論鑒定結(jié)論的審查與運(yùn)用
發(fā)布時(shí)間：2019-06-01 21:05
【摘要】：證據(jù)是訴訟的核心內(nèi)容,訴訟活動(dòng)實(shí)際上就是圍繞著證據(jù)的收集、審查和運(yùn)用進(jìn)行的。隨著現(xiàn)代社會(huì)的飛速發(fā)展和科學(xué)技術(shù)的日新月異,鑒定結(jié)論作為一種獨(dú)具特色的證據(jù)表現(xiàn)形式,在訴訟中發(fā)揮著越來(lái)越重要的作用。但是,鑒定結(jié)論作為七大證據(jù)的一種,并不具有凌駕于其他證據(jù)之上的特殊地位,同樣需要法官的審查與判斷。目前,我國(guó)司法實(shí)踐中在鑒定結(jié)論的審查運(yùn)用方面存在不少問(wèn)題,如鑒定結(jié)論的科學(xué)性評(píng)判標(biāo)準(zhǔn)、鑒定結(jié)論質(zhì)證的程序制度等尚沒(méi)有明確的規(guī)定,對(duì)鑒定結(jié)論的采信難以達(dá)到科學(xué)化、規(guī)范化,使得鑒定結(jié)論的證據(jù)效能不能充分發(fā)揮。本文從鑒定結(jié)論的審查與運(yùn)用入手,對(duì)鑒定結(jié)論證據(jù)進(jìn)行研究,以期對(duì)盡快制定和完善司法鑒定法有所裨益。本論文分成三個(gè)部分,第一部分從杜培武案件、李華偉案件、李久明案件等三起刑事錯(cuò)案入手,剖析三起刑事錯(cuò)案中鑒定結(jié)論在案件定性中的作用,歸納出司法實(shí)踐中審查與運(yùn)用鑒定結(jié)論存在的主要問(wèn)題。第二部分主要研究我國(guó)現(xiàn)行法律對(duì)鑒定結(jié)論審查與運(yùn)用方面內(nèi)容的有關(guān)規(guī)定,因立法規(guī)定的過(guò)于原則、概括,導(dǎo)致司法實(shí)踐中運(yùn)用鑒定結(jié)論存在諸多問(wèn)題,并對(duì)這些問(wèn)題進(jìn)行分析破解。第三部分主要研究完善鑒定結(jié)論審查與運(yùn)用制度的構(gòu)想。首先對(duì)美國(guó)、英國(guó)等國(guó)家鑒定結(jié)論在法庭上的審查運(yùn)用情況進(jìn)行考察。然后結(jié)合我國(guó)立法現(xiàn)狀和司法實(shí)踐,提出應(yīng)建立我國(guó)鑒定結(jié)論的科學(xué)性評(píng)判標(biāo)準(zhǔn),并對(duì)該標(biāo)準(zhǔn)應(yīng)包涵的有關(guān)內(nèi)容提出個(gè)人見(jiàn)解。接著筆者對(duì)鑒定結(jié)論的證據(jù)能力、證明力進(jìn)行論述,研究鑒定結(jié)論的證據(jù)效力。提出借鑒英美法系國(guó)家的證據(jù)規(guī)則體系,引入非法證據(jù)規(guī)則、傳聞證據(jù)規(guī)則、品格證據(jù)規(guī)則等三大證據(jù)規(guī)則架構(gòu)鑒定結(jié)論證據(jù)規(guī)則。第一,建立非法證據(jù)規(guī)則。筆者提出的觀點(diǎn)主要包括,非法鑒定結(jié)論應(yīng)排除適用；建立在非法證據(jù)技術(shù)上的鑒定結(jié)論應(yīng)排除適用；科學(xué)性、準(zhǔn)確性不高的鑒定結(jié)論應(yīng)排除適用。第二,建立傳聞證據(jù)規(guī)則。為了與我國(guó)現(xiàn)代訴訟模式和司法理念相適應(yīng)、與司法程序公正的要求相適應(yīng)、與鑒定結(jié)論證據(jù)證明的規(guī)律相適應(yīng),提出除了法定的鑒定人可以不出庭的情形外,在庭審過(guò)程中鑒定人無(wú)法定理由均必須出庭,對(duì)于無(wú)正當(dāng)理由拒不出庭的,其所作的鑒定結(jié)論不具有證據(jù)能力,不能被法庭采納,從而限制了不出庭鑒定人的鑒定結(jié)論的采信。第三,建立品格證據(jù)。提出可以在法院內(nèi)部建立鑒定機(jī)構(gòu)、鑒定人誠(chéng)信檔案,將以此作為鑒定結(jié)論采信與否的一個(gè)參考因素。誠(chéng)信檔案的建立對(duì)鑒定機(jī)構(gòu)、鑒定人會(huì)產(chǎn)生一定的威懾力,促使其更加關(guān)注鑒定質(zhì)量,確保鑒定結(jié)論的公正、準(zhǔn)確。在鑒定結(jié)論的證明力方面,筆者認(rèn)為要運(yùn)用現(xiàn)代心證原則評(píng)判鑒定結(jié)論,應(yīng)在充分聽(tīng)取控辯雙方關(guān)于鑒定結(jié)論的質(zhì)證后再形成自己的內(nèi)心確信,并要在判決書(shū)中公開(kāi)說(shuō)明鑒定材料的來(lái)源、鑒定的科學(xué)原理、推理過(guò)程等,陳述雙方對(duì)鑒定的異議,闡述采信或舍棄鑒定結(jié)論的理由以及鑒定結(jié)論在案件中的作用,讓鑒定結(jié)論的采信過(guò)程更加透明、公開(kāi)。最后筆者提出應(yīng)完善鑒定結(jié)論質(zhì)證制度。論述的內(nèi)容主要包括鑒定人應(yīng)出庭質(zhì)證、鑒定人不出庭的例外情形、完善交叉詢問(wèn)規(guī)則等,進(jìn)一步明確了鑒定結(jié)論質(zhì)證的有關(guān)內(nèi)容。
[Abstract]:The evidence is the core of the lawsuit, and the litigation activity is in fact the collection, review and application of the evidence. With the rapid development of the modern society and the rapid development of science and technology, the conclusion of the appraisal, as a unique form of evidence, plays a more and more important role in the litigation. However, the conclusion of the appraisal, as one of the seven pieces of evidence, does not have the special status above the other evidence, and also requires the examination and judgment of the judge. At present, there are many problems in the application of the examination and application of the appraisal conclusion in the judicial practice of our country, such as the scientific judgment standard of the appraisal conclusion, the procedure system of the conclusion of the appraisal conclusion, etc. So that the evidence efficiency of the appraisal conclusion can not be brought into full play. This paper starts with the review and application of the conclusion of the appraisal, and studies the evidence of the appraisal conclusion, so as to help to develop and improve the judicial authentication method as soon as possible. This paper is divided into three parts. The first part starts with three criminal cases such as Du Peiwu's case, Li Hua Wei's case and Li Jiaming's case, and analyzes the role of the appraisal conclusion in the case of the three criminal cases, and sums up the main problems in the judicial practice. The second part mainly studies the relevant provisions of the current law on the content of the review and application of the appraisal conclusion. The third part mainly studies the idea of improving the examination and application system of the appraisal conclusion. First, the review and application of the conclusions of the national experts, such as the United States and the United Kingdom, were examined. Then, in combination with the current situation of China's