On The Application Of Rules Of Experience In Judicial Practice

The rule of thumb is the general abstract knowledge and rules reflectig the objective attributes, and the regular contact between the things, which common people or all the people of certain geographic range have formed and known in the production and life practice. And the rule of thumb is usually a causal relationship with high probability that can be used as a basis in evidence evaluation, fact presumption, and law application. In short, the rule of thumb is universal experience from common people that does not conflict with morality, and shares the features of abstract, objectivity, highly probability, regionalism and infinity. Rule of thumb can be divided into the general rule of thumb and special rule of thumb by the sources of knowledge, which have cognitive and constraint function in the process of judgment. However, the rule of thumb has its defects, which is caused by the experience itself. It is due to its probability instead of rigorous logic, the rules may have been wrongly used. Thus applying the rules should meet certain conditions. Besides, when the authenticity of case evidence is unknown, the rule also need conform to the requirements of applicable principles. So there is no doubt that the rule of thumb is irreplaceable of playing a positive role status in the judgment.Applying rule of thumb into the judicial trial has a stable basis of theory and system, although there is an imperfect system with certain provisions. Whereas, experience comes from daily life and is easy to be widely accepted, so it has its universal basis and the applicable necessity. The application of experience, from evidence and facts presumption, law selection to the judge’s sentence, can be applied all through the litigation process. And It is constrained from the basic principles in the operational process, which includes the "anti-immoral principle", the "universal understanding principle", the "one counter-example principle", the "consistent scientific understanding principle" and the "consistent multi-experience principle" The basic part of application principle must be abided by the judicial practice as it is the guarantee of limiting the judge’s discretion. Violating the applicable principle of the rule of thumb should be prescribed as reasons for appeal, which should be confirm in the provision of institution.The suitable main body for the rule of thumb is the judge, the parties and their agents or defenders who have the right to apply for the application to the judge. The rule of thumb has function in both fact judge and law judge. And its role in civil litigation and criminal litigation will be different. The application is more common and is expressly stipulated in civil litigation, while more restrictive in criminal litigation---it is not only the severity and the tolerance requirement of the criminal law, but also the embodiment of the basic principles of criminal law.As the most important the consequences, the rule of thumb cannot shift the burden of proof and should endow the disproof obligations of inference on the adverse party.