The Application And Improvement Of Rule Of Thumb In Guiding Cases

The guiding case not only reflects the judge to identify the facts,the application of the law,but also reflects the judge in the trial of the case to make judgment and ruling.Guiding cases absorb the advantages of case law and are based in China.The collective experience and wisdom contained therein is an important source of judicial experience with Chinese characteristics.Guiding cases need to absorb the rule of thumb and apply it injudicial practice.Summarizing and refining the rule of thumb in guiding cases can promote the generation and development of judicial rule of thumb with Chinese characteristics,elevate the rule of thumb to an abstract theory,and enrich the practical connotation of jurisprudence.The application of the rule of thumb in guiding cases is mainly manifested as explicit application and implicit application.Explicit application focuses on the determination of case facts while implicit application focuses on the application of law.In addition,there are various types of rules of thumb used in guiding cases,including not only general rules of thumb,but also special rules of thumb.The connotation of the rule of thumb has been enriched and updated in the guiding cases,which are embodied in the reversal of the traditional idea of the dead as the big idea,the emphasis on the principle of self-risk and self-responsibility,and the general use of quasi-legal principle for reasoning and argumentation.However,there is no uniform standard for the application of the rule of thumb in guiding cases,which leads to the confusion in the application of the rule of thumb in guiding cases.It is mainly manifested in the fuzzy concept of the rule of thumb,low application ratio,uneven distribution of case types,insufficient reasoning and the like The practical causes of the application of the rule of thumb in the guiding cases are many aspects:the difficult to identify the facts of difficult cases,the contradiction between the strong need of applying the rule of thumb and the weak consciousness of using the rule of thumb,the contradiction between the limited types of cases and the diversity of the rule of thumb,the contradiction between the requirement of careful reasoning and the indescribable characteristics.The practical problems existing in the application of the rule of thumb in guiding cases can be improved from six aspects:first,the case guidance system makes clear the type,premise and standard of the application of the rule of thumb;Secondly,judges should study the application of the rule of thumb in the existing guiding cases.Third,courts at all levels highly recommend the use of the rule of thumb for alternative guidance cases;Fourth,improve the supporting system of applying the rule of thumb in guiding cases,including improving the scope and degree of people’s jurors’ participation in the trial of cases and taking the violation of the rule of thumb as one of the legal grounds for appeal;Fifth,the introduction of legal interpretation method to strengthen the application of empirical rule of reasoning;Sixth,Supreme People’s Court summarize the unique connotation of the rule of thumb in the case.From the level of case study and system study,the content of the rule of thumb can be continuously enriched,which is conducive to refining the rule of thumb of case guidance with Chinese characteristics and enriching the jurisprudence with Chinese characteristics.