legislation and the judicial practice, it is proposed that the scientific judgment standard of the appraisal conclusion of our country should be set up, and the personal opinions should be put forward to the relevant contents that should be included in the standard. Then, the author makes a discussion on the evidence ability and the proof force of the appraisal conclusion, and studies the evidence effectiveness of the conclusion of the appraisal. The rules of evidence and evidence of the three rules of evidence, such as the rules of evidence, the rules of evidence and the evidence of character, are introduced. First, the establishment of the rules of the rule of law. The author's point of view mainly includes that the conclusion of the illegal expert should be excluded; the conclusion of the appraisal in the technical of the illegal evidence shall be excluded; the conclusion that the scientific and the accuracy is not high shall be excluded. Secondly, the rule of hearsay evidence is established. In ord to adapt to that modern lawsuit pattern and the judicial idea of our country, to adapt to the justice of the judicial procedure, to adapt to the law of the proof of the evidence of the appraisal conclusion, it is suggested that, in addition to the case where the legal experts can not appear before the court, the experts in the course of the trial must appear before the court. Where there is no justification for refusing to appear in court, the conclusion of the appraisal does not have the capability of evidence and cannot be adopted by the court, thus limiting the admissibility of the expert's conclusion. Third, the establishment of character evidence. It is suggested that the establishment of an appraisal institution and an expert's integrity file in the court can be used as a reference for the conclusion of the appraisal conclusion. The establishment of the good faith file has a certain deterrent effect on the appraisal institution and the appraiser, so that it will pay more attention to the quality of the appraisal and ensure the fairness and accuracy of the appraisal conclusion. In the aspect of the proof force of the appraisal conclusion, the author thinks it is necessary to use the modern heart-proof principle to judge the conclusion of the appraisal, and should fully listen to the quality certificate of the two parties on the appraisal conclusion and then form his own inner confidence, and to disclose the source of the identification material and the scientific principle of the appraisal in the judgment. The reasoning process, etc., states the objection of the two parties to the appraisal, and expounds the reasons for the conclusion of the mining letter or the rejection of the appraisal conclusion and the role of the expert conclusion in the case, so as to make the data mining process of the appraisal conclusion more transparent and open. In the end, the author puts forward that the system of identification and conclusion should be improved. The content of the discussion mainly includes the case of the expert's appearance, the exception of the expert's non-appearance, the perfect cross-inquiry rule and so on, and further defines the relevant contents of the conclusion of the appraisal conclusion.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類(lèi)號(hào)】：D918.9
[Abstract]:The evidence is the core of the lawsuit, and the litigation activity is in fact the collection, review and application of the evidence. With the rapid development of the modern society and the rapid development of science and technology, the conclusion of the appraisal, as a unique form of evidence, plays a more and more important role in the litigation. However, the conclusion of the appraisal, as one of the seven pieces of evidence, does not have the special status above the other evidence, and also requires the examination and judgment of the judge. At present, there are many problems in the application of the examination and application of the appraisal conclusion in the judicial practice of our country, such as the scientific judgment standard of the appraisal conclusion, the procedure system of the conclusion of the appraisal conclusion, etc. So that the evidence efficiency of the appraisal conclusion can not be brought into full play. This paper starts with the review and application