论我国刑事诉讼中的专家辅助人制度及其构建
发布时间：2019-06-28 20:35
【摘要】：专家辅助人制度并非是一个新兴制度，无论是在英美法系国家还是大陆法系国家，专家辅助人制度都已经发展的相当完备，并在司法实践中得以广泛运用。我国民事诉讼法与行政诉讼法也在十年前就规定了专家辅助人制度并且内容也在不断地完善，但从司法实践的效果来看却不尽人意，该制度并没有得以广泛应用，其功能也没有充分发挥。究其根本原因还是我国并没有一套完整的专家辅助人制度，即立法上的不完善，导致了司法实践的混乱状态。 科学的进步、法治建设的需要、鉴定制度的硬伤、冤假错案的频出都催生我国刑事诉讼专家辅助人制度的出台。2012年专家辅助人制度首次被写进刑事诉讼法，其不仅以基本法的高度确立了专家辅助人制度，而且为我国鉴定制度改革埋下了伏笔。但我们也应看到新刑事诉讼法只用了一个条文对此制度进行概括，，这不免引起学术界与司法实践领域的热议，毕竟有流于形式之嫌并且很难满足司法实践的需求。因此我们有必要借鉴域外相关制度的规定与立足本国法治建设国情，努力构建一套符合我国刑事诉讼实践需要的专家辅助人制度，从而使该制度与鉴定制度良性运转，实现法治进步。本文共分为四大部分： 第一部分是专家辅助人制度概述。首先介绍了专家辅助人制度的概念，通过对相关概念的辨析，对专家辅助人进行准确定义。之后，重点探讨了专家辅助人的地位，通过与相关诉讼参与人进行比较分析后对专家辅助人进行角色定位。专家辅助人地位的确立影响着其整个制度内容的构建，意义重大。 第二部分是专家辅助人制度在我国运行的现状及其存在的问题。该部分首先简要介绍了一下专家辅助人制度的背景，其中包括该制度产生的原因及其价值。然后介绍该制度在立法与司法上的现状和总结了该制度的不足之处以及其在我国诉讼领域并未得到推广的原因，为下两部分的研究做基础。 第三部分是域外相关制度的考察与评析。该部分重点介绍了意大利的技术顾问制度与俄罗斯的专家辅助人制度，两个国家该制度发展已经相当完备并且司法实践效果突出。同时还对英国、日本、法国的专家辅助人立法上的特色之处进行了介绍。通过对这两大法系国家有关该制度异同的归纳，为构建我国专家辅助人制度提供思路。 第四部分是完善我国刑事诉讼专家辅助人制度的构想。在前文对专家辅助人基本理论与域外相关国家规定的基础上，分别从专家辅助人的适格制度、权利义务、责任、参与诉讼程序等方面对专家辅助人制度进行了全面构建。同时还提出对相关配套制度的建设问题，以期能够使我国专家辅助人制度更加完善。
[Abstract]:The expert assistant system is not a new system, whether in common law countries or civil law countries, the expert assistant system has been quite complete, and has been widely used in judicial practice. Ten years ago, the system of expert assistance was stipulated in the civil procedure law and administrative procedure law of our country, and the content was constantly improved, but the effect of judicial practice was not satisfactory, the system was not widely used, and its function was not brought into full play. The fundamental reason is that our country does not have a complete set of expert assistance system, that is, the legislative imperfections, which leads to the confusion of judicial practice. The scientific progress, the need of the construction of the rule of law, the hard injury of the appraisal system and the frequent occurrence of false and false cases all give birth to the introduction of the expert assistant system in criminal proceedings in our country. In 2012, the expert assistant system was first written into the criminal procedure law, which not only established the expert assistant system with the height of the basic law, but also laid the groundwork for the reform of the appraisal system in our country. However, we should also see that the new criminal procedure law uses only one provision to summarize this system, which can not help but cause heated discussion in the field of academic and judicial practice, after all, there is suspicion of being mere form and it is difficult to meet the needs of judicial practice. Therefore, it is necessary for us to draw lessons from the provisions of the relevant foreign systems and base on the national conditions of the construction of the rule of law in our country, and strive to construct a set of expert assistance system in accordance with the needs of the practice of criminal proceedings in our country, so as to make the system and appraisal system work healthily and realize the progress of the rule of law. This paper is divided into four parts: the first part is an overview of the expert assistance system. Firstly, the concept of expert assistant system is introduced, and the expert assistant is accurately defined by analyzing and analyzing the related concepts. After that, the status of expert assistant is discussed, and the role of expert assistant is defined by comparing with the relevant litigation participants. The establishment of expert assistant status affects the construction of its whole system content, which is of great significance. The second part is the current situation and existing problems of expert assistance system in our country. This part first briefly introduces the background of the expert assistant system, including the causes and value of the system. Then it introduces the present situation of the system in legislation and judicature and summarizes the shortcomings of the system and the reasons why it has not been popularized in the field of litigation in our country, which is the basis for the next two parts of the study. The third part is the investigation and evaluation of the foreign related system. This part focuses on the technical advisory system in Italy and the expert assistant system in Russia. The development of the system has been quite complete and the judicial practice effect is outstanding in the two countries. At the same time, it also introduces the characteristics of expert assistance legislation in Britain, Japan and France. Through the induction of the similarities and differences between the two legal countries, this paper provides ideas for the construction of expert assistant system in our country. The fourth part is the conception of perfecting the expert assistant system of criminal procedure in our country. On the basis of the basic theory of expert helper and the provisions of relevant countries abroad, this paper constructs the expert assistant system from the aspects of suitability system, rights and obligations, responsibility, participation in litigation procedure and so on. At the same time, it also puts forward the construction of the relevant supporting system, in order to make the expert assistant system more perfect in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2507593
