刑事专家辅助人制度实施情况研究
发布时间：2018-08-29 14:43
【摘要】：新刑事诉讼法将“有专门知识的人”写入条文，标志着我国刑事诉讼领域刑事专家辅助人制度的产生，专家辅助人制度的引入无疑给刑事诉讼法的实施增添了新的亮点。专家辅助人参与对鉴定意见的质证程序既是解决长期以来我国司法鉴定意见审查判断难、法官采信鉴定意见困局等问题的有效方式，又回应了司法证明活动越来越科学化、专业化的迫切需要。2013年1月1日新版刑事诉讼法正式施行，标志着专家辅助人制度从之前的理论探讨过渡到了司法实践的阶段。本文写作的出发点就是研究该项制度是如何在司法实践中适用，并对其能否发挥制度设计之初的应有功能作初步的探讨。在论文写作过程中，首先，笔者分别从纵向和横向对该制度进行了基础理论分析。纵向方面，分析了专家辅助人制度的生成背景与改革进路；横向方面，比较了域外类似制度的规定，同时也参考了我国行政诉讼法、民事诉讼法中关于专家辅助人制度的各项规定。其次，笔者以案例介绍的形式分析了较为典型的专家辅助人参与刑事诉讼的案件，并对其存在的问题与不足作了相应的阐述。最后，针对该项制度实施过程中存在的问题提出了相应的完善建议，以期对该制度在司法实践中的有效运行有所帮助。文章正文由三个部分组成，约三万三千字。 第一部分是对刑事专家辅助人制度基础理论的分析。专家辅助人制度契合了我国司法鉴定制度改革的迫切需要，同时也是在对域外经验有益借鉴的基础上产生的，此为专家辅助人制度生成的背景。专家辅助人制度的产生经历了从相关司法解释到法律修改稿再到定稿实施，从学者的理论分析到官方法律建议稿再到法律适用的发展过程。现行刑事诉讼法主要规定了该项制度的申请主体、决定机关、功能定位等内容，法律规定十分简略，这就增添了该制度实施的困难性。由于我国鉴定意见启动权的单方面性，加之侦查机关自侦自鉴，重复鉴定、多头鉴定等问题的存在，，使得我国的司法鉴定制度陈年积疴。专家辅助人制度的产生有着其积极的意义，该项制度能有效弥补鉴定启动权缺失造成的控辩失衡，改善法官因缺乏专门知识造成的对鉴定意见的采信困局，从而有利于保障和实现刑事诉讼的公正价值，进一步增强司法公信力。 第二部分是对刑事专家辅助人制度的制度缺陷以及实施情况的分析。由于新的刑事诉讼法刚刚施行，加之鉴定意见一家独大的局面没有得到改观，因此刑事专家辅助人制度在司法实践中的运用情况较少，可以用个案来形容其数量。包括法官在内的司法人员以及社会大众对该项制度的关注度不够，制度的适用面仍然较窄。文章选取了较为有代表性的两例专家辅助人出庭的案件对司法实践中出现的专家辅助人参与刑事诉讼的情况进行分析。通过分析发现：专家辅助人制度在实施过程中存在着主体性存疑，程序规定不完备和相应保障机制不完善以及面临着较为冲突的价值选择问题。一方面，法官更加习惯运用专家咨询、依职权重新启动鉴定等形式来解决其对鉴定意见中专门性问题的疑惑；另一方面，现实中存在着专家辅助人不愿参诉、难找的情况，再加之专家辅助人的实施效果还未得到充分的显现，使得该项制度在实施中境地尴尬。 第三部分是针对司法实践中专家辅助人制度存在的问题提供了相应的制度完善措施。为了使该项制度能够真正的发挥其应有的功能，更好的服务于司法实践，文章认为应该从以下四个方面进行改革：首先，应尽快明确专家辅助人的主体性地位，在保障其有限中立性的基础上赋予其独立的诉讼地位；其次，细化专家辅助人制度的程序性规定。通过在审前程序建立专家辅助人的资格认证程序，在必要的情况下由诉讼各方对是否聘请专家辅助人进行意见交换，做好庭审前的准备工作。同时，进一步明确专家辅助人参与法庭审判的权利、义务和出庭的细节规定。庭审结束后，专家辅助人有义务对其所了解的有关鉴定意见的质证内容向法院呈交书面意见。法院同样需要对此进行入卷归档以便案件的审判及查阅；再次，还需要不断完善专家辅助人制度的保障机制。增加专家辅助人出庭的保障性措施的规定，从而打消专家不愿出庭的顾虑。同时规定专家辅助人提供虚假意见应承担的责任；最后，还应当加强法官对有专家辅助人出庭案件的判决说理与鉴定意见的当庭公开认证。唯有如此，才能更好的展现专家辅助人意见在庭审过程中的运用效果，增强庭审的公开透明性。
[Abstract]:The new Criminal Procedure Law has written "the person with expertise" into the provisions, which marks the emergence of the criminal expert assistant system in the field of criminal procedure in China. The introduction of the expert assistant system undoubtedly adds a new bright spot to the implementation of the Criminal Procedure Law. The new Criminal Procedure Law was formally implemented on January 1, 2013, marking the transition of the expert assistant system from the previous theoretical discussion to the stage of judicial practice. The starting point of this paper is to study how the system is applied in judicial practice, and to make a preliminary discussion on whether it can play its due function at the beginning of the system design. In the process of writing, first of all, the author makes a theoretical analysis of the system from the vertical and horizontal aspects. Secondly, the author analyzes the typical cases in which expert assistant participates in criminal proceedings in the form of case introduction, and compares the provisions of similar systems outside China with those of China's Administrative Procedure Law and Civil Procedure Law. Finally, the paper puts forward some suggestions to improve the system in order to help the effective operation of the system in judicial practice. The text consists of three parts, about 33,000 words.