of the conclusion of the appraisal, and studies the evidence of the appraisal conclusion, so as to help to develop and improve the judicial authentication method as soon as possible. This paper is divided into three parts. The first part starts with three criminal cases such as Du Peiwu's case, Li Hua Wei's case and Li Jiaming's case, and analyzes the role of the appraisal conclusion in the case of the three criminal cases, and sums up the main problems in the judicial practice. The second part mainly studies the relevant provisions of the current law on the content of the review and application of the appraisal conclusion. The third part mainly studies the idea of improving the examination and application system of the appraisal conclusion. First, the review and application of the conclusions of the national experts, such as the United States and the United Kingdom, were examined. Then, in combination with the current situation of China's legislation and the judicial practice, it is proposed that the scientific judgment standard of the appraisal conclusion of our country should be set up, and the personal opinions should be put forward to the relevant contents that should be included in the standard. Then, the author makes a discussion on the evidence ability and the proof force of the appraisal conclusion, and studies the evidence effectiveness of the conclusion of the appraisal. The rules of evidence and evidence of the three rules of evidence, such as the rules of evidence, the rules of evidence and the evidence of character, are introduced. First, the establishment of the rules of the rule of law. The author's point of view mainly includes that the conclusion of the illegal expert should be excluded; the conclusion of the appraisal in the technical of the illegal evidence shall be excluded; the conclusion that the scientific and the accuracy is not high shall be excluded. Secondly, the rule of hearsay evidence is established. In ord to adapt to that modern lawsuit pattern and the judicial idea of our country, to adapt to the justice of the judicial procedure, to adapt to the law of the proof of the evidence of the appraisal conclusion, it is suggested that, in addition to the case where the legal experts can not appear before the court, the experts in the course of the trial must appear before the court. Where there is no justification for refusing to appear in court, the conclusion of the appraisal does not have the capability of evidence and cannot be adopted by the court, thus limiting the admissibility of the expert's conclusion. Third, the establishment of character evidence. It is suggested that the establishment of an appraisal institution and an expert's integrity file in the court can be used as a reference for the conclusion of the appraisal conclusion. The establishment of the good faith file has a certain deterrent effect on the appraisal institution and the appraiser, so that it will pay more attention to the quality of the appraisal and ensure the fairness and accuracy of the appraisal conclusion. In the aspect of the proof force of the appraisal conclusion, the author thinks it is necessary to use the modern heart-proof principle to judge the conclusion of the appraisal, and should fully listen to the quality certificate of the two parties on the appraisal conclusion and then form his own inner confidence, and to disclose the source of the identification material and the scientific principle of the appraisal in the judgment. The reasoning process, etc., states the objection of the two parties to the appraisal, and expounds the reasons for the conclusion of the mining letter or the rejection of the appraisal conclusion and the role of the expert conclusion in the case, so as to make the data mining process of the appraisal conclusion more transparent and open. In the end, the author puts forward that the system of identification and conclusion should be improved. The content of the discussion mainly includes the case of the expert's appearance, the exception of the expert's non-appearance, the perfect cross-inquiry rule and so on, and further defines the relevant contents of the conclusion of the appraisal conclusion.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類(lèi)號(hào)】：D918.9
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