Research On The Experience Rule

The experience rule is general knowledge or rules about the nature and Status of things and normal links between things, which is based on the experience of daily life after the formation of the abstract. It is, in addition to the laws and regulations, an unwritten rule of finding the facts of the case, evaluating the value of the evidence and being Applicable law right in the proceedings. The experience rule is playing an enormous role and function in civil proceedings. It is not only an important basis and premise of free evaluation of evidence of judge, but also a reasonable constraint. However, the experience rule has its own limitations including probability, subjectivity, and applicable conditional and so on. Therefore, the application of the experience rule must be a reasonable regulation.In China, little article is devoted to theoretical studies of the experience rule. Owing to legislative careless, in judicial practice of the application of the experience rule, there are some cases of not use, or even misuse and abuse. It will be great significance for judges correctly applying the experience rule in the civil judicial practice that How to define the meaning of the experience rule and grasp the nature of it. The purpose of this paper is to conduct a comprehensive carding and a deeper understanding of the experience rule, to further well-defined the fuzzy opinion, to distinguish and demonstrate differences of opinion, and to put forward my proposal how to regulate and promote the application of the experience rule.There are three parts in this paper, including introduction, body, and conclusion. The body has five parts.Introduction: this part introduces the theoretical and practical value researching on the experience rule, Research Status at home and abroad, and the purpose of study and methodology in this paper.The first part of body: study the concept, property, classification, characteristics of the experience rule, and compare it similarities and differences with the related concepts, and clarify the meaning of it.The second part of body: study functions of the experience rule in civil proceedings. Its function has two main aspects: Knowing function and binding function. It is not only the basis and prerequisite for judge finding the facts of the case, but also a reasonable constraint for free evaluation of evidence of judge.The third part of body: study the application of the experience rule. In civil proceedings, from the perspective of the administration of justice, judge is the only main body applying the experience rule. But at common law countries the main body also includes the jury, and our country also includes people's jurors. Litigants and forensic experts indirectly involved in the application of the experience rule, and play an important role of protection and restriction when judge apply the experience rule. The application methods of the experience rule have two ways: Judges decide to apply in accordance with judicial power and litigants draw the attention of the judges to apply.The fourth part of body: study limitations of the experience rule in civil proceedings and how to overcome. Its limitations include probability, subjectivity, and applicable conditional and so on. Analyze Two Legal's measures taken to overcome the limitations of the application of the experience rule. Civil law countries generally regulate by design of procedure, and common law countries generally regulate by legislative of evidence.The fifth part of body: discuss how to improve the system of the application of the experience rule of civil procedure in our country. Study status of legislation and problems of judicial practice about application of the experience rule in bur country. Owing to legislative careless, in judicial practice of the application of the experience rule, there are some cases of not use, or even misuse and abuse. At the same time, put forward my proposal how to regulate and promote the application of the experience rule, including by legislative regulation, process constraint and system-related perfect.Conclusion: the experience rule is a complementary means of judge's finding the facts of the case. The experience rule, together with rules of evidence, logic rules, and the judge's conscience and rational, constitutes the basis of judging case. In civil proceedings, the experience rule is playing an important role. Because of its own limitations, its application must be a reasonable bound.