The first part is the analysis of the basic theory of the criminal expert assistant system.The expert assistant system meets the urgent need of the reform of our country's judicial expertise system,and it is also produced on the basis of the beneficial experience of foreign countries,which is the background of the emergence of the expert assistant system. The current Criminal Procedure Law mainly stipulates the application subject, the determination organ, the function localization and so on. The legal stipulation is very brief, this has increased the difficulty which this system implements. Because of the unilateral nature of the initiation right of expert opinions, the existence of the problems of self-examination, repeated appraisal and multi-appraisal by the investigative organs, the system of judicial appraisal in our country has been prolonged for a long time. The emergence of expert assistant system has its positive significance. This system can effectively remedy the imbalance between prosecution and defense caused by the absence of the initiation right of expert appraisal. The dilemma of acceptance of expert opinions caused by the lack of expertise of good judges is conducive to safeguarding and realizing the fair value of criminal proceedings and further enhancing judicial credibility.
The second part is the analysis of the system defects and implementation of the criminal expert assistant system.Because the new criminal procedure law has just been implemented and the situation of expert opinions being the dominant one has not been improved, the application of the criminal expert assistant system in judicial practice is less, which can be described by individual cases. Judicial personnel, including judges, and the public have not paid enough attention to the system, and the application of the system is still relatively narrow. This paper selects two representative cases of expert assistant appearing in court to analyze the situation of expert assistant participating in criminal proceedings in judicial practice. On the one hand, judges are more accustomed to using expert consultation and restarting appraisal according to their authority to solve their doubts about the specialty of appraisal opinions; on the other hand, judges are more accustomed to using expert consultation to restart appraisal. On the one hand, there are some problems in reality, such as the expert assistant is unwilling to participate in litigation, difficult to find, and the implementation effect of expert assistant has not been fully realized, which makes the system embarrassed in the implementation.
