司法鉴定人选任制度研究
发布时间：2018-10-14 12:57
【摘要】： 作为司法制度的重要组成部分,司法鉴定制度在现代诉讼中发挥着日益重要的作用。司法鉴定人是司法鉴定工作的具体承担者和实施者,而司法鉴定人的选任因其对鉴定过程乃至对鉴定意见的重大影响,被认为是鉴定人制度中的核心问题。司法鉴定人选任制度实际上包含三个方面的问题,一是谁来选的问题(主体问题),二是选谁的问题(客体问题),三是怎么选的问题(中介问题)。以上三个方面问题即分别是鉴定人选任权配置、鉴定人资质和鉴定人选任方式问题。这三个方面之间相互衔接、环环相扣,从而使司法鉴定人的选任呈现出完整的动态过程。 2005年2月全国人大常委会审议通过《关于司法鉴定管理问题的决定》,2005年9月司法部公布《司法鉴定人登记管理办法》,2007年8月司法部公布《司法鉴定程序通则》,对我国司法鉴定人的选任作了初步规范,初步确立了司法鉴定人选任制度的基本框架。但是,这些法律、规章的规定过于原则和笼统,没有从根本上消除现行司法鉴定人选任制度存在的,诸如鉴定人选任权配置不合理、鉴定人资格制度不完备以及鉴定人选任方式不民主等亟待解决的问题。因此,从建立系统、完善的司法鉴定人选任制度目标出发,有必要对我国司法鉴定人选任制度的相关问题作进一步的研究和探讨。 构建符合现代诉讼要求,兼顾公正、效率的司法鉴定人选任制度,一方面必须把握两大法系国家司法鉴定人选任制度发展趋势,从比较研究中探求规律,汲取营养;另一方面必须植根本土资源,在我国诉讼制度改革整体架构中,找到一条符合现实国情的鉴定人选任制度改革之路。在我国司法鉴定人选任制度的具体构想上,一是要构建当事人为主、法院为辅的司法鉴定人选任权配置模式;二是要建立严格完备的司法鉴定人资格制度;三是要确立当事人合意基础上的司法鉴定人选任方式;四是要建立和完善专家辅助人制度、司法鉴定人回避制度、司法鉴定人重新选任制度、司法鉴定法律援助制度等相关配套制度。
[Abstract]:As an important part of judicial system, judicial expertise system plays an increasingly important role in modern litigation. The judicial expert is the concrete bearer and the implementer of the judicial appraisal, and the selection of the judicial expert is considered the core problem in the system of the expert because of its great influence on the appraisal process and even on the appraisal opinion. The system of selecting and appointing judicial appraisers actually includes three aspects: one is who chooses (subject), the other is who (object), and the third is how to choose (intermediary). The above three problems are the allocation of experts' right of selection, the qualification of experts and the selection of experts. These three aspects are interlinked with each other, In February 2005, the standing Committee of the National people's Congress deliberated and adopted the decision on the Administration of Forensic expertise, which was published by the Ministry of Justice in September 2005. Methods for the Administration of the Registration of legal experts. In August 2007, the Ministry of Justice promulgated the General rules for Forensic Identification procedures, which made a preliminary standard for the selection and appointment of judicial experts in China. It establishes the basic frame of the system of selecting and appointing judicial experts. However, the provisions of these laws and regulations are too principled and general, and do not fundamentally eliminate the existence of the current system of selecting and appointing judicial experts, such as the unreasonable allocation of experts' right to choose. The problems such as incomplete qualification system and undemocratic selection of experts need to be solved. Therefore, it is necessary to further study and discuss the relevant problems of judicial expert selection system in our country from the goal of establishing a system and a perfect system of selecting and appointing judicial appraisers. On the one hand, we must grasp the development trend of judicial appraiser selection system in the two legal system countries, and seek the law from the comparative study, and absorb the nutrition; On the other hand, we must take root in the local resources and find a way to reform the system of selecting and appointing experts in accordance with the actual situation in the overall framework of the reform of litigation system in our country. In the concrete conception of the judicial expert selection system in our country, the first is to construct the mode of allocation of judicial expert's right to choose and appoint, the other is to establish a strict and complete system of judicial expert qualification, the first is to construct the allocation mode of judicial expert's right, the other is to set up a strict and complete system of judicial expert's qualification. Third, it is necessary to establish the method of selecting and appointing judicial experts on the basis of the parties' agreement; fourth, to establish and perfect the system of expert assistant persons, judicial experts' withdrawal system, and judicial experts' re-appointment system. Judicial expertise legal aid system and other related supporting systems.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D918.9
本文编号：2270521
[Abstract]:As an important part of judicial system, judicial expertise system plays an increasingly important role in modern litigation. The judicial expert is the concrete bearer and the implementer of the judicial appraisal, and the selection of the judicial expert is considered the core problem in the system of the expert because of its great influence on the appraisal process and even on the appraisal opinion. The system of selecting and appointing judicial appraisers actually includes three aspects: one is who chooses (subject), the other is who (object), and the third is how to choose (intermediary). The above three problems are the allocation of experts' right of selection, the qualification of experts and the selection of experts. These three aspects are interlinked with each other, In February 2005, the standing Committee of the National people's Congress deliberated and adopted the decision on the Administration of Forensic expertise, which was published by the Ministry of Justice in September 2005. Methods for the Administration of the Registration of legal experts. In August 2007, the Ministry of Justice promulgated the General rules for Forensic Identification procedures, which made a preliminary standard for the selection and appointment of judicial experts in China. It establishes the basic frame of the system of selecting and appointing judicial experts. However, the provisions of these laws and regulations are too principled and general, and do not fundamentally eliminate the existence of the current system of selecting and appointing judicial experts, such as the unreasonable allocation of experts' right to choose. The problems such as incomplete qualification system and undemocratic selection of experts need to be solved. Therefore, it is necessary to further study and discuss the relevant problems of judicial expert selection system in our country from the goal of establishing a system and a perfect system of selecting and appointing judicial appraisers. On the one hand, we must grasp the development trend of judicial appraiser selection system in the two legal system countries, and seek the law from the comparative study, and absorb the nutrition; On the other hand, we must take root in the local resources and find a way to reform the system of selecting and appointing experts in accordance with the actual situation in the overall framework of the reform of litigation system in our country. In the concrete conception of the judicial expert selection system in our country, the first is to construct the mode of allocation of judicial expert's right to choose and appoint, the other is to establish a strict and complete system of judicial expert qualification, the first is to construct the allocation mode of judicial expert's right, the other is to set up a strict and complete system of judicial expert's qualification. Third, it is necessary to establish the method of selecting and appointing judicial experts on the basis of the parties' agreement; fourth, to establish and perfect the system of expert assistant persons, judicial experts' withdrawal system, and judicial experts' re-appointment system. Judicial expertise legal aid system and other related supporting systems.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D918.9
【引证文献】
相关硕士学位论文 前2条
1 漆涛;刑事司法鉴定的中立性研究[D];湖南大学;2010年
2 宋扬;论我国司法鉴定人资格的现状与改革[D];中南大学;2009年
，本文编号：2270521
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