Research On The Application Of Laws Of General Experience In Criminal Trial

"Fact determination is the product of the interaction between evidence and the background and experience of the fact examiner." Practical reconciliation of the dynamic relationship between objective evidence and subjective inference is the basis for accurate facts.From this,the concept of "laws of general experience" came into being.At present,Chinese criminal trials have a clear tendency of "over-objectification of evidence judgments," while academics and practical circles have seldom paid attention to the laws of general experience.Therefore,it is urgent to conduct research on the rules of experience in criminal trials and awaken free evidence in criminal trials.The role of the media returns to the evidence referee doctrine of a balanced subjective and objective.This article starts with the basic theory of laws of general experience,combined with the current situation and problems of applying laws of general experience in criminal trials in our country,and explores the proper way of laws of general experience in criminal proceedings.In addition to the introduction,the full text divided into five chapters with approximately240,000 words.The first chapter is "the basic theory of the laws of general experience".It mainly includes four aspects: The first is an overview of empirical theory.From the end of the 16 th century,the "empirical" philosophy discussion produced the epistemological division of empiricism and rationalism,and post-empirical philosophy also experienced the vertical development of materialism to idealism,cognizance to agnosticism,and absolute rationality to relative rationality,all of which gave rise to legal science colossal influence.The second is the primary connotation of the laws of general experience.From the perspectives of comprehensive semantic analysis,etymology investigation,and elemental interpretation,the laws of general experience has two levels of connotation: first,the general level,the laws of general experience is the Knowledge or law that people summarize and abstract from experience facts.These Knowledge or laws can reflect the standard attributes of things and the probabilistic connections between things;secondly,at a specific level,the laws of general experience in the judicial proof process is the regular Knowledge of the judge’s subjective identification,and essence is the judge’s individual experience.The laws of general experience consists of a high-level experience extracted from experience.Common sense,common sense,and common sense are essential parts of the laws of general experience.The laws of general experience is different from the rule of logic,and the two together form the reasoning basis of judicial proof.The third is the core feature of the laws of general experience.The core feature of the laws of general experience is probability.The deterministic attribute of possibility gives the law of experience a legitimacy status in judicial proof,and the uncertain quality of chance determines that the rule of expertise has only a flexible effect in judicial confirmation.The fourth is the classification of empirical rules.There are three primary classification standards: the level of probability,the scope of content,and the application mode.The second chapter is the "principle of the application of the laws of general experience".It mainly includes three aspects: the first is the logical principle of the laws of general experience.There are formal logics such as deductive reasoning,inductive reasoning,analogical reasoning,and non-formal logics such as plausible reasoning and hypothetical reasoning in judicial proof.The laws of general experience mainly used as the central premise of quasi-deductive reasoning and the basis for establishing the hypothesis of plausible reason in judicial confirmation.The second is the structural principle of the laws of general experience.The criminal justice proof structure is a combination of Toulmin’s "evidence inference model",Wigmore’s "fact-level transmission model",and "the three-level model of prosecution and defence".The laws of general experience mainly plays the role of emotional connection in the prosecution proof system,the abnormal defence function in the defence proof system,and the judge’s proof system’s neutral judgment function.The third is the evidence principle of the laws of general experience.First of all,the laws of general experience is the implicit meaning of the principle of evidence judgment.Secondly,the rule of experience conforms to the cognitive mechanism of free evaluation,and it is also a restriction factor for a free assessment.Third,the laws of general experience and the proof standards of "inner conviction" and "removal of reasonable doubt" have the same goal by different means.Repeatedly,the corroborative proof itself embodies a kind of laws of general experience,and other rules of thumb cannot be ignored when using the method of corroborating evidence.Finally,the laws of general experience plays the role of inference media in the "presumption of facts" and has an original and contradictory role in the legal presumption.The third chapter is "the current situation of applying the laws of general experience in criminal trials".It mainly includes three aspects: one is the situational investigation of the application of empirical rules.Judging from the case of applying the laws of general experience,the laws of general experience mainly used in drug crime cases,traffic accident cases,fraud cases,intentional injury cases,and theft cases;the application of the laws of general experience is not directly related to the level of the regional economy;since 2012,The application of the laws of general experience has been increasing year by year,and the number had surged in 2018;the second instance procedure uses the laws of general experience significantly more than the first instance procedure.Judging from the case elements considered by the laws of general experience,the laws of general experience is mainly used to evaluate subjective knowledge,personal purpose,causality,crime amount,liability fault,etc.The second is the investigation of the way the laws of general experience is applied.Judging from the use of the laws of general experience of the argumentation,most cases are explained by the argument,which is mainly affected by the type of issue.In argumentation,it can be divided into "comprehensive argumentation" and "concrete argumentation".From the standpoint of applying empirical rules,most of them use negative expressions,and most of them are to negate the defence’s opinion.Judging from applying special rules of experience,the content mainly involves common sense in medicine,finance,computer,and accounting.The defence opinions are rarely rejected after explaining the specific content of the thumb rule and conducting corresponding arguments.The third is the investigation of the effect of applying the laws of general experience.Judging from the verdict shows the characteristics of "high at both ends and low in the middle",and more cases of innocence and cases involving fixed-term imprisonment of more than five years to the death penalty apply the laws of general experience.In second-instance instances,using the laws of general experience,the rate of revision in protest cases is higher.The fourth chapter is "the manifestations and reasons for improper use of the laws of general experience in criminal trials".It mainly includes three aspects: the first is the performance of the lack of applying the laws of general experience.The absence of applying the abnormality review function of the laws of general experience can easily lead to inaccurate fact-finding,innocent innocence,or indulgence in crime.The lack of applying the empirical rule of emotion and rationality can easily cause cases that should meet the proof standard to be mistaken as "suspicious",thus indulging crime.The second is the wrong application of the laws of general experience.Because the application of the laws of general experience lacks objective quantitative standards,it is difficult to judge whether the application is wrong or not in substance.Considering the form,there are two manifestations of incomplete consideration of relevant evidence and insufficient theoretical proof in applying the thumb rule.The third is the analysis of the causes of improper use of the laws of general experience: First,the judge "dares not to use" the laws of general experience because of professional risks;The legislative norms are sparse and "cannot use" the laws of general experience;fourth,judges "cannot use" the laws of general experience because of their limited ability.The fifth chapter is the "guarantee mechanism for the reasonable application of the laws of general experience in criminal trials".It mainly includes four aspects: The first is the primary conditions for the practical application of the laws of general experience.The application of the laws of general experience in criminal trials must meet four fundamental requirements: First,the application of the laws of general experience must follow the principle of proper application;second,the basic facts inferred by the laws of general experience have been verified;third,the reasonable exceptions to the laws of general experience used have been excluded;Fourth,the application of the laws of general experience must strictly follow due process.The second is the normative guarantee for the appropriate application of the laws of general experience.On the one hand,the role and status of empirical rules are clearly defined by law;on the other hand,practical rules are flexibly classified through reference materials.The third is the procedural guarantee for the reasonable application of the rules of experience.There are five main points: first,to implement the parties’ objection rules;second,to effectively play the role of the collegiate system and jury system;third,to gradually improve the verification rules of the special rules of experience;Fourth,implement the referee argumentation system;fifth,scientifically construct a judgment mechanism that uses improper rules of adventure.The fourth is the out-of-litigation guarantee for the reasonable application of the laws of general experience.On the one hand,we must focus on cultivating judges’ ideas and applying the rules of experience;on the other hand,we must correctly guide the relationship between public opinion and judicial trials.