诉讼中重新鉴定问题研究
发布时间：2019-03-22 20:08
【摘要】：重新鉴定是指在诉讼活动中,当事人或诉讼代理人对原鉴定意见有异议时,向办案机关提出申请就同一鉴定事项进行再次鉴定,或者办案机关依据职权对有争议或审查发现有明显问题的鉴定意见另行委托所进行的鉴定。重新鉴定是司法鉴定救济程序的一种,符合正当程序的要求,对于检验和纠正不合理的鉴定意见具有重要作用,有利于保护当事人合法权利,帮助当事人去疑解惑,同时也对鉴定意见科学性能起到起到有效监督作用,有利于提高鉴定人的责任心。 由于我国至今在司法鉴定方面无专门的法律,鉴定领域内的一些基本问题只是由2005年全国人大常委会出台的《决定》及2007年司法部《司法鉴定程序通则》所规定,效力和可操作性都不高。在诉讼领域,新修订的《刑事诉讼法》与《民事诉讼法》于2013年1月1日起实施,两大诉讼法的修改均涉及了有关司法鉴定的内容。但从总体来看,两大诉讼法及其司法解释中,关于司法鉴定的规定大多是原则性的,有关司法鉴定活动的具体制度、程序、规则的规定和条款不多,尤其是针对重新鉴定的规定较少,且可操作性较差,司法实践中难以准确把握和执行。 在司法实践中,重新鉴定过多有很大危害,有时候多份鉴定意见无一相同,法官和当事人无所适从,“打官司”变成了“打鉴定”,导致案件久拖不决,既浪费诉讼资源,又极大损害当事人的合法利益。不合理重新鉴定问题的原因是多方面的,包括司法鉴定机构设置存在缺陷、司法鉴定准入门槛过低、鉴定标准的不统一、鉴定人水平参差不齐、鉴定人出庭作证率低、鉴定意见的判断与审核流于形式、司法鉴定市场化带来巨大冲击及一些客观方面的原因。 本文从规范重新鉴定的法制及管理两个角度提出了规范重新鉴定的对策建议,从法制角度提出了加快制定司法鉴定法,制定全国统一的司法鉴定标准,进一步完善鉴定意见审查判断制度、司法鉴定人出庭质证制度4条举措；从管理角度提出了完善司法鉴定管理制度,建立鉴定信息互动制度,完善司法鉴定人执业活动监管制度等3条举措。
[Abstract]:Re-appraisal means that, in the course of a lawsuit, when the party or the litigant's agent objects to the original appraisal opinion, he shall apply to the case-handling organ for re-appraisal on the same appraisal matter, Or the case-handling organ shall, ex officio, entrust the appraisal opinions separately entrusted to the dispute or the examination and discovery of obvious problems. Re-appraisal is one of the remedy procedures of judicial expertise, which conforms to the requirements of due process, plays an important role in testing and correcting unreasonable expert opinions, is conducive to protecting the legitimate rights of the parties concerned, and helps the parties to resolve doubts and doubts. At the same time, it also plays an effective role in supervising the scientific performance of appraisal opinions, which is helpful to improve the appraiser's sense of responsibility. Since there is no special law on judicial expertise in China so far, some basic problems in the field of expertise are only stipulated in the decision issued by the standing Committee of the National people's Congress in 2005 and in the General rules of procedure for Judicial expertise of the Ministry of Justice in 2007. Both effectiveness and maneuverability are not high. In the field of litigation, the newly revised Code of Criminal procedure and the Code of Civil procedure came into effect on January 1, 2013. The amendments to the two major procedural laws both involve the contents of judicial expertise. However, in general, in the two major procedural laws and their judicial interpretations, most of the provisions on judicial expertise are principled, and there are few provisions and clauses concerning the specific system, procedure, rules and rules of judicial expertise activities. Especially for the re-identification of the provisions less, and poor maneuverability, judicial practice is difficult to accurately grasp and implement. In judicial practice, it is very harmful to re-evaluate too many opinions, sometimes not one of the same opinions is the same, judges and parties are at a loss as to what to do, and "litigation" becomes "appraisal", resulting in a prolonged delay in the decision of a case and a waste of litigation resources. And a great deal of damage to the legitimate interests of the parties. The reasons for the unreasonable re-identification are many aspects, including the defects in the establishment of judicial authentication institutions, the low threshold of access to judicial expertise, the inconsistency of appraisal standards, the uneven level of experts, and the low rate of forensic testimony in court. The judgment and examination of the appraisal opinion is only formal, and the marketization of the judicial appraisal brings great impact and some objective reasons. In this paper, the author puts forward the countermeasures and suggestions from the angle of legal system and management of standardizing re-appraisal, and from the angle of legal system, puts forward the suggestion of speeding up the formulation of judicial authentication law and the formulation of unified national standards of judicial authentication. Further improve the system of examination and judgment of expert opinions, judicial experts appear in court to cross-examine the system of four measures; From the management point of view, this paper puts forward three measures, such as perfecting the judicial identification management system, establishing the identification information interaction system, and perfecting the supervision system of the judicial expert's practice activities.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1;D925.2
