司法鑒定責任論
發(fā)布時間：2018-10-21 08:52
【摘要】： 司法鑒定責任制度是司法鑒定制度的組成部分，也是司法程序中的組成部分。我國司法鑒定責任制度很不完善。司法鑒定具有科學性、法律性、被動性、中立性和親歷性等特性，而科學性是其本質(zhì)屬性。建立與完善司法鑒定責任制度，對于推動司法改革，深化人們對司法鑒定科學性的認識、促進鑒定科學的發(fā)展和技術(shù)水平的提高，強化鑒定人責任心，對因錯誤鑒定而遭受損失的受害者救濟、維護當事人合法權(quán)益都具有重要意義。司法鑒定責任的類型，可以從不同角度去劃分，，但司法鑒定責任的主要性質(zhì)是民事侵權(quán)責任。鑒定人主觀上有故意或重大過失、違法鑒定行為、損害結(jié)果、違法鑒定行為與損害結(jié)果有因果關系，是這一侵權(quán)責任的構(gòu)成要件。鑒定入侵權(quán)責任主觀要件排除一般過失，具有特別重要的意義，與此相適應，司法鑒定民事侵權(quán)歸責原則是比過錯歸責原則或過錯推定原則更為嚴格的歸責原則，即嚴格責任原則�？茖W認識的有限性、技術(shù)水平的局限性、受害者的過錯和職務行為是責任追究的抗辯事由。我國司法鑒定責任制度存在的問題主要在于：偽證罪的規(guī)定存在疏漏，因錯鑒給利害關系人造成損失缺乏民事責任的規(guī)定，行政責任全國不統(tǒng)一。構(gòu)建我國司法鑒定責任制度，必須注意幾個原則性問題：既不能借口認識的主觀性和實踐的相對性來規(guī)避責 任，也不能過分強調(diào)認識的客觀性和實踐的絕對性而一味地 從嚴追究責任;必須與我國司法鑒定體制相協(xié)調(diào);鑒定人承 擔法定義務和約定義務是責任追究的前提。完善我國司法鑒 定責任制度的總體思路是:在鑒定人的法定義務上，應由單 方面注重鑒定權(quán)主義的義務觀向鑒定權(quán)主義義務觀與當事 人主義義務觀并重轉(zhuǎn)變;在責任主體上，應由機構(gòu)責任向自 然人責任轉(zhuǎn)變;在責任內(nèi)容上，應由刑事責任、行政責任為 主向以民事責任為主轉(zhuǎn)變;在責任性質(zhì)上，應由以契約責任、 侵權(quán)責任為主向以侵權(quán)責任、請求權(quán)競合為主轉(zhuǎn)變;在賠償 實現(xiàn)上，建立鑒定人執(zhí)業(yè)保險或執(zhí)業(yè)互濟制度。
[Abstract]:The responsibility system of judicial expertise is an integral part of judicial identification system as well as a component of judicial procedure. The responsibility system of judicial expertise in our country is not perfect. Forensic expertise has the characteristics of science, law, passivity, neutrality and personal experience, and scientific nature is its essential attribute. To establish and perfect the responsibility system of judicial expertise can promote judicial reform, deepen people's understanding of the scientific nature of judicial expertise, promote the development of identification science and raise the level of technology, and strengthen the sense of responsibility of experts. It is of great significance to protect the legal rights and interests of the victims who have suffered losses as a result of false identification. The types of forensic liability can be divided from different angles, but the main nature of forensic liability is civil tort liability. The connoisseur has the subjective intention or the gross negligence, the illegal appraisal behavior, the damage result, the illegal appraisal behavior and the damage result has the causality, is the constitution element of this tort liability. It is very important to identify the subjective elements of tort liability to exclude general negligence. In accordance with this, the principle of imputation of civil tort of judicial expertise is more strict than the principle of fault imputation or the principle of presumption of fault. The principle of strict liability. The limitation of scientific understanding, the limitation of technical level, the fault of victim and the duty behavior are the defense reasons of investigating responsibility. The main problems of the judicial identification liability system in our country lie in: the regulation of perjury crime is negligent, the administrative liability is not unified all over the country because of the lack of civil liability for the damage caused to the interested parties by mistake. To construct the responsibility system of judicial expertise in China, We must pay attention to several issues of principle: we can not evade responsibility under the pretext of subjectivity of cognition and relativity of practice. Nor can we overemphasize the objectivity of cognition and the absoluteness of practice and blindly investigate the responsibility blindly, which must be coordinated with the system of judicial expertise in our country. The ascertainer undertakes the legal obligation and the agreement obligation is the premise of the responsibility investigation. The general idea of perfecting the system of judicial judgment liability in our country is as follows: in the legal obligation of expert judge, It should be changed from the obligation view of the one-sided right doctrine to the duty view of the appraisal right doctrine and the owner of the party concerned. The concept of righteousness and obligation should be changed equally; In terms of the subject of responsibility, the responsibility of the institution should be changed into the responsibility of the person of his own accord, and the content of the responsibility should be changed by the responsibility of the criminal. Administrative liability is the main change to civil liability; in terms of the nature of liability, It should be changed from contractual liability, tort liability to tort liability and competing right of claim. To establish a system of authenticator practice insurance or mutual assistance in practice.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2003
