美国专家证据可采性规则研究

发布时间：2018-03-30 21:03

本文选题：专家证据　切入点：可采性　出处：《山东大学》2017年硕士论文

【摘要】：在专家证据问题上,美国通过多年的判例,不断调整其可采性规则,为事实裁判者在法庭上如何审查判断专家提供的意见提供了切实有效的指导。当前我国的司法改革,首当其冲的就是对审判方式的改革,证据制度的完善则是其重中之重。面对专家证据在诉讼活动中日益广泛的应用,如何合理利用、正确发挥专家证据的作用,关键就在于法官所扮演的"守门人"角色,也就是法官对专家证据的可采性审查。从这点上来说,美国专家证据可采性规则的变迁,对我国鉴定意见的改革具有重要的借鉴意义。本文从比较的视角,以证据的可采性规则为切入点,对专家证据制度与鉴定意见制度中相对应的部分进行分析和反思,在梳理美国的改革措施和成效的基础上,结合我国鉴定意见的现状提出完善的建议。本文共分三章。第一章是专家证据制度的相关概述,主要探讨专家证据的概念、专家证据与传统证据的区别,以及专家证据在可采性方面遇到的难题。专家证据实际上就是专家借助科技和知识对专业问题的判断说明,对于事实裁判者是一种有说服力的阐释。从一定程度上说,法庭上对专家证据的采纳与否,直接关系到案件的认定和法律的适用,有时会对案件的裁决具有重要的乃至决定性的影响。然而,专家证据本质上是专家个人的判断意见,是一种推测,不可能完全正确。不论是英美法系还是大陆法系,重视对专家证据的可靠性审查势在必行。第二章主要采用判例分析的方法,探讨了美国在专家证据的采纳问题上进行的改革。美国通过一些典型的判例和事件确立了审查专家证据的可采性标准,对我国有很多的启示和借鉴意义,尤其是重视专家证据的实质性审查,增强控辩双方的对抗性等等。当然也要认识到,这些规则并不完美,也存在着问题。我们也有必要对我国审查鉴定意见方面存在的问题进行反思。第三章主要探讨我国鉴定意见可采性方面存在的问题以及完善的建议。从宏观上分析了我国目前鉴定意见的现状,归纳了主要的问题。当然,在考察国外的制度规则时,还要考虑我国现有的国情。合理的建构需要遵循相应的原则和路径,也可以从程序正当性的角度入手,改革和完善我国的鉴定意见可采性的规则。
[Abstract]:On the issue of expert evidence, the United States has continuously adjusted its admissibility rules through years of jurisprudence, which has provided practical and effective guidance to factual judges on how to examine and judge the opinions provided by experts in court. At present, China's judicial reform, The first thing to bear the brunt is the reform of the trial method, and the perfection of the evidence system is its top priority. In the face of the increasingly widespread application of expert evidence in litigation activities, how to use it reasonably and give full play to the role of expert evidence, The key lies in the "gatekeeper" role played by the judge, that is, the judge's examination of the admissibility of expert evidence. In this sense, the rule of admissibility of expert evidence in the United States has changed. This paper, from the perspective of comparison and taking the rules of admissibility of evidence as the breakthrough point, analyzes and reflects on the corresponding parts of the expert evidence system and the appraisal opinion system. On the basis of combing the reform measures and effects of the United States, and combining with the present situation of our country's appraisal opinions, the author puts forward some perfect suggestions. This paper is divided into three chapters. The first chapter is an overview of the system of expert evidence, which mainly discusses the concept of expert evidence. The difference between expert evidence and traditional evidence, as well as the difficulties encountered in the admissibility of expert evidence. Expert evidence is, in fact, an explanation of the expert's judgment of a professional problem with the aid of science and technology and knowledge. To a certain extent, the admissibility of expert evidence in court is directly related to the determination of the case and the application of the law. Sometimes it has an important and even decisive effect on the decision of a case. However, the expert evidence is essentially an expert's individual opinion, a kind of speculation, and cannot be completely correct. Whether it is a common law system or a civil law system, The importance attached to the review of the reliability of expert evidence is imperative. Chapter II mainly adopts the method of case analysis, This paper probes into the reform of the adoption of expert evidence in the United States. Through some typical cases and events, the United States has established the admissibility criteria for examining expert evidence, which has a lot of enlightenment and reference significance for our country. In particular, it is important to attach importance to the substantive examination of expert evidence, to enhance the antagonism between the prosecution and the defense, and so on. Of course, it should also be recognized that these rules are not perfect. There are also problems. It is also necessary for us to reflect on the problems existing in the examination and appraisal opinions of our country. Chapter three mainly discusses the problems and suggestions on the admissibility of appraisal opinions in our country. The present situation of appraisal opinions in China is analyzed. The main problems are summarized. Of course, when examining the system rules of foreign countries, we should also consider the existing national conditions of our country. A reasonable construction needs to follow the corresponding principles and paths, and we can also start from the point of view of procedural legitimacy. Reform and improve the rules of admissibility of appraisal opinions in China.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D971.2

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