Improper Application Of Rule And Its Regulation In Civil Procedure

The use of the rule of thumb is the indispensable important means of civil judicial judgment, it is in practice to form an understanding of objective existence. Personal experience in practice is not always able to rise to the level of law. From experience to rule,must have certain conditions, the condition is met, the law level of experience to evaluation of evidence in civil litigation, the fact that plays a role as well as the applicable law. A rule of thumb to some extent is, as it were, a limit and constraints of the experience. Rule of thumb for no doubt gives the power of discretion of judge must have, but the rule of thumb is itself is uncertain, the judge even enjoy this power is not necessarily can make accurate and rational to judge accordingly. Therefore, improper used rule of thumb will often appear. Moreover, the parties as the main body, in the process of the rule of thumb for essential is often overlooked.Face a unreasonable to judge, the parties in civil procedure can't find the corresponding way to relief. In order to solve this problem, the author of the judge improperly used rule of thumb of scanning and analyzes the reasons for the phenomenon. How to improve the system of China's rule of thumb, make its can more properly fit, the application in practice become the focus of this writing.This article includes introduction, text and epilogue three parts, the text is divided into five parts.The introduction part, mainly introduces the research of the current state of the scholars of the rule of thumb, and practice is not the proper use of the rule of thumb in the damage to the legal rights of the parties and the negative effect to society.Text the first part is mainly in the aspect of theory of thumb made overview,emphatically elaborated the connotation, characteristics and properties of the rule of thumb.The text in the second part introduces the rule of thumb in the normal operation of civil litigation, mainly reflected in three aspects: evaluation of evidence, the fact that, interpretation and application of law. In this section, to better interpret the function of the rule of thumb in these three aspects, the author selected the internship in the process of collecting the case on the rule of thumb in some aspects of the role, for example, is intended to point out that the practice of the use of the rule of thumb is conducive to help the judge make a reasonable judge.The third part of the body is the rule of thumb in the civil case in court phenomenon scanning and perspective. First improperly used rule of thumb for civil lawsuit situation of main classification, secondly from phenomenon to find out the sticking point of behind it,made detailed analysis and summary of a number of angles.Text in the fourth part is the countries ?regions? outside of the rule of thumb improper use and its applicable rules and regulations, to the provisions of the two big law countries in the aspect of the rule of thumb has carried on the comparison and analysis, and lists in Germany, Japan and Taiwan to the rule of thumb and inappropriate to apply the applicable rules and regulations;Because of the existence of jury system, common law countries in the use of the rule of thumb is different from the civil law countries ?regions?.This part of content for later reference countries ?regions? outside it laid a foundation.Fifth part is consummates our country some of the thinking system of the rule of thumb.In principle, condition, procedure and system gives some own views. Both on the outside of some of the provisions of the state, there are also based on the perfection of China's current judicial status in some ways, to regulate the rule of thumb applies in civil litigation, safeguard lawsuit activity smoothly.Epilogue part according to the content of this article has carried on the summary finally.Rule of thumb is very important role has been in the field of civil litigation, and to improve the system of the proposed his own view, the key to this function get bigger play, prompted the judge to judge more reasonable fitness, and parties and the legitimate rights and interests maintenance, ensure the effective of litigation activity.