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The Application Of The Rule Of Thumb

Posted on:2019-04-15Degree:MasterType:Thesis
Country:ChinaCandidate:Z C LiuFull Text:PDF
GTID:2416330596452211Subject:Litigation law
Abstract/Summary:PDF Full Text Request
The purpose of this dissertation aims to study the ways in which the rule of thumb can be applied in litigation,including the legal interpretation of substantive law and the method of factual determination in procedural law.However,the dissertation focuses on exploring how the rule of thumb can be applicable in factual determination,respectively from points of the three methods of factual determination.In addition to introduction,the text consists of five chapters with a total of more than60000 words.The first chapter is the summary of the rule of thumb and others.This chapter defines the connotation of the rule of thumb and introduces the features of the rule of thumb.Further,this chapter clarifies the concept of the rule of thumb on the basis of analyzing the difference between the rule of thumb and the rule of logic.Furthermore,it is necessary to clarify the relationship between the rule of thumb,empiricism and experience.Experience is the unification of external experience and inner experience.Under the guidance of empirical epistemology,experience is summarized and abstraction into the most common principle,that is the rule of thumb.Among the classification of the rule of thumb,classification based on probability is of great importance,which this dissertation concentrates on thisdiscussing,because the degree of probability of the rule of thumb leads directly to the judge's discretional evaluation of evidence for the inference.The rule of thumb has the functions of determining facts,explaining the substantive law and focusing on factual dispute of the case,especially the three major methods of determining facts in the case: indirect proof,presumption of fact and prima-facie-Beweis.This chapter also explores the constitutive requirements of tort liability of the motor vehicle traffic accident,focusing on the analysis of the causal relationship and the principle of attribution.Not only does the causal relationship need to be explained by the rule of thumb,but also intention and negligence use the rule of thumb.Especially,the duty of care of a good administrator is determined which the rule of thumb plays a key role in judging.Therefore,it is concluded that causal relationship and fault are both inextricably linked with the rules of thumb.Whether in the concrete explanation as a constitutive requirement or the major premise corresponding with the case fact,the rule of thumb influences effectively.The second chapter is about indirect proof of the rule of thumb.This chapter introduces the connotation of indirect proof and clarifies its definition.Indirect proof is a full proof that is Beweis,for which discretional evaluation of evidence must reach a state of conviction.However,presumption of fact and prima-facie-Beweis reduce burden of persuasion and degree of discretional evaluation of evidence.On the basis of the rule of thumb,indirect proof is divided into two types: one indirectly prove that factum probandum is existence;the other indirectly prove that factum probandum is inexistence.Moreover,through the analysis of the functions and applicable conditions of indirect proof,it is found that in the case that direct evidence is difficult to obtain,indirect proof is very important in the method of determining facts,and its application requires certain preconditions.When the rule of thumb is applied to indirect proof,indirect proof is divided into two types on the basis of ways of reasoning: indirect proof of chain and indirect proof of radiation.In the typological analysis,in order to objectify the probability of discretional evaluation of evidence,we introduce the Bayesian reasoning model and prove that the combination of the indirect evidence and the rule of thumb influences theobjective probability by the method of economic analysis of law,which improves the judge's degree of discretional evaluation of evidence.However,the probability of the judge's discretional evaluation of evidence is an objective and subjective reunification as the rule of thumb.Therefore,no matter what type of indirect proof,applying the group of indirect facts rigorously is key in inferring direct facts.In particular,the rule of thumb applicable to inferring process is generally believed by people.Otherwise,it will only lead to conclusions difficult to convince others whether the rule of thumb with low probability is applied or the rule of thumb is applied chaotically.The dispute of the motor vehicle traffic accident runs through this chapter from beginning to end,and illustrates the role of the rule of thumb in the case.The third chapter is the rule of thumb in presumption of fact.This chapter introduces the affiliation of presumptions and presumption of fact,defines the notion of presumption of fact,and discusses presumptive classifications.This chapter also explores the nature of presumption of fact,which belongs to discretional evaluation of evidence,because presumption of fact uses the rule of thumb to determine facts.When the evidence is lacked or it is difficult to fully prove the direct facts,presumption of fact,which uses the combination of the rule of thumb and indirect facts to infer the direct facts to reduce the parties' burden of proof and burden of persuasion,is designed to avoid that the judge's evaluation is difficult to form and that the burden of persuasion must be applied.At the same time,this chapter also analyzes the conditions for the application of presumption of fact with emphasis on the emergence of difficulty of proof.Although there is a view that the application of presumption of fact should be forbidden because the probability of the rule of thumb used vary from conviction to others,which makes others difficult to believe the conclusion,presumption of fact still plays a positive role in determining facts.And it is the basis for the establishment of presumption of fact to apply the rule of thumb with high probability.The direct facts inferred with the rule of thumb in the dispute of the motor vehicle traffic accident mainly focus on fault and causality,and presumption of fact can be used only once in a group of indirect evidences.The fourth chapter shows the rule of thumb in prima-facie-Beweis.This chapter introduces the connotation and nature of prima-facie-Beweis.Prima-facie-Beweis no longer focuses on the details of the development of the thing and deduces other facts by ostensible facts.Since prima-facie-Beweis uses the rule of thumb of typical appearance to determine facts,prima-facie-Beweis belongs to discretional evaluation of evidence as presumption of fact.Prima-facie-Beweis is based on the case and develops,but its way of thinking and reasoning is the same as presumption of fact.Besides,prima-facie-Beweis can reduce the degree of proof of the essential facts,the precondition of its application is the reinforcement of the rule of thumb with exactly high probability.The application of the rule of thumb in prima-facie-Beweis mainly focuses on the determination of causality and fault.Although our country clearly shows that there are not many cases using prima-facie-Beweis,the cases of using the way of prima-facie-Beweis' thinking to determine facts is an objective reality,which is worthy of further study.The fifth Chapter discusses the rule of thumb in discretional evaluation of evidence.Indirect proof,presumption of fact and prima-facie-Beweis are all methods of determining facts in discretional evaluation of evidence.The evaluation for the authenticity of case facts is bound by the rules of thumb.Such constraint is not only manifested in the method of determining facts,but also in the content of discretional evaluation of evidence,that is,the limitation on the relevance of competency of evidence and weight of proof.Once discretional evaluation of evidence violates the rules of thumb,it needs relief,especially when the reasoning violates the rule of thumb with high probability or the probability of result of reasoning is relatively low.The purpose of the rule of thumb applied to discretional evaluation of evidence is to make the judge form a convincing evaluation for inferred results.Therefore,in the absence of direct evidences,the judge should synthesize all the indirect evidences in the case to infer direct facts.Some judges determining facts of cases don't entirely depend on the documents issued by the traffic police department,but a comprehensive case of evidences determines the requirement facts of tort liability.But some judges completely rely on the documents issued by the traffic policedepartment to differentiate legal responsibility of the parties,which brings about a consequence that results and reasons of the judgment are debatable.
Keywords/Search Tags:The Rule of thumb, Indirect proof, Presumption of fact, Prima-Facie-Beweis, Discretional evaluation of evidence, Probability
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