本文编号：2445875
[Abstract]:Re-appraisal means that, in the course of a lawsuit, when the party or the litigant's agent objects to the original appraisal opinion, he shall apply to the case-handling organ for re-appraisal on the same appraisal matter, Or the case-handling organ shall, ex officio, entrust the appraisal opinions separately entrusted to the dispute or the examination and discovery of obvious problems. Re-appraisal is one of the remedy procedures of judicial expertise, which conforms to the requirements of due process, plays an important role in testing and correcting unreasonable expert opinions, is conducive to protecting the legitimate rights of the parties concerned, and helps the parties to resolve doubts and doubts. At the same time, it also plays an effective role in supervising the scientific performance of appraisal opinions, which is helpful to improve the appraiser's sense of responsibility. Since there is no special law on judicial expertise in China so far, some basic problems in the field of expertise are only stipulated in the decision issued by the standing Committee of the National people's Congress in 2005 and in the General rules of procedure for Judicial expertise of the Ministry of Justice in 2007. Both effectiveness and maneuverability are not high. In the field of litigation, the newly revised Code of Criminal procedure and the Code of Civil procedure came into effect on January 1, 2013. The amendments to the two major procedural laws both involve the contents of judicial expertise. However, in general, in the two major procedural laws and their judicial interpretations, most of the provisions on judicial expertise are principled, and there are few provisions and clauses concerning the specific system, procedure, rules and rules of judicial expertise activities. Especially for the re-identification of the provisions less, and poor maneuverability, judicial practice is difficult to accurately grasp and implement. In judicial practice, it is very harmful to re-evaluate too many opinions, sometimes not one of the same opinions is the same, judges and parties are at a loss as to what to do, and "litigation" becomes "appraisal", resulting in a prolonged delay in the decision of a case and a waste of litigation resources. And a great deal of damage to the legitimate interests of the parties. The reasons for the unreasonable re-identification are many aspects, including the defects in the establishment of judicial authentication institutions, the low threshold of access to judicial expertise, the inconsistency of appraisal standards, the uneven level of experts, and the low rate of forensic testimony in court. The judgment and examination of the appraisal opinion is only formal, and the marketization of the judicial appraisal brings great impact and some objective reasons. In this paper, the author puts forward the countermeasures and suggestions from the angle of legal system and management of standardizing re-appraisal, and from the angle of legal system, puts forward the suggestion of speeding up the formulation of judicial authentication law and the formulation of unified national standards of judicial authentication. Further improve the system of examination and judgment of expert opinions, judicial experts appear in court to cross-examine the system of four measures; From the management point of view, this paper puts forward three measures, such as perfecting the judicial identification management system, establishing the identification information interaction system, and perfecting the supervision system of the judicial expert's practice activities.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1;D925.2
【参考文献】
相关期刊论文 前10条
1 邹明理;对《关于司法鉴定管理问题的决定》中几个有争议问题的思考[J];中国司法;2005年08期
2 邹明理;;合理控制重新鉴定和有效解决鉴定争议措施探讨[J];中国司法;2008年08期
3 邹明理;;重新鉴定增多原因与对策研究[J];证据科学;2012年01期
4 杜国明;杨建广;;司法鉴定质证程序问题研究[J];华南农业大学学报(社会科学版);2007年01期
5 尚华;;论鉴定意见的审查判断[J];人民司法;2011年17期
6 唐磊;陈利红;;论鉴定结论的质证[J];中国司法鉴定;2005年06期
7 周侃;张宇坤;;司法鉴定与质证程序法理关系探究[J];中国司法鉴定;2006年03期
8 方侃乐;沈路峰;魏金汉;;法院在委托司法鉴定中存在的问题与对策[J];中国司法鉴定;2007年02期
9 齐树洁;董扬;;鉴定人出庭质证规则的比较分析[J];中国司法鉴定;2009年04期
10 程军伟;;由“华山”笔迹鉴定案件反思鉴定若干理论问题[J];中国司法鉴定;2010年02期
，本文编号：2445875
本文链接：https://www.wllwen.com/falvlunwen/susongfa/2445875.html
