论鉴定结论之科学性与审查评断
发布时间：2018-11-02 11:47
【摘要】：鉴定结论给现代诉讼带来了严峻的挑战。也许有点悖论的味道,鉴定结论已经成为诉讼活动中最具投机性和主观性的成分。作为鉴定结论审查评断主体的法官急需相关理论的指导。同时,随着诉讼模式的对抗性日益增强,当事双方对鉴定结论科学性的审查工作也日趋实质化,此外,如何提高鉴定结论的客观性也成为亟待解决的一个问题。 一段时间以来,有关鉴定结论科学性的争论在国内外都十分激烈,鉴定结论的地位和作用受到了前所未有的挑战。有些学者对司法理性主义提出了质疑,并进而否定鉴定结论的科学性。 本文就鉴定结论的科学性根基问题进行了分析,并对鉴定结论科学性的审查评断工作进行了探讨,同时,相应地论及鉴定结论科学性的保障问题。本文共分两大部分,除引言外,共计约28,000字。 探讨鉴定结论的科学性问题,必须从鉴定结论的科学性根基入手。本文第一部分着重论述鉴定结论的科学性根基。具体而言,鉴定结论的科学性根基包括以下两个方面的因素:鉴定结论的“科学”基础问题,以及司法鉴定的特殊性问题。从某种层面上讲,鉴定结论源自司法鉴定活动,讨论鉴定结论的科学性基础,毋宁说是探讨司法鉴定的科学性基础问题。 针对鉴定结论的“科学”基础问题,本文讨论了司法鉴定与作为其基础的“科学”的关系,并剖析了科学真理与实用主义、理性主义与科学真理之间的关系。从认识论的角度出发,科学知识作为鉴定结论的基础仍然具有其正当性,通过否定科学本身来动摇鉴定结论科学性无疑是一种“无谓之举”。但同时,应当注意到,司法鉴定活动并不等同于传统意义上的科学活动,为了明确这种差异,需要考察司法鉴定所具有的特殊性。 考虑到司法鉴定作为应用科学的特殊性所在,本文具体探讨了司法鉴定领域内在的冲突,从法庭上的科学结论、法庭上的鉴定人员、以及法庭上科学的确定性三个方面分析了科学与法律之间的复杂关系。司法系统将探求真理作为获取公正审判的一种手段。科学共同体将真理视为知识的组成部分。尽管两者都以一些基础的方式探求“真理”,但司法系统和科学共同体在内在的功能、价值和目标上存在着很大的区别。鉴定人员和事实裁判者应当认识到这种区别,从而使科学对司法系统起到积极的作用。 本文第二部分探讨了鉴定结论科学性之审查评断问题。在审判中心主
[Abstract]:The conclusion of appraisal brings severe challenge to modern litigation. Perhaps paradoxical, expertise has become the most speculative and subjective element of litigation. The judge, as the subject of appraisal conclusion review, needs guidance from relevant theories. At the same time, with the increasing adversarial of litigation mode, the examination of the scientific conclusion of the two parties is becoming more and more substantial. In addition, how to improve the objectivity of the conclusion has become a problem to be solved urgently. For a period of time, the controversy about the scientific nature of the appraisal conclusion is very fierce at home and abroad, and the status and function of the appraisal conclusion have been facing unprecedented challenge. Some scholars have questioned the judicial rationalism and denied the scientific nature of the conclusion. This paper analyzes the scientific foundation of the appraisal conclusion, probes into the examination and evaluation of the scientific nature of the appraisal conclusion, and at the same time, discusses the guarantee of the scientific nature of the appraisal conclusion. This paper is divided into two parts, in addition to the introduction, a total of about 28000 words. To probe into the scientific problem of the appraisal conclusion, we must start with the scientific foundation of the appraisal conclusion. The first part of this paper focuses on the scientific basis of the appraisal conclusions. In particular, the scientific basis of the conclusion includes the following two factors: the scientific basis of the conclusion and the particularity of the judicial expertise. On a certain level, the conclusion of identification originates from the activity of judicial expertise. It is better to discuss the scientific basis of the conclusion of identification than to discuss the scientific basis of judicial expertise. In this paper, we discuss the relationship between forensic expertise and "science" as its basis, and analyze the relationship between scientific truth and pragmatism, rationalism and scientific truth. From the perspective of epistemology, scientific knowledge as the basis of the appraisal conclusion still has its legitimacy. It is no doubt a "meaningless act" to shake the scientific conclusion by negating the science itself. But at the same time, it should be noted that forensic expertise is not equal to the traditional scientific activities, in order to clarify this difference, it is necessary to examine the particularity of forensic expertise. Considering the particularity of forensic expertise as applied science, this paper specifically discusses the inherent conflicts in the field of forensic expertise. The complex relationship between science and law is analyzed in three aspects: the certainty of science in court. The judicial system uses the search for truth as a means of obtaining a fair trial. The scientific community regards truth as an integral part of knowledge. Although both seek "truth" in some basic ways, the judicial system and the scientific community have great differences in their internal functions, values and goals. Judges and fact judges should recognize this distinction so that science can play a positive role in the judicial system. The second part of this paper discusses the scientific evaluation of the appraisal conclusions. At the trial center.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D918.9;D915.13
