Research On The Application Of The Rule Of Thumb In Civil Procedure

Rule of thumb is usually considered to be the system and law, which people can formed the nature of the thing and causal relationship between each other according to the accumulation of their own life experience and working experience, more specifically, common sense, professional law. The use of the rule of thumb benefit the judge close to people’s lives and people to understand the case, so that it can save the cost, improve the efficiency of litigation procedure, but also can restore the truth, safeguard judicial authority.In the well-known peng yu case, people agreed with the behavior of the use of a rule of thumb. But it formed conflicts between value orientation of case and social values, so that it caused the social attention, public controversy. So the judge in the case not only can use the rule of thumb, but also must be good at using right thumb.Because of the characteristics of concealment, probability, regionalism of the rule of thumb, it is hard for people to grasp the essence of a rule of thumb, so that it can be misused. Taking their own occupational safety into considerations and the influence of the subjective factors such as their own experience, knowledge reserves and cognitive ability, the judge can use the rule of thumb mistakenly. Moreover, the lack of the applicable standards and security mechanism leads to judge use rule of thumb arbitrarily. The solution of these problems is urgent.In order to avoid misuse of rule of thumb and apply the rule of thumb reasonably, this paper refer to a series of basic analysis for rule of thumb, such as the meaning, characteristics of the rule of thumb, comparative analysis with the similarities and differences between related concepts, elements, theoretical basis, the typical cases of right and wrong to use the of thumb, on this basis, there are further analyses on the problems of the civil affairs from the perspective of characteristics of the rule and its limitations presented in the use, and it finds out the internal and external reasons, which contribute to putting forward the measures of the direct and indirection regulations of the rule of thumb. In the meantime, it should perfect the principals, rules, regulations and procedures of the rule of thumb when applied to the civil affairs to achieve the effect of people oriented and judicial fairness.