司法鑒定結(jié)論沖突的原因及解決途徑
發(fā)布時(shí)間：2018-08-20 18:16
【摘要】： 鑒定結(jié)論是我國(guó)三大訴訟法中規(guī)定的法定證據(jù)之一,怎樣正確適用司法鑒定,查明案件真實(shí)情況,已經(jīng)成為實(shí)現(xiàn)司法鑒定中立,公正的焦點(diǎn)。在司法鑒定制度中,重新鑒定是檢驗(yàn)和糾正鑒定結(jié)論的有效途徑,但是由于我國(guó)司法鑒定體制及立法的不足,重新鑒定不僅沒有發(fā)揮其應(yīng)有的功能,反而成為影響公正與效率的痼疾。在我國(guó)當(dāng)前弊端諸現(xiàn)的鑒定體制下,“重復(fù)鑒定”,“多頭鑒定”問題日益突出,司法鑒定有“鑒”不“定”的混亂局面已經(jīng)使司法鑒定的公信力下降,致使案件久拖不決影響訴訟效率的實(shí)現(xiàn)。反復(fù)鑒定是當(dāng)前司法實(shí)踐中比較突出的一個(gè)問題,可以說是現(xiàn)行司法鑒定體制諸多弊端的集中體現(xiàn)。由此所造成的“鑒定結(jié)論沖突”困局已經(jīng)成為我國(guó)司法鑒定制度的一大頑疾,其弊害甚大。 2004年2月20日,浙江省余姚市兩歲幼童方一棟在幼兒園猝死。本案前后共計(jì)有五份八個(gè)版本的由不同鑒定機(jī)構(gòu)作出的鑒定結(jié)論。這種鑒定結(jié)論相互“打架”的局面使得該案的主審法官無法判斷到底哪一方的鑒定結(jié)論具有更高的證明力。2003年2月24日發(fā)生在湖南省湘潭市的女教師黃靜命案,在案發(fā)22個(gè)月期間,多家鑒定機(jī)構(gòu)先后就其死亡原因做了5次尸檢、6次死亡鑒定。類似的案件1992年在浙江省東陽(yáng)市吳寧鎮(zhèn)也曾經(jīng)上演過,盧伯成訴胡尚軍故意傷害賠償案,案件歷時(shí)7年,共做了8次鑒定。如此反反復(fù)復(fù)的鑒定讓公眾陷入了困惑中,鑒定也步入了一個(gè)司法怪圈,來回往復(fù)總無休止,為此,人們對(duì)鑒定的科學(xué)屬性心存疑慮。 本文研究的是司法鑒定結(jié)論的沖突,探討了沖突的原因和解決的辦法。筆者本文理性分析這種現(xiàn)象的生成,探索“鑒定結(jié)論沖突”的出路。反復(fù)鑒定現(xiàn)象在三大訴訟法中都頻繁出現(xiàn),尤其以民事訴訟中為甚,給訴訟活動(dòng)帶來了很多不利的影響。在訴訟過程中,多家鑒定機(jī)構(gòu)參與其中,而且各個(gè)鑒定機(jī)構(gòu)之間各執(zhí)己見,互不相讓,鑒定結(jié)論內(nèi)容也相互沖突嚴(yán)重,法官無所適從,耗時(shí)長(zhǎng),花費(fèi)大,結(jié)案十分遲緩,成為當(dāng)事人不能承受之重,造成司法資源的嚴(yán)重浪費(fèi)。 本文全文三萬余字,除前言和結(jié)束語(yǔ),共分為四個(gè)部分。 本文第一章首先明確鑒定結(jié)論的概念界指和基本屬性,鑒定活動(dòng),是一個(gè)科學(xué)的分析、檢驗(yàn)和判斷的過程,科學(xué)性是其本質(zhì)屬性。司法鑒定又非單純的科學(xué)活動(dòng),它與自然科學(xué)上的鑒定以及社會(huì)生活中的鑒定有很大的不同,主要表現(xiàn)在,司法鑒定作為一種訴訟活動(dòng),還具有法律性的一面。筆者對(duì)司法鑒定結(jié)論與非訴訟鑒定結(jié)論,司法鑒定結(jié)論與偵查中的鑒別性結(jié)論作了區(qū)分,由此作出的鑒定結(jié)論具有其獨(dú)特的法律特征和基本屬性。 第二章通過對(duì)反復(fù)鑒定現(xiàn)象的研究,指出產(chǎn)生的根源并不僅在于鑒定體制的弊端,更在于訴訟程序的不完善,同一個(gè)專門性問題的鑒定為什么要經(jīng)過幾個(gè)鑒定機(jī)構(gòu)?原因何在?筆者對(duì)兩個(gè)典型的反復(fù)鑒定案例的深入分析,總結(jié)反復(fù)鑒定現(xiàn)象的特點(diǎn),通過考察反復(fù)鑒定的各種情況,筆者認(rèn)為,造成這一現(xiàn)象是多方面原因合力作用的結(jié)果。筆者將引發(fā)反復(fù)鑒定的法律層面和制度層面的因素歸為外因,將科學(xué)原理、技術(shù)方法以及鑒定實(shí)施過程中鑒定自身因素歸為內(nèi)因。