In order to make the system play its due role and serve the judicial practice better, the article holds that the reform should be carried out from the following four aspects: first, the owner of expert assistant should be made clear as soon as possible Secondly, the procedural provisions of the expert assistant system should be refined. By establishing the qualification certification procedure of the expert assistant in the pretrial procedure, the parties to the litigation should exchange views on whether to employ the expert assistant or not and do a good job in the court hearing if necessary. At the same time, further clarify the rights, obligations and details of appearing in court of the expert assistant. After the trial, the expert assistant is obliged to submit written opinions to the court on the cross-examination of the relevant expert opinions he knows. The court also needs to be involved in the filing for the trial of the case. Thirdly, it is necessary to improve the safeguard mechanism of the expert assistant system, increase the safeguard measures for the expert assistant to appear in court, so as to dispel the worries of the expert not willing to appear in court, stipulate the responsibility of the expert assistant to provide false opinions, and finally, strengthen the judge's responsibility for the expert assistant to appear in court cases. Only in this way can we better show the effect of expert assistant opinions in the trial process and enhance the openness and transparency of the trial.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2211525
[Abstract]:The new Criminal Procedure Law has written "the person with expertise" into the provisions, which marks the emergence of the criminal expert assistant system in the field of criminal procedure in China. The introduction of the expert assistant system undoubtedly adds a new bright spot to the implementation of the Criminal Procedure Law. The new Criminal Procedure Law was formally implemented on January 1, 2013, marking the transition of the expert assistant system from the previous theoretical discussion to the stage of judicial practice. The starting point of this paper is to study how the system is applied in judicial practice, and to make a preliminary discussion on whether it can play its due function at the beginning of the system design. In the process of writing, first of all, the author makes a theoretical analysis of the system from the vertical and horizontal aspects. Secondly, the author analyzes the typical cases in which expert assistant participates in criminal proceedings in the form of case introduction, and compares the provisions of similar systems outside China with those of China's Administrative Procedure Law and Civil Procedure Law. Finally, the paper puts forward some suggestions to improve the system in order to help the effective operation of the system in judicial practice. The text consists of three parts, about 33,000 words.
The first part is the analysis of the basic theory of the criminal expert assistant system.The expert assistant system meets the urgent need of the reform of our country's judicial expertise system,and it is also produced on the basis of the beneficial experience of foreign countries,which is the background of the emergence of the expert assistant system. The current Criminal Procedure Law mainly stipulates the application subject, the determination organ, the function localization and so on. The legal stipulation is very brief, this has increased the difficulty which this system implements. Because of the unilateral nature of the initiation right of expert opinions, the existence of the problems of self-examination, repeated appraisal and multi-appraisal by the investigative organs, the system of judicial appraisal in our country has been prolonged for a long time. The emergence of expert assistant system has its positive significance. This system can effectively remedy the imbalance between prosecution and defense caused by the absence of the initiation right of expert appraisal. The dilemma of acceptance of expert opinions caused by the lack of expertise of good judges is conducive to safeguarding and realizing the fair value of criminal proceedings and further enhancing judicial credibility.
The second part is the analysis of the system defects and implementation of the criminal expert assistant system.Because the new criminal procedure law has just been implemented and the situation of expert opinions being the dominant one has not been improved, the application of the criminal expert assistant system in judicial practice is less, which can be described by individual cases. Judicial personnel, including judges, and the public have not paid enough attention to the system, and the application of the system is still relatively narrow. This paper selects two representative cases of expert assistant appearing in court to analyze the situation of expert assistant participating in criminal proceedings in judicial practice. On the one hand, judges are more accustomed to using expert consultation and restarting appraisal according to their authority to solve their doubts about the specialty of appraisal opinions; on the other hand, judges are more accustomed to using expert consultation to restart appraisal. On the one hand, there are some problems in reality, such as the expert assistant is unwilling to participate in litigation, difficult to find, and the implementation effect of expert assistant has not been fully realized, which makes the system embarrassed in the implementation.
In order to make the system play its due role and serve the judicial practice better, the article holds that the reform should be carried out from the following four aspects: first, the owner of expert assistant should be made clear as soon as possible Secondly, the procedural provisions of the expert assistant system should be refined. By establishing the qualification certification procedure of the expert assistant in the pretrial procedure, the parties to the litigation should exchange views on whether to employ the expert assistant or not and do a good job in the court hearing if necessary. At the same time, further clarify the rights, obligations and details of appearing in court of the expert assistant. After the trial, the expert assistant is obliged to submit written opinions to the court on the cross-examination of the relevant expert opinions he knows. The court also needs to be involved in the filing for the trial of the case. Thirdly, it is necessary to improve the safeguard mechanism of the expert assistant system, increase the safeguard measures for the expert assistant to appear in court, so as to dispel the worries of the expert not willing to appear in court, stipulate the responsibility of the expert assistant to provide false opinions, and finally, strengthen the judge's responsibility for the expert assistant to appear in court cases. Only in this way can we better show the effect of expert assistant opinions in the trial process and enhance the openness and transparency of the trial.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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