Research On The Judicial Application Of The Rule Of Thumb And Its Countermeasures

Experience is the understanding of the phenomenon and external connection of objective things obtained through the sensory organs in the process of direct contact with objective things,and the rule of experience is some unwritten rule refined in the process of long-term production and life practice.Paying attention to the application of rules of thumb in judicial practice is conducive to avoiding the tendency of absolute evidence,but due to the influence of multiple internal and external factors,rules of thumb are often improperly used in justice,which causes serious consequences.Through the analysis and arrangement of the judgment related to the application of empirical rules in the China Judicial Document network,combined with the research and discussion of the academic circle,it is found that the civil theory and judicial practice are not unified and standardized.Taking the private lending case as an example,this thesis demonstrates the problems and reasons of the application of empirical rules in civil justice from the macro and micro dimensions,and puts forward suggestions from the two aspects of rule support and practical implementation.To understand and apply rules of experience,we must first recognize the necessity and legitimacy of rules of experience in judicial application.On the one hand,when facing complex cases,judges use the facts of the rule of thumb,and the rule of thumb,as the intermediary of the facts,realizes the effective proof of the facts.On the other hand,the rule of thumb plays an important role in strengthening the evidence analysis,and becomes the basis for the judges to accept and use the evidence.The rule of thumb and the doctrine of evidence adjudication go hand in hand,and the fact of the case determines that China can avoid the use of anomie and improper judgment to the maximum extent.This thesis examines the current situation of the judicial application of rules of thumb,takes the private lending cases as an example to make data statistics on the judgment,and finds that the application of rules of thumb in judicial practice is inaccurate,dare not use and overused.However,the existing regulations are not clear,the nature of the theory is controversial,the differences in the subject of application and the lack of supervision and relief channels are all difficult to be correctly applied.Therefore,the legislative level should urgently need to find the positioning of the rule of thumb in the rule of evidence.The legality,universality,reliability and causality should be defined as the preconditions for the application of the rule of thumb,the demonstration method of the rule of thumb should be standardized,and the rights(benefits)and obligations of all parties should be clarified.The practical level should improve the relevant supporting system.Improve the cross-examination system;strengthen the reasoning system of judgment documents;strengthen the jury participation system;and formulate the empirical case catalogue.