最后,對(duì)反復(fù)鑒定進(jìn)行規(guī)制的可行性進(jìn)行了探討。 在我國(guó)當(dāng)前,“司法鑒定結(jié)論沖突”的狀況較為常見。理性分析這種現(xiàn)象的生成,是多方面原因綜合作用的結(jié)果,但歸根到底,是現(xiàn)行司法鑒定制度諸多弊端的集中體現(xiàn)。第三章從三個(gè)方面分析了司法鑒定結(jié)論沖突的原因,首先是我國(guó)法律上的缺陷和立法上的滯后,從鑒定機(jī)構(gòu),鑒定人員,鑒定規(guī)范和標(biāo)準(zhǔn)三個(gè)方面探悉為何當(dāng)前我國(guó)司法鑒定的公信力受到挑戰(zhàn)。其次是鑒定的決定權(quán)和委托權(quán)問題沒有合理的解決,筆者通過比較國(guó)外的三種現(xiàn)行鑒定模式,結(jié)合我國(guó)現(xiàn)狀,尋求解決之道。最后是法院對(duì)鑒定結(jié)論的采信存在誤區(qū),列舉了五種常見的以主觀標(biāo)準(zhǔn)評(píng)斷鑒定結(jié)論的錯(cuò)誤偏向。 在被視為本文重點(diǎn)的第四章中,筆者從五個(gè)方面提出制約鑒定結(jié)論沖突的對(duì)策。一是修改和完善現(xiàn)有司法鑒定制度,二是實(shí)行鑒定資格制度,三是限制鑒定的人數(shù)和次數(shù),四是全面制定配套的科學(xué)鑒定標(biāo)準(zhǔn),最后是走出司法鑒定結(jié)論沖突下的優(yōu)先采信的誤區(qū)。筆者根據(jù)相關(guān)的法律,學(xué)界的一般定論和自己的見解,袒露自己的一些看法,看問題和分析問題難免有不足之處,權(quán)作辨析,祈望指正。 正如鄧小平所指出的那樣,改革是“制度的自我完善,自我發(fā)展”。中國(guó)司法鑒定制度的出路亦在于此。如果說黃靜案引發(fā)了我國(guó)司法鑒定管理體制的重大變革,促使《全國(guó)人民代表大會(huì)常務(wù)委員會(huì)關(guān)于司法鑒定管理問題的決定》的出臺(tái),那么,我們期望方一棟案等鑒定結(jié)論沖突的案件能激起我國(guó)司法鑒定制度的新一輪改革浪潮。果真如此,則是中國(guó)司法鑒定制度之幸事,更是中國(guó)法治事業(yè)之幸事。
[Abstract]:Expertise conclusion is one of the legal evidences stipulated in the three procedural laws of our country. How to apply judicial expertise correctly and ascertain the true situation of a case has become the focus of realizing the neutrality and impartiality of judicial expertise. Lack of legislation, re-appraisal not only does not play its due role, but has become a chronic disease affecting fairness and efficiency. Under the current appraisal system in China, the problem of "repeated appraisal" and "multi-appraisal" has become increasingly prominent. The chaotic situation of judicial appraisal has made judicial appraisal under the credibility of the judicial appraisal. Repeated appraisal is a prominent problem in the current judicial practice, and it can be said that it is the concentrated embodiment of many drawbacks in the current judicial appraisal system.