【分類號】：D918.9
本文編號：2284606
[Abstract]:The responsibility system of judicial expertise is an integral part of judicial identification system as well as a component of judicial procedure. The responsibility system of judicial expertise in our country is not perfect. Forensic expertise has the characteristics of science, law, passivity, neutrality and personal experience, and scientific nature is its essential attribute. To establish and perfect the responsibility system of judicial expertise can promote judicial reform, deepen people's understanding of the scientific nature of judicial expertise, promote the development of identification science and raise the level of technology, and strengthen the sense of responsibility of experts. It is of great significance to protect the legal rights and interests of the victims who have suffered losses as a result of false identification. The types of forensic liability can be divided from different angles, but the main nature of forensic liability is civil tort liability. The connoisseur has the subjective intention or the gross negligence, the illegal appraisal behavior, the damage result, the illegal appraisal behavior and the damage result has the causality, is the constitution element of this tort liability. It is very important to identify the subjective elements of tort liability to exclude general negligence. In accordance with this, the principle of imputation of civil tort of judicial expertise is more strict than the principle of fault imputation or the principle of presumption of fault. The principle of strict liability. The limitation of scientific understanding, the limitation of technical level, the fault of victim and the duty behavior are the defense reasons of investigating responsibility. The main problems of the judicial identification liability system in our country lie in: the regulation of perjury crime is negligent, the administrative liability is not unified all over the country because of the lack of civil liability for the damage caused to the interested parties by mistake. To construct the responsibility system of judicial expertise in China, We must pay attention to several issues of principle: we can not evade responsibility under the pretext of subjectivity of cognition and relativity of practice. Nor can we overemphasize the objectivity of cognition and the absoluteness of practice and blindly investigate the responsibility blindly, which must be coordinated with the system of judicial expertise in our country. The ascertainer undertakes the legal obligation and the agreement obligation is the premise of the responsibility investigation. The general idea of perfecting the system of judicial judgment liability in our country is as follows: in the legal obligation of expert judge, It should be changed from the obligation view of the one-sided right doctrine to the duty view of the appraisal right doctrine and the owner of the party concerned. The concept of righteousness and obligation should be changed equally; In terms of the subject of responsibility, the responsibility of the institution should be changed into the responsibility of the person of his own accord, and the content of the responsibility should be changed by the responsibility of the criminal. Administrative liability is the main change to civil liability; in terms of the nature of liability, It should be changed from contractual liability, tort liability to tort liability and competing right of claim. To establish a system of authenticator practice insurance or mutual assistance in practice.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2003
【分類號】：D918.9
【引證文獻】
相關碩士學位論文 前3條
1 王蕾;論我國刑事訴訟中鑒定人的民事責任[D];湘潭大學;2011年
2 張建華;司法鑒定人權(quán)責制度：梳理、評析與完善[D];中南大學;2007年
3 陳楠楠;司法鑒定人民事責任研究[D];湖南師范大學;2012年
本文編號：2284606
本文鏈接：http://sikaile.net/shekelunwen/gongan/2284606.html
