我国民事诉讼专家辅助人制度探讨
发布时间：2018-10-21 16:28
【摘要】：民事专家辅助人是指为了解决民事诉讼中案件涉及的具有争议的专业性问题，由当事人申请，法院审查决定其出庭参与诉讼，对鉴定意见或者其他专业问题进行阐释、说明和提出专家意见，以排除当事人质证和法院事实认定中对有关专业问题的认知障碍，协助法院发现事实真相。专家辅助人在诉讼中的身份既不同于专家证人、也有别于鉴定人，其在我国民事诉讼中应属于裁判辅助主体，具有特殊的诉讼地位。关于专家辅助人的资格要求、选任、权利义务、法律责任以及专家意见效力等一系列问题的规范总和即为专家辅助人制度。 专家参与诉讼的模式在两大法系国家都经历了较长时间的发展，，由于科学技术的迅猛发展，专家在诉讼中的作用日趋明显，两大法系开始致力于相关制度的改革与创新，使其逐渐趋于完善。我国也结合自身的司法实践经验并借鉴国外的专家证人制度等先进的司法经验，建立了独特的专家辅助人制度。但是，从现有的专家辅助人制度的立法状况与司法实践来看，该制度在诸多方面还有待进一步完善。例如，专家辅助人的资格如何确定、法院主导专家辅助人的选任问题、资格审查为何种标准、权利义务和法律责任不明确的缺陷、专家意见可采性标准缺失等等问题的存在，都昭示着我国专家辅助人制度的完善之路还很漫长。另外，该制度中处于核心地位的专家辅助人的法律定位问题学界也未能达成共识，以致于学者们就专家意见的效力问题也众说纷纭，进一步阻碍了人们构建统一的专家辅助人制度体系。 要保障专家辅助人制度的顺利运行，我们应当在保留职权主义的背景下，对英美法系的专家证人制度和大陆法系的鉴定人制度推陈出新，完善新兴的专家辅助人制度。从专家辅助人制度的立法背景入手，对法条和司法解释关于该项制度的规定进行解读，比较其中的一致性和区分点。然后进一步分析学界对专家辅助人法律定位的理论观点，准确认定专家辅助人裁判辅助主体的诉讼地位，并建立以实质要求为主导，形式要求服务于实质要求的专家辅助人资格标准。通过削弱专家辅助人制度中的职权主义色彩，赋予当事人在选任专家辅助人方面更多的主动权。同时具体规定专家辅助人拥有的权利、承担的义务和法律责任。弥补专家意见可采性规则的缺失，规范专家意见的认定标准，进一步确定专家意见的法律效力。
[Abstract]:A civil expert assistant means that in order to solve the controversial professional issues involved in a civil action, the parties apply, and the court examines and decides to appear before the court to participate in the proceedings, and to interpret the appraisal opinion or other professional issues, To explain and provide expert opinions in order to remove the cognitive barriers to relevant professional issues in the cross-examination of the parties and the court's factual determination, and to assist the court in discovering the truth of the facts. The status of expert assistant in litigation is not only different from expert witness, but also different from expert witness. The standard sum of the qualification requirements, selection, rights and obligations, legal responsibility and the effectiveness of expert opinions is the system of expert auxiliaries. The mode of expert participation in litigation has experienced a long period of development in the two legal system countries. Due to the rapid development of science and technology, the role of experts in litigation is becoming more and more obvious. The two legal systems began to devote themselves to the reform and innovation of relevant systems. Make it tend to perfect gradually. Our country also combines own judicial practice experience and draws lessons from the foreign advanced judicial experience such as expert witness system, has established the unique expert assistant person system. However, from the current legislative situation and judicial practice of the expert Auxiliary system, the system needs to be further improved in many aspects. For example, the question of how to determine the qualifications of expert auxiliaries, the choice of expert auxiliaries by the courts, the criteria for qualification review, the shortcomings of rights, obligations and legal responsibilities, the absence of criteria for the admissibility of expert opinions, and so on. It is also a long way to perfect the expert assistant system in our country. In addition, the legal position of expert auxiliaries in this system has not reached a consensus, so that scholars have different opinions on the validity of expert opinions. Further hinders the people to construct the unified expert assistant person system. In order to ensure the smooth operation of the expert assistant system, we should, under the background of the retention of authority, bring forth new ideas to the expert witness system in the Anglo-American law system and the expert witness system in the continental law system, and perfect the emerging expert assistant person system. Starting from the legislative background of the expert assistant system, this paper interprets the provisions of the law and the judicial interpretation about the system, and compares the consistency and distinction between them. Then it further analyzes the academic theory of the legal positioning of the expert assistant, and accurately determines the litigation status of the expert assistant referee, and establishes the substantive requirements as the leading role. The qualification criteria for expert auxiliaries serving substantive requirements. By weakening the functions and powers in the system of expert auxiliaries, the parties are given more initiative in the selection of expert auxiliaries. At the same time, it specifies the rights, obligations and legal responsibilities of the expert auxiliaries. To make up for the deficiency of the rule of admissibility of expert opinion, to standardize the standard of recognition of expert opinion, and to further determine the legal effect of expert opinion.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2285691