On February 20, 2004, Fang Yidong, a two-year-old child in Yuyao City, Zhejiang Province, died suddenly in a kindergarten. There were five and eight versions of expert conclusions made by different appraisal bodies before and after the case. The situation of "fighting" among the appraisal conclusions made it impossible for the presiding judge of the case to judge which side of the appraisal conclusion had higher proof. The case of Huang Jing, a female teacher in Xiangtan City, Hunan Province, occurred on February 24, 2003. During the 22-month period of the case, five autopsy examinations and six death appraisals were carried out by several appraisal institutions on the causes of her death. Similar cases were carried out in Wuning Town, Dongyang City, Zhejiang Province, in 1992. A total of eight appraisals have been made. Such repeated appraisals have plunged the public into confusion, and the appraisal has stepped into a strange circle of justice. There is no end of reciprocation. Therefore, people have doubts about the scientific nature of the appraisal.
This paper studies the conflict of the conclusion of judicial expertise, and explores the causes and solutions of the conflict. The author rationally analyzes the generation of this phenomenon and explores the way out of the conflict of the conclusion of judicial expertise. In the process of litigation, many appraisal institutions participate in it, and each appraisal institution holds its own opinions and does not give in to each other. The content of appraisal conclusion is also seriously conflicting with each other. Judges are at a loss, time-consuming, costly, and the closing of the case is very slow.
The text is more than 30000 words. Besides preface and concluding remarks, it is divided into four parts.
The first chapter of this article first clarifies the conceptual definition and basic attributes of appraisal conclusion. The appraisal activity is a process of scientific analysis, examination and judgment, and the scientific nature is its essential attribute. The author distinguishes the conclusion of judicial expertise from the conclusion of non-judicial expertise, the conclusion of judicial expertise from the conclusion of investigation, and the conclusion of judicial expertise has its unique legal characteristics and basic attributes.
Chapter two points out that the root of the phenomenon of repeated appraisal lies not only in the drawbacks of appraisal system, but also in the imperfection of litigation procedure. Why does the appraisal of the same special problem go through several appraisal bodies? What is the reason? The author makes a thorough analysis of two typical cases of repeated appraisal and summarizes the repeated appraisal. The author attributes the legal and institutional factors that lead to repeated appraisal to external causes, and attributes the scientific principles, technical methods and appraisal factors to internal causes. The feasibility of regulation by repeated identification is discussed.
At present, the conflict of judicial expertise conclusions is common in our country. Rational analysis of this phenomenon is the result of the comprehensive effect of various reasons, but in the final analysis, it is the concentrated embodiment of many drawbacks of the current judicial expertise system. The third chapter analyzes the causes of the conflict of judicial expertise conclusions from three aspects, first of all, China's law. Legal defects and legislative lag, from the appraisal institutions, appraisers, appraisal standards and standards to explore why the credibility of China's current judicial expertise has been challenged. Finally, there are misunderstandings in the court's acceptance of the expert conclusion, and five common errors in judging the expert conclusion by subjective criteria are listed.
In the fourth chapter, which is regarded as the focus of this paper, the author puts forward the countermeasures to restrict the conflicts of expert conclusions from five aspects. First, the existing system of judicial expertise should be revised and perfected. Second, the system of qualifications should be implemented. Third, the number and frequency of experts should be limited. Fourth, a complete set of scientific expertise standards should be formulated. Finally, the conclusion of judicial expertise should be broken. According to the relevant laws, the general conclusions of the academic circles and their own opinions, the author reveals some of his own views. It is inevitable to see and analyze problems with inadequacies.
As Deng Xiaoping pointed out, reform is "self-perfection and self-development of the system". The way out for China's judicial expertise system lies in this. Then, we expect that the case of Fang Yidong and other cases with conflicting expert conclusions will trigger a new round of reform in the system of judicial expertise in China. If so, it is a blessing for the system of judicial expertise in China, and even for the cause of the rule of law in China.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2008
【分類號(hào)】：D918.9
[Abstract]:Expertise conclusion is one of the legal evidences stipulated in the three procedural laws of our country. How to apply judicial expertise correctly and ascertain the true situation of a case has become the focus of realizing the neutrality and impartiality of judicial expertise. Lack of legislation, re-appraisal not only does not play its due role, but has become a chronic disease affecting fairness and efficiency. Under the current appraisal system in China, the problem of "repeated appraisal" and "multi-appraisal" has become increasingly prominent. The chaotic situation of judicial appraisal has made judicial appraisal under the credibility of the judicial appraisal. Repeated appraisal is a prominent problem in the current judicial practice, and it can be said that it is the concentrated embodiment of many drawbacks in the current judicial appraisal system.
