论鉴定结论的审查与运用
发布时间：2019-06-01 21:05
【摘要】：证据是诉讼的核心内容,诉讼活动实际上就是围绕着证据的收集、审查和运用进行的。随着现代社会的飞速发展和科学技术的日新月异,鉴定结论作为一种独具特色的证据表现形式,在诉讼中发挥着越来越重要的作用。但是,鉴定结论作为七大证据的一种,并不具有凌驾于其他证据之上的特殊地位,同样需要法官的审查与判断。目前,我国司法实践中在鉴定结论的审查运用方面存在不少问题,如鉴定结论的科学性评判标准、鉴定结论质证的程序制度等尚没有明确的规定,对鉴定结论的采信难以达到科学化、规范化,使得鉴定结论的证据效能不能充分发挥。本文从鉴定结论的审查与运用入手,对鉴定结论证据进行研究,以期对尽快制定和完善司法鉴定法有所裨益。本论文分成三个部分,第一部分从杜培武案件、李华伟案件、李久明案件等三起刑事错案入手,剖析三起刑事错案中鉴定结论在案件定性中的作用,归纳出司法实践中审查与运用鉴定结论存在的主要问题。第二部分主要研究我国现行法律对鉴定结论审查与运用方面内容的有关规定,因立法规定的过于原则、概括,导致司法实践中运用鉴定结论存在诸多问题,并对这些问题进行分析破解。第三部分主要研究完善鉴定结论审查与运用制度的构想。首先对美国、英国等国家鉴定结论在法庭上的审查运用情况进行考察。然后结合我国立法现状和司法实践,提出应建立我国鉴定结论的科学性评判标准,并对该标准应包涵的有关内容提出个人见解。接着笔者对鉴定结论的证据能力、证明力进行论述,研究鉴定结论的证据效力。提出借鉴英美法系国家的证据规则体系,引入非法证据规则、传闻证据规则、品格证据规则等三大证据规则架构鉴定结论证据规则。第一,建立非法证据规则。笔者提出的观点主要包括,非法鉴定结论应排除适用；建立在非法证据技术上的鉴定结论应排除适用；科学性、准确性不高的鉴定结论应排除适用。第二,建立传闻证据规则。为了与我国现代诉讼模式和司法理念相适应、与司法程序公正的要求相适应、与鉴定结论证据证明的规律相适应,提出除了法定的鉴定人可以不出庭的情形外,在庭审过程中鉴定人无法定理由均必须出庭,对于无正当理由拒不出庭的,其所作的鉴定结论不具有证据能力,不能被法庭采纳,从而限制了不出庭鉴定人的鉴定结论的采信。第三,建立品格证据。提出可以在法院内部建立鉴定机构、鉴定人诚信档案,将以此作为鉴定结论采信与否的一个参考因素。诚信档案的建立对鉴定机构、鉴定人会产生一定的威慑力,促使其更加关注鉴定质量,确保鉴定结论的公正、准确。在鉴定结论的证明力方面,笔者认为要运用现代心证原则评判鉴定结论,应在充分听取控辩双方关于鉴定结论的质证后再形成自己的内心确信,并要在判决书中公开说明鉴定材料的来源、鉴定的科学原理、推理过程等,陈述双方对鉴定的异议,阐述采信或舍弃鉴定结论的理由以及鉴定结论在案件中的作用,让鉴定结论的采信过程更加透明、公开。最后笔者提出应完善鉴定结论质证制度。论述的内容主要包括鉴定人应出庭质证、鉴定人不出庭的例外情形、完善交叉询问规则等,进一步明确了鉴定结论质证的有关内容。
[Abstract]:The evidence is the core of the lawsuit, and the litigation activity is in fact the collection, review and application of the evidence. With the rapid development of the modern society and the rapid development of science and technology, the conclusion of the appraisal, as a unique form of evidence, plays a more and more important role in the litigation. However, the conclusion of the appraisal, as one of the seven pieces of evidence, does not have the special status above the other evidence, and also requires the examination and judgment of the judge. At present, there are many problems in the application of the examination and application of the appraisal conclusion in the judicial practice of our country, such as the scientific judgment standard of the appraisal conclusion, the procedure system of the conclusion of the appraisal conclusion, etc. So that the evidence efficiency of the appraisal conclusion can not be brought into full play. This paper starts with the review and application of the conclusion of the appraisal, and studies the evidence of the appraisal conclusion, so as to help to develop and improve the judicial authentication method as soon as possible. This paper is divided into three parts. The first part starts with three criminal cases such as Du Peiwu's case, Li Hua Wei's case and Li Jiaming's case, and analyzes the role of the appraisal conclusion in the case of the three criminal cases, and sums up the main problems in the judicial practice. The second part mainly studies the relevant provisions of the current law on the content of the review and application of the appraisal conclusion. The third part mainly studies the idea of improving the examination and application system of the appraisal conclusion. First, the review and application of the conclusions of the national experts, such as the United States and the United Kingdom, were examined. Then, in combination with the current situation of China's legislation and the judicial practice, it is proposed that the scientific judgment standard of the appraisal conclusion of our country should be set up, and the personal opinions should be put forward to the relevant contents that should be included in the standard. Then, the author makes a discussion on the evidence ability and the proof force of the appraisal conclusion, and studies the evidence effectiveness of the conclusion of the appraisal. The rules of evidence and evidence of the three rules of evidence, such as the rules of evidence, the rules of evidence and the evidence of character, are introduced. First, the establishment of the rules of the rule of law. The author's point of view mainly includes that the conclusion of the illegal expert should be excluded; the conclusion of the appraisal in the technical of the illegal evidence shall be excluded; the conclusion that the scientific and the accuracy is not high shall be excluded. Secondly, the rule of hearsay evidence is established. In ord to adapt to that modern lawsuit pattern and the judicial idea of our country, to adapt to the justice of the judicial procedure, to adapt to the law of the proof of the evidence of the appraisal conclusion, it is suggested that, in addition to the case where the legal experts can not appear before the court, the experts in the course of the trial must appear before the court. Where there is no justification for refusing to appear in court, the conclusion of the appraisal does not have the capability of evidence and cannot be adopted by the court, thus limiting the admissibility of the expert's conclusion. Third, the establishment of character evidence. It is suggested that the establishment of an appraisal institution and an expert's integrity file in the court can be used as a reference for the conclusion of the appraisal conclusion. The establishment of the good faith file has a certain deterrent effect on the appraisal institution and the appraiser, so that it will pay more attention to the quality of the appraisal and ensure the fairness and accuracy of the appraisal conclusion. In the aspect of the proof force of the appraisal conclusion, the author thinks it is necessary to use the modern heart-proof principle to judge the conclusion of the appraisal, and should fully listen to the quality certificate of the two parties on the appraisal conclusion and then form his own inner confidence, and to disclose the source of the identification material and the scientific principle of the appraisal in the judgment. The reasoning process, etc., states the objection of the two parties to the appraisal, and expounds the reasons for the conclusion of the mining letter or the rejection of the appraisal conclusion and the role of the expert conclusion in the case, so as to make the data mining process of the appraisal conclusion more transparent and open. In the end, the author puts forward that the system of identification and conclusion should be improved. The content of the discussion mainly includes the case of the expert's appearance, the exception of the expert's non-appearance, the perfect cross-inquiry rule and so on, and further defines the relevant contents of the conclusion of the appraisal conclusion.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D918.9
