The Judicial Application Research Of The Experience Rule

Experience is the lifeline of law, and Holmes, the American Supreme Court justice, said:"the life of law has always been the experience but has never been logic." Whether that the Anglo-American law system derives cases from experience, or that the continental law system uses the experience rule for mental impression, is closely related to it. The experience rule is the internal restraint of the free evaluation of evidence. During the trial, the legitimate use of the experience rule is the reflection of the judge’s basic judicial ability and the reasonable constraint of the judge’s mental impression. To chase the case truth as much as possible, make the judgment accord with public feelings and the spirit of the laws, maximize the close to justice, win widespread public recognition, are all inseparable from the use of the experience rule. However, the inappropriate use of the experience rule will cause the public antipathy and the reverse guidance of social moral and lead to judicial substance injustice.This paper is based on the best resultant force of the following three parts:the proper use of the empirical law, the safeguard of party’s legal interests and the judgment of society’s public order and good custom, so as to reach the balance of interests. Through the analysis of the typical cases, this paper dissects the cases mainly from the following two aspects:the limitations of the empirical law and its application limitations, and analyzes the ways to make proper use of the empirical law. Then this paper raises the following three aspects:the proper use of the preconditions and procedural regulations, obeying the inner conscience as well as conforming to the public order and good custom, as the judgment criteria for making proper use of the legitimacy of the empirical law, and further puts forward the specific suggestions for improving the empirical law.the limitation and problems can be solved, the good being chosen and the bad being abandoned. This can prevent the judge’s peremptoriness in order to better guide judicial practice.