On February 20, 2004, Fang Yidong, a two-year-old child in Yuyao City, Zhejiang Province, died suddenly in a kindergarten. There were five and eight versions of expert conclusions made by different appraisal bodies before and after the case. The situation of "fighting" among the appraisal conclusions made it impossible for the presiding judge of the case to judge which side of the appraisal conclusion had higher proof. The case of Huang Jing, a female teacher in Xiangtan City, Hunan Province, occurred on February 24, 2003. During the 22-month period of the case, five autopsy examinations and six death appraisals were carried out by several appraisal institutions on the causes of her death. Similar cases were carried out in Wuning Town, Dongyang City, Zhejiang Province, in 1992. A total of eight appraisals have been made. Such repeated appraisals have plunged the public into confusion, and the appraisal has stepped into a strange circle of justice. There is no end of reciprocation. Therefore, people have doubts about the scientific nature of the appraisal.
This paper studies the conflict of the conclusion of judicial expertise, and explores the causes and solutions of the conflict. The author rationally analyzes the generation of this phenomenon and explores the way out of the conflict of the conclusion of judicial expertise. In the process of litigation, many appraisal institutions participate in it, and each appraisal institution holds its own opinions and does not give in to each other. The content of appraisal conclusion is also seriously conflicting with each other. Judges are at a loss, time-consuming, costly, and the closing of the case is very slow.
The text is more than 30000 words. Besides preface and concluding remarks, it is divided into four parts.
The first chapter of this article first clarifies the conceptual definition and basic attributes of appraisal conclusion. The appraisal activity is a process of scientific analysis, examination and judgment, and the scientific nature is its essential attribute. The author distinguishes the conclusion of judicial expertise from the conclusion of non-judicial expertise, the conclusion of judicial expertise from the conclusion of investigation, and the conclusion of judicial expertise has its unique legal characteristics and basic attributes.
Chapter two points out that the root of the phenomenon of repeated appraisal lies not only in the drawbacks of appraisal system, but also in the imperfection of litigation procedure. Why does the appraisal of the same special problem go through several appraisal bodies? What is the reason? The author makes a thorough analysis of two typical cases of repeated appraisal and summarizes the repeated appraisal. The author attributes the legal and institutional factors that lead to repeated appraisal to external causes, and attributes the scientific principles, technical methods and appraisal factors to internal causes. The feasibility of regulation by repeated identification is discussed.
At present, the conflict of judicial expertise conclusions is common in our country. Rational analysis of this phenomenon is the result of the comprehensive effect of various reasons, but in the final analysis, it is the concentrated embodiment of many drawbacks of the current judicial expertise system. The third chapter analyzes the causes of the conflict of judicial expertise conclusions from three aspects, first of all, China's law. Legal defects and legislative lag, from the appraisal institutions, appraisers, appraisal standards and standards to explore why the credibility of China's current judicial expertise has been challenged. Finally, there are misunderstandings in the court's acceptance of the expert conclusion, and five common errors in judging the expert conclusion by subjective criteria are listed.
In the fourth chapter, which is regarded as the focus of this paper, the author puts forward the countermeasures to restrict the conflicts of expert conclusions from five aspects. First, the existing system of judicial expertise should be revised and perfected. Second, the system of qualifications should be implemented. Third, the number and frequency of experts should be limited. Fourth, a complete set of scientific expertise standards should be formulated. Finally, the conclusion of judicial expertise should be broken. According to the relevant laws, the general conclusions of the academic circles and their own opinions, the author reveals some of his own views. It is inevitable to see and analyze problems with inadequacies.
As Deng Xiaoping pointed out, reform is "self-perfection and self-development of the system". The way out for China's judicial expertise system lies in this. Then, we expect that the case of Fang Yidong and other cases with conflicting expert conclusions will trigger a new round of reform in the system of judicial expertise in China. If so, it is a blessing for the system of judicial expertise in China, and even for the cause of the rule of law in China.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2008
【分類號(hào)】：D918.9
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