[Abstract]:The expert assistant system is not a new system, whether in common law countries or civil law countries, the expert assistant system has been quite complete, and has been widely used in judicial practice. Ten years ago, the system of expert assistance was stipulated in the civil procedure law and administrative procedure law of our country, and the content was constantly improved, but the effect of judicial practice was not satisfactory, the system was not widely used, and its function was not brought into full play. The fundamental reason is that our country does not have a complete set of expert assistance system, that is, the legislative imperfections, which leads to the confusion of judicial practice. The scientific progress, the need of the construction of the rule of law, the hard injury of the appraisal system and the frequent occurrence of false and false cases all give birth to the introduction of the expert assistant system in criminal proceedings in our country. In 2012, the expert assistant system was first written into the criminal procedure law, which not only established the expert assistant system with the height of the basic law, but also laid the groundwork for the reform of the appraisal system in our country. However, we should also see that the new criminal procedure law uses only one provision to summarize this system, which can not help but cause heated discussion in the field of academic and judicial practice, after all, there is suspicion of being mere form and it is difficult to meet the needs of judicial practice. Therefore, it is necessary for us to draw lessons from the provisions of the relevant foreign systems and base on the national conditions of the construction of the rule of law in our country, and strive to construct a set of expert assistance system in accordance with the needs of the practice of criminal proceedings in our country, so as to make the system and appraisal system work healthily and realize the progress of the rule of law. This paper is divided into four parts: the first part is an overview of the expert assistance system. Firstly, the concept of expert assistant system is introduced, and the expert assistant is accurately defined by analyzing and analyzing the related concepts. After that, the status of expert assistant is discussed, and the role of expert assistant is defined by comparing with the relevant litigation participants. The establishment of expert assistant status affects the construction of its whole system content, which is of great significance. The second part is the current situation and existing problems of expert assistance system in our country. This part first briefly introduces the background of the expert assistant system, including the causes and value of the system. Then it introduces the present situation of the system in legislation and judicature and summarizes the shortcomings of the system and the reasons why it has not been popularized in the field of litigation in our country, which is the basis for the next two parts of the study. The third part is the investigation and evaluation of the foreign related system. This part focuses on the technical advisory system in Italy and the expert assistant system in Russia. The development of the system has been quite complete and the judicial practice effect is outstanding in the two countries. At the same time, it also introduces the characteristics of expert assistance legislation in Britain, Japan and France. Through the induction of the similarities and differences between the two legal countries, this paper provides ideas for the construction of expert assistant system in our country. The fourth part is the conception of perfecting the expert assistant system of criminal procedure in our country. On the basis of the basic theory of expert helper and the provisions of relevant countries abroad, this paper constructs the expert assistant system from the aspects of suitability system, rights and obligations, responsibility, participation in litigation procedure and so on. At the same time, it also puts forward the construction of the relevant supporting system, in order to make the expert assistant system more perfect in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
【参考文献】
相关期刊论文 前2条
1 黄敏;我国应当建立“专家辅助人”制度——意大利“技术顾问”制度之借鉴[J];中国司法鉴定;2003年04期
2 王俊民;沈亮;;诉讼辅助人意见与鉴定结论证据属性比较研究[J];中国司法鉴定;2006年06期
本文编号：2507593
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