[Abstract]:The evidence is the core of the lawsuit, and the litigation activity is in fact the collection, review and application of the evidence. With the rapid development of the modern society and the rapid development of science and technology, the conclusion of the appraisal, as a unique form of evidence, plays a more and more important role in the litigation. However, the conclusion of the appraisal, as one of the seven pieces of evidence, does not have the special status above the other evidence, and also requires the examination and judgment of the judge. At present, there are many problems in the application of the examination and application of the appraisal conclusion in the judicial practice of our country, such as the scientific judgment standard of the appraisal conclusion, the procedure system of the conclusion of the appraisal conclusion, etc. So that the evidence efficiency of the appraisal conclusion can not be brought into full play. This paper starts with the review and application of the conclusion of the appraisal, and studies the evidence of the appraisal conclusion, so as to help to develop and improve the judicial authentication method as soon as possible. This paper is divided into three parts. The first part starts with three criminal cases such as Du Peiwu's case, Li Hua Wei's case and Li Jiaming's case, and analyzes the role of the appraisal conclusion in the case of the three criminal cases, and sums up the main problems in the judicial practice. The second part mainly studies the relevant provisions of the current law on the content of the review and application of the appraisal conclusion. The third part mainly studies the idea of improving the examination and application system of the appraisal conclusion. First, the review and application of the conclusions of the national experts, such as the United States and the United Kingdom, were examined. Then, in combination with the current situation of China's legislation and the judicial practice, it is proposed that the scientific judgment standard of the appraisal conclusion of our country should be set up, and the personal opinions should be put forward to the relevant contents that should be included in the standard. Then, the author makes a discussion on the evidence ability and the proof force of the appraisal conclusion, and studies the evidence effectiveness of the conclusion of the appraisal. The rules of evidence and evidence of the three rules of evidence, such as the rules of evidence, the rules of evidence and the evidence of character, are introduced. First, the establishment of the rules of the rule of law. The author's point of view mainly includes that the conclusion of the illegal expert should be excluded; the conclusion of the appraisal in the technical of the illegal evidence shall be excluded; the conclusion that the scientific and the accuracy is not high shall be excluded. Secondly, the rule of hearsay evidence is established. In ord to adapt to that modern lawsuit pattern and the judicial idea of our country, to adapt to the justice of the judicial procedure, to adapt to the law of the proof of the evidence of the appraisal conclusion, it is suggested that, in addition to the case where the legal experts can not appear before the court, the experts in the course of the trial must appear before the court. Where there is no justification for refusing to appear in court, the conclusion of the appraisal does not have the capability of evidence and cannot be adopted by the court, thus limiting the admissibility of the expert's conclusion. Third, the establishment of character evidence. It is suggested that the establishment of an appraisal institution and an expert's integrity file in the court can be used as a reference for the conclusion of the appraisal conclusion. The establishment of the good faith file has a certain deterrent effect on the appraisal institution and the appraiser, so that it will pay more attention to the quality of the appraisal and ensure the fairness and accuracy of the appraisal conclusion. In the aspect of the proof force of the appraisal conclusion, the author thinks it is necessary to use the modern heart-proof principle to judge the conclusion of the appraisal, and should fully listen to the quality certificate of the two parties on the appraisal conclusion and then form his own inner confidence, and to disclose the source of the identification material and the scientific principle of the appraisal in the judgment. The reasoning process, etc., states the objection of the two parties to the appraisal, and expounds the reasons for the conclusion of the mining letter or the rejection of the appraisal conclusion and the role of the expert conclusion in the case, so as to make the data mining process of the appraisal conclusion more transparent and open. In the end, the author puts forward that the system of identification and conclusion should be improved. The content of the discussion mainly includes the case of the expert's appearance, the exception of the expert's non-appearance, the perfect cross-inquiry rule and so on, and further defines the relevant contents of the conclusion of the appraisal conclusion.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D918.9
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