论我国刑事诉讼专家意见制度

发布时间：2018-11-15 16:31

【摘要】：本文共分四个部分,其中重点内容在第三、四部分。通过分析研究英美法系专家证人制度和大陆法系鉴定人制度,主要在以下方面获得了一定启示,一是专家资格审查方面,我国司法鉴定制度的鉴定人资格审查过于看重鉴定人的形式要件而忽视了实质要件,我国刑事诉讼专家意见制度在这方面应当引以为戒,将专家资格审查重点放在实质要件上来；二是专家选任机制方面,应当坚持当事人选任为主,法庭选任为辅的原则,将专家选任权利交由当事人行使；三是专家的权利和义务方面,专家与普通证人不同,专家应当享有出庭自由,不得强制专家出庭,专家还应当享有知情权,包括对案件材料和鉴定材料的查阅和询问,以便能够更加准确地做出专家意见,专家对案情负有保密义务,对违法作证行为承担法律责任；四是专家出庭原则方面,鉴定制度以书面鉴定结论为主,但是专家意见制度必须坚持口头作证原则；五是专家意见制度的适用范围方面,我国刑事诉讼法规定的专家意见制度适用范围明显过小,大大降低了专家意见制度的应有作用,本文认为应当扩大专家意见制度的适用范围,最大程度地发挥专家意见制度的积极作用；六是专家意见制度与司法鉴定制度的关系方面,本文认为应当建立两者平等关系,发挥各自优势,弥补各自局限性,使两者建立一种互补互辅的平等关系。由于我国新《刑事诉讼法》刚颁行不久,实践中适用该制度的司法案例不多,实际中存在的运行问题还有待观察。立法确立刑事诉讼专家意见制度反映了社会现实需要,关于我国刑事诉讼专家意见制度必然还会出现更多问题和争议,因此,对我国刑事诉讼专家意见制度进行研究具有一定的理论意义与实践价值。
[Abstract]:This paper is divided into four parts, among which the key content is in the third and fourth parts. By analyzing and studying the expert witness system in common law system and the expert witness system in civil law system, we have obtained some enlightenment mainly in the following aspects: first, expert qualification examination. The appraisal qualification examination of our country's judicial expertise system pays too much attention to the formal requirements of experts and neglects the essential elements. The expert opinion system of our country's criminal procedure should be taken as a warning in this respect. The emphasis of the expert qualification examination is on the substantive elements; Second, the mechanism of expert selection should adhere to the principle of party selection and court selection, and the right to select experts should be exercised by the parties. Third, in terms of experts' rights and obligations, experts, unlike ordinary witnesses, should enjoy the freedom to appear in court. They should not compel experts to appear in court. Experts should also enjoy the right to know, including access to and questioning of case materials and identification materials. In order to be able to make more accurate expert opinion, experts have the duty of confidentiality of the case, bear legal responsibility for illegal testimony; Fourth, the principle of expert appearance in court, the appraisal system is based on the conclusion of written appraisal, but the expert opinion system must adhere to the principle of oral testimony; Fifth, the scope of application of the expert opinion system. The scope of application of the expert opinion system stipulated in our criminal procedure law is obviously too small, which greatly reduces the due role of the expert opinion system. This paper holds that the scope of application of the expert opinion system should be expanded and the positive role of the expert opinion system should be maximized. Sixth, the relationship between the expert opinion system and the judicial expertise system, this article holds that we should establish the equal relationship between the two, give play to their respective advantages, make up for their respective limitations, and make the two establish a complementary and complementary equal relationship. As the new Criminal procedure Law of our country has just been promulgated, there are not many judicial cases that apply this system in practice, and the operational problems in practice still need to be observed. Legislation to establish the expert opinion system of criminal procedure reflects the needs of the society, and there will inevitably be more problems and disputes about the expert opinion system of criminal procedure in our country. It has certain theoretical significance and practical value to study the expert opinion system of criminal procedure in our country.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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