论我国司法鉴定人制度的改革与完善
发布时间：2018-11-26 11:31
【摘要】：在科技日新月异发展的今天,有些案件法官们已不可能完全了解其中的事实,因而难以作出准确的判断,他们必须借助并依赖鉴定专家们的意见,且依赖于司法鉴定人的专业技术力量来帮助明察、知晓案件事实。诉讼中,由于法官和当事人对专门问题不具有相关专业的知识,不易对专家们作出的鉴定结论作出实质性的判断,因此司法鉴定人有时已实际成为“事实的裁判者”。另外在我国司法实践中还存在自侦自鉴、自检自鉴、自审自鉴、司法鉴定人素质参差不齐、司法鉴定人出庭率低等现象,这些现象已导致当事人对司法鉴定人及对他们做出的鉴定结论产生信任危机,严重影响到了司法的公正。 我国司法鉴定人制度目前存在的问题并不是司法鉴定人制度本身所造成的,也不是司法鉴定人制度不适合我国国情。表面上看,司法鉴定人制度存在的问题是由于鉴定人管理上的部门化、地方化所造成的。鉴定人制度存在的问题从深层次分析也不能单纯地归结于鉴定人制度立法不完善,主要原因是我国司法制度长期受前苏联的强职权主义理论的影响所致。尽管我国现行的三大诉讼法在诉讼模式的选择上有了重大改观,但实质上却仍带有强职权主义的色彩。表现在司法鉴定人制度中,就是没有将司法鉴定权进行合理地分配,也没有对权力进行制约,从而导致在诉讼中严重忽视当事人的诉讼权利,这种诉讼机制的严重失衡使当事人的诉权极度弱化,鉴定人在此背景下出具的鉴定结论也就时常成为拥有超级效力的证据。 司法鉴定人制度存在的诸多问题已引发人们深思。我国的司法鉴定人制度何去何从,是采取英美法系的专家证人制度还是采取大陆法系的鉴定人制度?学者们和司法工作人员各抒己见,争论不止。无论我国司法鉴定人制度选择何种模式,在制度的移植与建立过程中,我们都必须强调理论要能联系实际,优选的外来法律制度要能与我国的国情兼容,只有这样才能真正创建具有中国特色的鉴定人制度。 2005年2月28日通过的《全国人民代表大会常务委员会关于司法鉴定管理问题的决定》(以下简称为《决定》),不仅统一了鉴定人的资格及管理,解决了司法鉴定中的混乱局面,而且还明确司法鉴定的性质,《决定》同时还对司法鉴定人的角色进行了重新定位。基于此,本文在对国外司法鉴定人制度进行比较研究的基础上,运用鉴定人制度的一般理论,结合《决定》的规定,先剖析了我国司法鉴定人
[Abstract]:Today, with the rapid development of science and technology, it is impossible for judges in some cases to fully understand the facts among them, which makes it difficult to make accurate judgments. They must rely on and rely on the opinions of expert experts. And rely on the expertise of judicial experts to help understand and know the facts of the case. In litigation, because the judge and the party do not have the related professional knowledge on the specialized question, it is difficult to make the substantive judgment to the expert's appraisal conclusion, so the judicial expert sometimes has actually become "the fact judge". In addition, in the judicial practice of our country, there are some phenomena, such as self-detection, self-examination, uneven quality of judicial connoisseurs, and low court attendance rate of judicial connoisseurs. These phenomena have led to a crisis of trust in judicial connoisseurs and their conclusions, which has seriously affected the justice of justice. The problems existing in the system of judicial appraisers in our country are not caused by the system itself, nor is it not suitable for the national conditions of our country. On the surface, the problems existing in the system of judicial experts are caused by the division and localization of experts' management. The problems existing in the appraiser system can not be attributed to the imperfect legislation of the appraiser system. The main reason is that the judicial system of our country has been influenced by the former Soviet Union's theory of strong authority for a long time. Although the three procedural laws of our country have made great changes in the choice of litigation mode, in fact, they still have the color of strong authority. In the system of judicial appraiser, it does not distribute the right of judicial appraisal reasonably, nor restrict the power, which leads to the serious neglect of the litigant's litigation right in the lawsuit. The serious imbalance of the litigation mechanism makes the litigant's right of action extremely weak, and the expert's conclusion under this background often becomes the evidence with super validity. Many problems existing in the system of judicial appraisers have aroused people's deep thought. What is the future of the judicial expert system in our country? should we adopt the expert witness system in the common law system or the expert witness system in the continental law system? Scholars and judicial staff expressed their views and argued. No matter what kind of mode our judicial expert system chooses, in the process of transplanting and establishing the system, we must emphasize that the theory should be able to connect with the practice, and the foreign legal system should be compatible with the national conditions of our country. Only in this way can we really create a system of appraisers with Chinese characteristics. The decision of the standing Committee of the National people's Congress on the Administration of Forensic expertise (hereinafter referred to as "the decision"), adopted on February 28, 2005, not only unifies the qualifications and management of experts, It resolves the confusion in judicial expertise, and clarifies the nature of judicial expertise. At the same time, it relocates the role of judicial experts. Based on this, this paper, on the basis of comparative study of the foreign judicial appraiser system, applies the general theory of the appraiser system and combines the provisions of "decision" to analyze the judicial appraiser in our country first.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D918.9
