浅析经验法则不当运用及其规制

On Misuse of Rule of Thumb and Its Regulation

经验法则的运用在司法审判中起着至关重要的作用,但因其运用依赖于法官的主观判断,所以实践中,经验法则不当运用问题常发,而法律在其规制、救济方面规定模糊,此状况有待进一步的改善。通过总结经验法则错误运用的几种类型,提出具有实践操作性的对策建议,并就经验法则适用错误时的救济手段进行讨论。

The use of the rule of thumb in the judicial trial plays a vital role in practice, but because its use only depends on the judge＇s subjective judgment, the improper uses often occur, and law in the regulation and relief has no clear interpretation ,which all needs to be further improved. This paper summarizes several types of misuse of the rule of thumb ,puts forward some practical and operational countermeasures and suggestions, and discusses the relief means of misusing the rule of thumb.