我国刑事司法鉴定程序的若干问题研究
发布时间：2018-08-12 09:23
【摘要】：随着社会的进步和科技的发展,刑事犯罪的科技化和智能化现象也日益增多,刑事司法鉴定对于探明案件真相起着越来越重要的作用。刑事司法鉴定程序的研究是近年来法学界和实务部门日益关注的一个重要问题。在刑事鉴定中,鉴定程序的科学性毫无疑问是保证鉴定结论正确的前提,鉴定的合理性也是保证鉴定结论正确的一个重要条件,且合理的鉴定程序也是审判活动中正确运用鉴定结论的保障。虽然我国于2005年2月28日通过了《全国人民代表大会常务委员会关于司法鉴定管理问题的决定》(以下简称《决定》),但现行的刑事鉴定程序还存在启动程序控辩双方力量失衡;鉴定实施过程中缺少监督,反复鉴定屡见不鲜;法院对鉴定结论取舍不规范等问题。因此,对我国刑事司法鉴定程序进行研究凸显极大的现实意义。 本论文应用文献调查法,整理阐述了刑事司法鉴定程序相关的概念和基本理论,梳理了国外刑事司法鉴定程序的先进经验,比较分析了英美法系和大陆法系的优缺点;应用比较研究法,对比分析了《决定》实施前后,我国刑事司法鉴定程序在启动、实施、质证等方面取得的进展,研究中笔者发现《决定》实施后,我国刑事司法鉴定程序仍存在刑事鉴定启动程序控辩双方力量失衡、鉴定实施过程中缺少监督、质证程序不完善等问题。本文应用总结借鉴的方法,借鉴国外刑事司法鉴定程序的先进经验,从刑事鉴定的启动、实施和质证程序方面提出了完善我国刑事司法鉴定程序的相关建议:在重构我国刑事司法鉴定启动程序方面,保留侦查阶段的刑事司法鉴定启动权并加以完善,并确立公诉机关在这一阶段的主导地位;同时,赋予鉴定活动当事人的参与权。在重构我国刑事司法鉴定实施程序方面,鉴定次数和期限实行“鉴定终局”制,规范鉴定活动的程序及监督管理制度,制定统一的鉴定标准,规范刑事司法鉴定文书。在重构我国刑事司法鉴定质证程序方面,确立刑事鉴定结论审前开示制度和对刑事鉴定人资格及鉴定结论进行审查的制度,并强化鉴定人出庭义务和责任。
[Abstract]:With the progress of society and the development of science and technology, the phenomenon of science and technology and intelligence of criminal crime is also increasing day by day. Criminal judicial identification plays an increasingly important role in finding out the truth of the case. In recent years, the research of criminal judicial identification procedure is an important issue that law circles and practical departments pay more and more attention to. In criminal identification, the scientific nature of the identification procedure is undoubtedly the premise to ensure the correctness of the appraisal conclusion, and the rationality of the appraisal is also an important condition to ensure the correctness of the appraisal conclusion. And the reasonable appraisal procedure is also the guarantee of the correct use of the appraisal conclusion in the trial activity. Although China adopted the decision of the standing Committee of the National people's Congress on the Administration of Judicial expertise on February 28, 2005 (hereinafter referred to as "decision"), there is still imbalance between the power of prosecution and defense in the current criminal identification procedure. Lack of supervision in the process of implementation of the appraisal, repeated identification is common; the court is not standard to the conclusion of the appraisal, and so on. Therefore, it is of great practical significance to study the criminal judicial identification procedure in China. This paper applies the literature survey method to sort out the related concepts and basic theories of criminal judicial identification procedure, combing the advanced experience of foreign criminal judicial identification procedure, and comparing and analyzing the advantages and disadvantages of Anglo-American law system and civil law system. By using the method of comparative research, this paper compares and analyzes the progress of criminal judicial identification procedure in China before and after the implementation of "decision". In the study, the author found that after the implementation of "decision", the author made progress in the aspects of initiation, implementation, cross-examination, etc. There are still some problems in the criminal judicial identification procedure in our country, such as the imbalance of the power of the prosecution and the defense, the lack of supervision in the process of the implementation of the criminal appraisal, the imperfection of the cross-examination procedure, and so on. This paper applies the method of summing up and drawing lessons from the advanced experience of foreign criminal judicial identification procedure, starting from the start of criminal identification. In the aspect of implementation and cross-examination procedure, the author puts forward some suggestions on how to perfect the criminal judicial identification procedure in our country: in the aspect of reconstructing the criminal judicial identification starting procedure in our country, we should retain the right to start criminal judicial identification in the investigation stage and perfect it. It also establishes the leading position of the public prosecution in this stage and endows the parties involved in the appraisal activities with the right to participate. In the aspect of reconstructing the implementation procedure of criminal judicial identification in our country, the number and duration of appraisal should be carried out under the system of "final appraisal", the procedure and supervision system of identification activities should be standardized, the unified identification standard should be worked out, and the criminal judicial identification document should be standardized. In the aspect of reconstructing the procedure of cross-examination of criminal judicial identification in our country, we should establish the system of opening the criminal identification conclusion before trial and the system of examining the qualification and conclusion of the criminal expert, and strengthen the duty and responsibility of the expert to appear in court.
