司法鉴定责任论
发布时间：2018-10-21 08:52
【摘要】： 司法鉴定责任制度是司法鉴定制度的组成部分，也是司法程序中的组成部分。我国司法鉴定责任制度很不完善。司法鉴定具有科学性、法律性、被动性、中立性和亲历性等特性，而科学性是其本质属性。建立与完善司法鉴定责任制度，对于推动司法改革，深化人们对司法鉴定科学性的认识、促进鉴定科学的发展和技术水平的提高，强化鉴定人责任心，对因错误鉴定而遭受损失的受害者救济、维护当事人合法权益都具有重要意义。司法鉴定责任的类型，可以从不同角度去划分，，但司法鉴定责任的主要性质是民事侵权责任。鉴定人主观上有故意或重大过失、违法鉴定行为、损害结果、违法鉴定行为与损害结果有因果关系，是这一侵权责任的构成要件。鉴定入侵权责任主观要件排除一般过失，具有特别重要的意义，与此相适应，司法鉴定民事侵权归责原则是比过错归责原则或过错推定原则更为严格的归责原则，即严格责任原则。科学认识的有限性、技术水平的局限性、受害者的过错和职务行为是责任追究的抗辩事由。我国司法鉴定责任制度存在的问题主要在于：伪证罪的规定存在疏漏，因错鉴给利害关系人造成损失缺乏民事责任的规定，行政责任全国不统一。构建我国司法鉴定责任制度，必须注意几个原则性问题：既不能借口认识的主观性和实践的相对性来规避责 任，也不能过分强调认识的客观性和实践的绝对性而一味地 从严追究责任;必须与我国司法鉴定体制相协调;鉴定人承 担法定义务和约定义务是责任追究的前提。完善我国司法鉴 定责任制度的总体思路是:在鉴定人的法定义务上，应由单 方面注重鉴定权主义的义务观向鉴定权主义义务观与当事 人主义义务观并重转变;在责任主体上，应由机构责任向自 然人责任转变;在责任内容上，应由刑事责任、行政责任为 主向以民事责任为主转变;在责任性质上，应由以契约责任、 侵权责任为主向以侵权责任、请求权竞合为主转变;在赔偿 实现上，建立鉴定人执业保险或执业互济制度。
[Abstract]:The responsibility system of judicial expertise is an integral part of judicial identification system as well as a component of judicial procedure. The responsibility system of judicial expertise in our country is not perfect. Forensic expertise has the characteristics of science, law, passivity, neutrality and personal experience, and scientific nature is its essential attribute. To establish and perfect the responsibility system of judicial expertise can promote judicial reform, deepen people's understanding of the scientific nature of judicial expertise, promote the development of identification science and raise the level of technology, and strengthen the sense of responsibility of experts. It is of great significance to protect the legal rights and interests of the victims who have suffered losses as a result of false identification. The types of forensic liability can be divided from different angles, but the main nature of forensic liability is civil tort liability. The connoisseur has the subjective intention or the gross negligence, the illegal appraisal behavior, the damage result, the illegal appraisal behavior and the damage result has the causality, is the constitution element of this tort liability. It is very important to identify the subjective elements of tort liability to exclude general negligence. In accordance with this, the principle of imputation of civil tort of judicial expertise is more strict than the principle of fault imputation or the principle of presumption of fault. The principle of strict liability. The limitation of scientific understanding, the limitation of technical level, the fault of victim and the duty behavior are the defense reasons of investigating responsibility. The main problems of the judicial identification liability system in our country lie in: the regulation of perjury crime is negligent, the administrative liability is not unified all over the country because of the lack of civil liability for the damage caused to the interested parties by mistake. To construct the responsibility system of judicial expertise in China, We must pay attention to several issues of principle: we can not evade responsibility under the pretext of subjectivity of cognition and relativity of practice. Nor can we overemphasize the objectivity of cognition and the absoluteness of practice and blindly investigate the responsibility blindly, which must be coordinated with the system of judicial expertise in our country. The ascertainer undertakes the legal obligation and the agreement obligation is the premise of the responsibility investigation. The general idea of perfecting the system of judicial judgment liability in our country is as follows: in the legal obligation of expert judge, It should be changed from the obligation view of the one-sided right doctrine to the duty view of the appraisal right doctrine and the owner of the party concerned. The concept of righteousness and obligation should be changed equally; In terms of the subject of responsibility, the responsibility of the institution should be changed into the responsibility of the person of his own accord, and the content of the responsibility should be changed by the responsibility of the criminal. Administrative liability is the main change to civil liability; in terms of the nature of liability, It should be changed from contractual liability, tort liability to tort liability and competing right of claim. To establish a system of authenticator practice insurance or mutual assistance in practice.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D918.9
本文编号：2284606
[Abstract]:The responsibility system of judicial expertise is an integral part of judicial identification system as well as a component of judicial procedure. The responsibility system of judicial expertise in our country is not perfect. Forensic expertise has the characteristics of science, law, passivity, neutrality and personal experience, and scientific nature is its essential attribute. To establish and perfect the responsibility system of judicial expertise can promote judicial reform, deepen people's understanding of the scientific nature of judicial expertise, promote the development of identification science and raise the level of technology, and strengthen the sense of responsibility of experts. It is of great significance to protect the legal rights and interests of the victims who have suffered losses as a result of false identification. The types of forensic liability can be divided from different angles, but the main nature of forensic liability is civil tort liability. The connoisseur has the subjective intention or the gross negligence, the illegal appraisal behavior, the damage result, the illegal appraisal behavior and the damage result has the causality, is the constitution element of this tort liability. It is very important to identify the subjective elements of tort liability to exclude general negligence. In accordance with this, the principle of imputation of civil tort of judicial expertise is more strict than the principle of fault imputation or the principle of presumption of fault. The principle of strict liability. The limitation of scientific understanding, the limitation of technical level, the fault of victim and the duty behavior are the defense reasons of investigating responsibility. The main problems of the judicial identification liability system in our country lie in: the regulation of perjury crime is negligent, the administrative liability is not unified all over the country because of the lack of civil liability for the damage caused to the interested parties by mistake. To construct the responsibility system of judicial expertise in China, We must pay attention to several issues of principle: we can not evade responsibility under the pretext of subjectivity of cognition and relativity of practice. Nor can we overemphasize the objectivity of cognition and the absoluteness of practice and blindly investigate the responsibility blindly, which must be coordinated with the system of judicial expertise in our country. The ascertainer undertakes the legal obligation and the agreement obligation is the premise of the responsibility investigation. The general idea of perfecting the system of judicial judgment liability in our country is as follows: in the legal obligation of expert judge, It should be changed from the obligation view of the one-sided right doctrine to the duty view of the appraisal right doctrine and the owner of the party concerned. The concept of righteousness and obligation should be changed equally; In terms of the subject of responsibility, the responsibility of the institution should be changed into the responsibility of the person of his own accord, and the content of the responsibility should be changed by the responsibility of the criminal. Administrative liability is the main change to civil liability; in terms of the nature of liability, It should be changed from contractual liability, tort liability to tort liability and competing right of claim. To establish a system of authenticator practice insurance or mutual assistance in practice.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D918.9
【引证文献】
相关硕士学位论文 前3条
1 王蕾;论我国刑事诉讼中鉴定人的民事责任[D];湘潭大学;2011年
2 张建华;司法鉴定人权责制度：梳理、评析与完善[D];中南大学;2007年
3 陈楠楠;司法鉴定人民事责任研究[D];湖南师范大学;2012年
本文编号：2284606
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