[Abstract]:A civil expert assistant means that in order to solve the controversial professional issues involved in a civil action, the parties apply, and the court examines and decides to appear before the court to participate in the proceedings, and to interpret the appraisal opinion or other professional issues, To explain and provide expert opinions in order to remove the cognitive barriers to relevant professional issues in the cross-examination of the parties and the court's factual determination, and to assist the court in discovering the truth of the facts. The status of expert assistant in litigation is not only different from expert witness, but also different from expert witness. The standard sum of the qualification requirements, selection, rights and obligations, legal responsibility and the effectiveness of expert opinions is the system of expert auxiliaries. The mode of expert participation in litigation has experienced a long period of development in the two legal system countries. Due to the rapid development of science and technology, the role of experts in litigation is becoming more and more obvious. The two legal systems began to devote themselves to the reform and innovation of relevant systems. Make it tend to perfect gradually. Our country also combines own judicial practice experience and draws lessons from the foreign advanced judicial experience such as expert witness system, has established the unique expert assistant person system. However, from the current legislative situation and judicial practice of the expert Auxiliary system, the system needs to be further improved in many aspects. For example, the question of how to determine the qualifications of expert auxiliaries, the choice of expert auxiliaries by the courts, the criteria for qualification review, the shortcomings of rights, obligations and legal responsibilities, the absence of criteria for the admissibility of expert opinions, and so on. It is also a long way to perfect the expert assistant system in our country. In addition, the legal position of expert auxiliaries in this system has not reached a consensus, so that scholars have different opinions on the validity of expert opinions. Further hinders the people to construct the unified expert assistant person system. In order to ensure the smooth operation of the expert assistant system, we should, under the background of the retention of authority, bring forth new ideas to the expert witness system in the Anglo-American law system and the expert witness system in the continental law system, and perfect the emerging expert assistant person system. Starting from the legislative background of the expert assistant system, this paper interprets the provisions of the law and the judicial interpretation about the system, and compares the consistency and distinction between them. Then it further analyzes the academic theory of the legal positioning of the expert assistant, and accurately determines the litigation status of the expert assistant referee, and establishes the substantive requirements as the leading role. The qualification criteria for expert auxiliaries serving substantive requirements. By weakening the functions and powers in the system of expert auxiliaries, the parties are given more initiative in the selection of expert auxiliaries. At the same time, it specifies the rights, obligations and legal responsibilities of the expert auxiliaries. To make up for the deficiency of the rule of admissibility of expert opinion, to standardize the standard of recognition of expert opinion, and to further determine the legal effect of expert opinion.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
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