【学位授予单位】：华南理工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D918.9
本文编号：2178630
[Abstract]:With the progress of society and the development of science and technology, the phenomenon of science and technology and intelligence of criminal crime is also increasing day by day. Criminal judicial identification plays an increasingly important role in finding out the truth of the case. In recent years, the research of criminal judicial identification procedure is an important issue that law circles and practical departments pay more and more attention to. In criminal identification, the scientific nature of the identification procedure is undoubtedly the premise to ensure the correctness of the appraisal conclusion, and the rationality of the appraisal is also an important condition to ensure the correctness of the appraisal conclusion. And the reasonable appraisal procedure is also the guarantee of the correct use of the appraisal conclusion in the trial activity. Although China adopted the decision of the standing Committee of the National people's Congress on the Administration of Judicial expertise on February 28, 2005 (hereinafter referred to as "decision"), there is still imbalance between the power of prosecution and defense in the current criminal identification procedure. Lack of supervision in the process of implementation of the appraisal, repeated identification is common; the court is not standard to the conclusion of the appraisal, and so on. Therefore, it is of great practical significance to study the criminal judicial identification procedure in China. This paper applies the literature survey method to sort out the related concepts and basic theories of criminal judicial identification procedure, combing the advanced experience of foreign criminal judicial identification procedure, and comparing and analyzing the advantages and disadvantages of Anglo-American law system and civil law system. By using the method of comparative research, this paper compares and analyzes the progress of criminal judicial identification procedure in China before and after the implementation of "decision". In the study, the author found that after the implementation of "decision", the author made progress in the aspects of initiation, implementation, cross-examination, etc. There are still some problems in the criminal judicial identification procedure in our country, such as the imbalance of the power of the prosecution and the defense, the lack of supervision in the process of the implementation of the criminal appraisal, the imperfection of the cross-examination procedure, and so on. This paper applies the method of summing up and drawing lessons from the advanced experience of foreign criminal judicial identification procedure, starting from the start of criminal identification. In the aspect of implementation and cross-examination procedure, the author puts forward some suggestions on how to perfect the criminal judicial identification procedure in our country: in the aspect of reconstructing the criminal judicial identification starting procedure in our country, we should retain the right to start criminal judicial identification in the investigation stage and perfect it. It also establishes the leading position of the public prosecution in this stage and endows the parties involved in the appraisal activities with the right to participate. In the aspect of reconstructing the implementation procedure of criminal judicial identification in our country, the number and duration of appraisal should be carried out under the system of "final appraisal", the procedure and supervision system of identification activities should be standardized, the unified identification standard should be worked out, and the criminal judicial identification document should be standardized. In the aspect of reconstructing the procedure of cross-examination of criminal judicial identification in our country, we should establish the system of opening the criminal identification conclusion before trial and the system of examining the qualification and conclusion of the criminal expert, and strengthen the duty and responsibility of the expert to appear in court.
【学位授予单位】：华南理工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D918.9
【引证文献】
相关硕士学位论文 前3条
1 谢复泽;论我国刑事鉴定制度的完善[D];辽宁大学;2011年
2 楚圣;论我国刑事诉讼中伤情鉴定制度的完善[D];湖南师范大学;2012年
3 肖露;中德刑事司法鉴定程序之比较研究[D];山东大学;2012年
，本文编号：2178630
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