法医学鉴定制度研究
发布时间：2019-04-12 07:04
【摘要】：随着社会的不断发展,科学技术的进步,特别是近十年来,科学技术已深入到社会政治、经济、文化等各个领域,这些领域内发生的犯罪案件和引起的犯罪案件和引起的诉讼争议也与日俱增,其中涉及科技证据的范围和种类也相应增多。以我国为例,80年代科技证据在诉讼中的运用仅占百分之几,90年代以后,由于法律体系逐渐完备,尤其是刑法修订及证据制度、庭审制度的改革,科技证据在诉讼中的运用达百分之四十以上,在有的案件中它已经成为关键证据,甚至进孤证。全国司法鉴定机构也由过去的每年鉴定几万件、十几万件而跃升到几十万件以至上百万件。鉴定专业范围也由过去的四大传统门类(物证技术学子、法医学、司法精神病学、司法会计学)扩展到三、四十个专业学科近千个鉴定对象。但是相关的司法鉴定方面的立法却严重滞后于司法实践,导致了鉴定体制不顺,管理混乱。人民群众对司法鉴定改革的呼声也越来越高。本人依法医学鉴定为切入点,主要以刑事诉讼中的法医学鉴定为对象展开讨论。比较系统地分析了法医学鉴定的性质及特点、鉴定的过程、分类、条件等相关内容,回顾了法医学鉴定的发展史,对古今中外的法医学鉴定制度作了比较详细的介绍。明确了法医学鉴定只是诉讼活动中的一种发现证据、审查与核实证据的活动。是用法医学知识与技术诉讼中的专门性问题所作的识别与判断。它贯穿于侦查、起诉、审判、乃至执行等诉讼阶段的各个过程。它提供的是法律科技服务,是一种科学实证活动。提出对法医学鉴定的定位及在刑事诉讼中的作用及体制的建构除了尊重刑事诉讼的价值规律外,更应当尊重其作为一门自然科学的属性及规律。本文从鉴定主体的确立、鉴定决定权、鉴定的实施、鉴定人资格的确定、鉴定人的权利、义务、鉴定的救济制度、鉴定体制的构建等方面对中外的法医学鉴定制度作了比较,明晰了我国目前法医学鉴定体制混乱的原因,提出了在我国现阶段为确保法医学鉴定的客观、公正、公平应逐步建立独立与司法机关的集中型的法医学鉴定体制。要充分依托大学等学术机构,充分借鉴德国的法医学鉴定模式,从体制层面去克服目前分散型的鉴定体制下的种种弊端,从而使鉴定结论更具有权威性,严肃性,更好地服务于我国的司法诉讼活动。
[Abstract]:With the continuous development of society and the progress of science and technology, especially in the past decade, science and technology have gone deep into various fields such as social politics, economy, culture, and so on. The number of criminal cases and litigation disputes in these areas has also increased, and the scope and type of scientific and technological evidence has increased accordingly. Taking China as an example, the use of scientific and technological evidence in litigation in the 1980s accounted for only a few percent. After the 1990s, due to the gradual perfection of the legal system, especially the revision of the criminal law and the reform of the evidence system and the trial system, The use of scientific and technological evidence in litigation has reached more than 40%, and in some cases it has become the key evidence, even into solitary evidence. National forensic authorities have also jumped from tens of thousands and more than 100, 000 each year to hundreds of thousands or even millions. The scope of expertise has also been extended from four traditional categories (forensic science, forensic psychiatry, judicial accounting) to nearly 1,000 identification subjects in thirty or forty specialties. However, the related legislation of judicial expertise lags behind the judicial practice seriously, which leads to the disorderly appraisal system and the confusion of management. The people's voice for judicial appraisal reform is also getting higher and higher. According to the law of medical identification as the starting point, mainly in the criminal procedure forensic expertise as the object of discussion. This paper makes a systematic analysis of the nature and characteristics of forensic expertise, the process, classification and conditions of forensic expertise, reviews the development history of forensic expertise, and gives a more detailed introduction to the forensic expertise system at home and abroad in ancient and modern times. It is clear that forensic expertise is only one of the activities of discovery, examination and verification of evidence in litigation. It is the identification and judgment of specialized problems in forensic knowledge and technical litigation. It runs through the various stages of investigation, prosecution, trial, and even execution. What it provides is the legal science and technology service, is a kind of scientific demonstration activity. In addition to respecting the law of value of criminal procedure, the author points out that the orientation of forensic expertise and the construction of its function and system in criminal procedure should not only respect the law of value of criminal procedure, but also respect its attribute and law as a natural science. This article makes a comparison between Chinese and foreign forensic medical identification systems from the aspects of the establishment of the subject, the power of determination, the implementation of the appraisal, the determination of the qualification of the appraiser, the rights and obligations of the appraiser, the relief system of the appraisal, and the construction of the appraisal system, and so on. This paper clarifies the reasons for the confusion of forensic expertise system in our country at present, and puts forward that in order to ensure the objectivity and justice of forensic expertise in our country at the present stage, the centralized forensic identification system of independent and judicial organs should be set up step by step. It is necessary to fully rely on universities and other academic institutions, fully learn from the German forensic medical identification model, and overcome all kinds of drawbacks under the current decentralized identification system from the institutional level, so as to make the appraisal conclusions more authoritative and solemn. Better serve our country's judicial litigation activities.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D919.4
