed reason for the application of the rules. Such a reason is different in nature from the first obvious reason and the final one. Clarification of the distinctions and connections between the concept of culprits and the application of rules helps us to think about the jurisprudence issues involved and, in particular, it enables us to talk about the objectivity of legal puzzles and judicial reasoning on the basis of sufficiently clear notions.