本文编号：2358444
[Abstract]:Today, with the rapid development of science and technology, it is impossible for judges in some cases to fully understand the facts among them, which makes it difficult to make accurate judgments. They must rely on and rely on the opinions of expert experts. And rely on the expertise of judicial experts to help understand and know the facts of the case. In litigation, because the judge and the party do not have the related professional knowledge on the specialized question, it is difficult to make the substantive judgment to the expert's appraisal conclusion, so the judicial expert sometimes has actually become "the fact judge". In addition, in the judicial practice of our country, there are some phenomena, such as self-detection, self-examination, uneven quality of judicial connoisseurs, and low court attendance rate of judicial connoisseurs. These phenomena have led to a crisis of trust in judicial connoisseurs and their conclusions, which has seriously affected the justice of justice. The problems existing in the system of judicial appraisers in our country are not caused by the system itself, nor is it not suitable for the national conditions of our country. On the surface, the problems existing in the system of judicial experts are caused by the division and localization of experts' management. The problems existing in the appraiser system can not be attributed to the imperfect legislation of the appraiser system. The main reason is that the judicial system of our country has been influenced by the former Soviet Union's theory of strong authority for a long time. Although the three procedural laws of our country have made great changes in the choice of litigation mode, in fact, they still have the color of strong authority. In the system of judicial appraiser, it does not distribute the right of judicial appraisal reasonably, nor restrict the power, which leads to the serious neglect of the litigant's litigation right in the lawsuit. The serious imbalance of the litigation mechanism makes the litigant's right of action extremely weak, and the expert's conclusion under this background often becomes the evidence with super validity. Many problems existing in the system of judicial appraisers have aroused people's deep thought. What is the future of the judicial expert system in our country? should we adopt the expert witness system in the common law system or the expert witness system in the continental law system? Scholars and judicial staff expressed their views and argued. No matter what kind of mode our judicial expert system chooses, in the process of transplanting and establishing the system, we must emphasize that the theory should be able to connect with the practice, and the foreign legal system should be compatible with the national conditions of our country. Only in this way can we really create a system of appraisers with Chinese characteristics. The decision of the standing Committee of the National people's Congress on the Administration of Forensic expertise (hereinafter referred to as "the decision"), adopted on February 28, 2005, not only unifies the qualifications and management of experts, It resolves the confusion in judicial expertise, and clarifies the nature of judicial expertise. At the same time, it relocates the role of judicial experts. Based on this, this paper, on the basis of comparative study of the foreign judicial appraiser system, applies the general theory of the appraiser system and combines the provisions of "decision" to analyze the judicial appraiser in our country first.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D918.9
【引证文献】
相关硕士学位论文 前2条
1 王静;知识产权诉讼专家证人研究[D];河北大学;2007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：2358444
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