A View Of The Use Of The Rule Of Thumb In The Civil Lawsuit Based On Private Lending Disputes

In recent years, the rule of thumb is increasingly put into practice in the civil lawsuits in China. The judge’s presumption of fact and judgment, as well as the evidence and assertion given by the both parties, are closely related to the rule of thumb. However, as a result of the imperfect legislation system and the missing of some rules of evidence, the related law of the rule of thumb is incomplete, and its jud icial interpretation is too simple. Without the efficient regulation and condition for the judges, along with their various self-qualities, two extremes appear in China. O n one hand, there is a lack of the use of the rule of thumb, as some judges are too frightened to apply it for assuming and judging. On the other hand, some judges abuse the use of the rule of thumb, as they act aggressively out of their “excessive free will” when they are judging the fact and applying the law, which do great harm to the legal rights and interests of the concerned parties, pose negative impact on the judicial justice as well as the seriousness of the law. Therefore, the current situation calls for a systematic sortation of the intrinsic mechanism of the rule of thumb, as well as the clarification of the process and the condition for the rule, in order to improve its use in the civil litigation.The first chapter of the essay draw attention to the research topic, by analyzing a civil lawsuit case about “should the borrower pay back the money if the debit note is damaged”. The second chapter gives a comprehensive overview of the basic theories of the rule of thumb. It includes a systematic analysis of its conception, characters and functions, as well as the specific practice of the rule of thumb, its application conditions and process. The chapter three discusses the current situation about the use of the rule of thumb in C hina, and the problems it has in its judicial practice, proposing some feasible measures for the judges to assume and judge the cases. The fourth chapter contains some strategies and advice for improving the use of the rule of thumb in terms of perfecting its targeting system, as well as for strengthening the restraint on the judges when they are applying the rule of thumb.