Research On The Experience Rule

The experience rule is the shared experience accumulated in long-term production practices and daily life. The experience rule, as a legal term, has its "particularities" in civil proceedings. Simply put, it’s the basis for judges making civil verdicts based on their knowledge of the rules reflecting the constant conjunction of events. It has its own nature, characteristics and classification. Its procedural value lies mainly in fact finding, legal application and evaluation of evidence. Meanwhile, it has its limitations, so there must be regulations on its application. There’s no rule related to the experience rule in the Civil Procedure Law of the People’s Republic of China. There’s only a brief introduction of the experience rule for the first time in Rules of Civil Evidence, a judicial interpretation document. Due to the lack of necessary detailed rules, there are cases where judges dare not use, abuse or misuse the experience rule in practice. Those cases are detrimental to the justice and authority of our country’s civil justice, as well as the protection of the basic rights of litigants. As a result, judicators should build the right attitude towards the experience rule and change the irrational cases in practice. Plus, there are many disputes over the basic theories of the rule in academia. And there’s little research on the rule under different institutions and in cases of remedies for violation. The lag of theoretical research has directly lead to the fact that the problems in judicial practices can’t be responded to effectively. The rule may seem usual, but in fact it’s closely connected with many basic theories in civil procedure law. The proper use of it after thorough understanding needs to have corresponding institutions.The thesis consists of the introduction, main body and conclusion. The main body is composed of five parts.The introduction states the theoretical research value of the experience rule, its implications, literature review of researches in extraterritorial jurisdiction countries and our country, and the research approach, aim and method of the thesis. It plays a key role in the thesis, paving the way for detailed discussion that follows.The first part of the main body analyzes the current status of the experience rule in our country. It describes the general current status from three aspects:the current theoretical research, judicial practices and legislation. This part focuses on the awareness of existing problems. The fundamental starting point of the thesis is to solve existing problems.The second part is a summary of the experience rule in civil proceedings. This part starts with the etymology of the term and introduces the logic behind the rule-its development in the history of civil proceedings. This part reviews different opinions on the rule’s definitions, and after analysis, brings forward the basic elements of the rule. The part also explores the rule’s nature, characteristics and classification and so on.The third part discusses the application of the experience rule in civil adjudication. First, it discusses the application of the rule in judicial practices. Second, it looks at the application of the rule from the main body’s perspective, with a stress on the dominant power of the judges. Then, it explores the application in proceedings, discussing in detail how to use the rule to conduct fact finding, evaluation of evidence and legal application, so that the rule’s value can be achieved. In the end, there’s an introduction of how to apply the rule and burden of proof when there’s a non liquet. The fourth part discusses the regulations of the experience rule’s application. The part first researches the reasons of the rule’s limitations. Then it introduces how to regulate the rule from different aspects, including the main body, rules of evidence, litigation procedures and external factors. All the above efforts aim to objectify the rule. But the regulation itself is not the target, but a necessary means to better apply the rule. The fifth part discusses the remedies for violation of the rule and the perfection of institutions. It introduces the legislation and theories of remedies for violation in continental law countries. It further analyzes China’s handling of the above remedies. It puts a stress on the author’s suggestions on how to improve the institutions of the rule, including the rule’s legislation, internal mechanism and connection with related institutions.The conclusion summarizes the thesis and emphasizes key issues. The thesis stresses the basic theoretical research of the experience rule. Solving the current problems of the rule requires a deep understanding of its theories. So, only a research based on such an understanding can have its value. The rule has an important status in proceedings. To make full use of it would require a comprehensive system of theories.