本文编号：2456811
[Abstract]:With the continuous development of society and the progress of science and technology, especially in the past decade, science and technology have gone deep into various fields such as social politics, economy, culture, and so on. The number of criminal cases and litigation disputes in these areas has also increased, and the scope and type of scientific and technological evidence has increased accordingly. Taking China as an example, the use of scientific and technological evidence in litigation in the 1980s accounted for only a few percent. After the 1990s, due to the gradual perfection of the legal system, especially the revision of the criminal law and the reform of the evidence system and the trial system, The use of scientific and technological evidence in litigation has reached more than 40%, and in some cases it has become the key evidence, even into solitary evidence. National forensic authorities have also jumped from tens of thousands and more than 100, 000 each year to hundreds of thousands or even millions. The scope of expertise has also been extended from four traditional categories (forensic science, forensic psychiatry, judicial accounting) to nearly 1,000 identification subjects in thirty or forty specialties. However, the related legislation of judicial expertise lags behind the judicial practice seriously, which leads to the disorderly appraisal system and the confusion of management. The people's voice for judicial appraisal reform is also getting higher and higher. According to the law of medical identification as the starting point, mainly in the criminal procedure forensic expertise as the object of discussion. This paper makes a systematic analysis of the nature and characteristics of forensic expertise, the process, classification and conditions of forensic expertise, reviews the development history of forensic expertise, and gives a more detailed introduction to the forensic expertise system at home and abroad in ancient and modern times. It is clear that forensic expertise is only one of the activities of discovery, examination and verification of evidence in litigation. It is the identification and judgment of specialized problems in forensic knowledge and technical litigation. It runs through the various stages of investigation, prosecution, trial, and even execution. What it provides is the legal science and technology service, is a kind of scientific demonstration activity. In addition to respecting the law of value of criminal procedure, the author points out that the orientation of forensic expertise and the construction of its function and system in criminal procedure should not only respect the law of value of criminal procedure, but also respect its attribute and law as a natural science. This article makes a comparison between Chinese and foreign forensic medical identification systems from the aspects of the establishment of the subject, the power of determination, the implementation of the appraisal, the determination of the qualification of the appraiser, the rights and obligations of the appraiser, the relief system of the appraisal, and the construction of the appraisal system, and so on. This paper clarifies the reasons for the confusion of forensic expertise system in our country at present, and puts forward that in order to ensure the objectivity and justice of forensic expertise in our country at the present stage, the centralized forensic identification system of independent and judicial organs should be set up step by step. It is necessary to fully rely on universities and other academic institutions, fully learn from the German forensic medical identification model, and overcome all kinds of drawbacks under the current decentralized identification system from the institutional level, so as to make the appraisal conclusions more authoritative and solemn. Better serve our country's judicial litigation activities.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D919.4
【引证文献】
相关期刊论文 前2条
1 李菊萍;;关于《法医学》实验教学的改革初探[J];高校实验室工作研究;2009年03期
2 刘亮;;中国法医学司法鉴定体制的问题及改革[J];法制与社会;2013年23期
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1条
1 金悦;精神病犯罪嫌疑人、被告人刑事诉讼特殊程序问题研究[D];中国政法大学;2007年
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