本文编号：2305924
[Abstract]:The conclusion of appraisal brings severe challenge to modern litigation. Perhaps paradoxical, expertise has become the most speculative and subjective element of litigation. The judge, as the subject of appraisal conclusion review, needs guidance from relevant theories. At the same time, with the increasing adversarial of litigation mode, the examination of the scientific conclusion of the two parties is becoming more and more substantial. In addition, how to improve the objectivity of the conclusion has become a problem to be solved urgently. For a period of time, the controversy about the scientific nature of the appraisal conclusion is very fierce at home and abroad, and the status and function of the appraisal conclusion have been facing unprecedented challenge. Some scholars have questioned the judicial rationalism and denied the scientific nature of the conclusion. This paper analyzes the scientific foundation of the appraisal conclusion, probes into the examination and evaluation of the scientific nature of the appraisal conclusion, and at the same time, discusses the guarantee of the scientific nature of the appraisal conclusion. This paper is divided into two parts, in addition to the introduction, a total of about 28000 words. To probe into the scientific problem of the appraisal conclusion, we must start with the scientific foundation of the appraisal conclusion. The first part of this paper focuses on the scientific basis of the appraisal conclusions. In particular, the scientific basis of the conclusion includes the following two factors: the scientific basis of the conclusion and the particularity of the judicial expertise. On a certain level, the conclusion of identification originates from the activity of judicial expertise. It is better to discuss the scientific basis of the conclusion of identification than to discuss the scientific basis of judicial expertise. In this paper, we discuss the relationship between forensic expertise and "science" as its basis, and analyze the relationship between scientific truth and pragmatism, rationalism and scientific truth. From the perspective of epistemology, scientific knowledge as the basis of the appraisal conclusion still has its legitimacy. It is no doubt a "meaningless act" to shake the scientific conclusion by negating the science itself. But at the same time, it should be noted that forensic expertise is not equal to the traditional scientific activities, in order to clarify this difference, it is necessary to examine the particularity of forensic expertise. Considering the particularity of forensic expertise as applied science, this paper specifically discusses the inherent conflicts in the field of forensic expertise. The complex relationship between science and law is analyzed in three aspects: the certainty of science in court. The judicial system uses the search for truth as a means of obtaining a fair trial. The scientific community regards truth as an integral part of knowledge. Although both seek "truth" in some basic ways, the judicial system and the scientific community have great differences in their internal functions, values and goals. Judges and fact judges should recognize this distinction so that science can play a positive role in the judicial system. The second part of this paper discusses the scientific evaluation of the appraisal conclusions. At the trial center.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D918.9;D915.13
【引证文献】
相关博士学位论文 前1条
1 陶涛;法医学尸体解剖鉴定结论的规范化研究[D];四川大学;2007年
相关硕士学位论文 前6条
1 姚蕾;论我国司法鉴定意见认证规则之构建[D];复旦大学;2010年
2 李莹;刑事科学证据研究[D];山东大学;2011年
3 王琼仙;论我国刑事鉴定结论的证据能力[D];西南政法大学;2008年
4 朱胜;刑事物证鉴定结论科学性问题研究[D];西南政法大学;2008年
5 张琪;刑事鉴定结论认证制度研究[D];华东政法大学;2009年
6 陈永佳;论刑事诉讼中科学证据的认证[D];西南政法大学;2010年
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