司法鉴定结论冲突的原因及解决途径
发布时间：2018-08-20 18:16
【摘要】： 鉴定结论是我国三大诉讼法中规定的法定证据之一,怎样正确适用司法鉴定,查明案件真实情况,已经成为实现司法鉴定中立,公正的焦点。在司法鉴定制度中,重新鉴定是检验和纠正鉴定结论的有效途径,但是由于我国司法鉴定体制及立法的不足,重新鉴定不仅没有发挥其应有的功能,反而成为影响公正与效率的痼疾。在我国当前弊端诸现的鉴定体制下,“重复鉴定”,“多头鉴定”问题日益突出,司法鉴定有“鉴”不“定”的混乱局面已经使司法鉴定的公信力下降,致使案件久拖不决影响诉讼效率的实现。反复鉴定是当前司法实践中比较突出的一个问题,可以说是现行司法鉴定体制诸多弊端的集中体现。由此所造成的“鉴定结论冲突”困局已经成为我国司法鉴定制度的一大顽疾,其弊害甚大。 2004年2月20日,浙江省余姚市两岁幼童方一栋在幼儿园猝死。本案前后共计有五份八个版本的由不同鉴定机构作出的鉴定结论。这种鉴定结论相互“打架”的局面使得该案的主审法官无法判断到底哪一方的鉴定结论具有更高的证明力。2003年2月24日发生在湖南省湘潭市的女教师黄静命案,在案发22个月期间,多家鉴定机构先后就其死亡原因做了5次尸检、6次死亡鉴定。类似的案件1992年在浙江省东阳市吴宁镇也曾经上演过,卢伯成诉胡尚军故意伤害赔偿案,案件历时7年,共做了8次鉴定。如此反反复复的鉴定让公众陷入了困惑中,鉴定也步入了一个司法怪圈,来回往复总无休止,为此,人们对鉴定的科学属性心存疑虑。 本文研究的是司法鉴定结论的冲突,探讨了冲突的原因和解决的办法。笔者本文理性分析这种现象的生成,探索“鉴定结论冲突”的出路。反复鉴定现象在三大诉讼法中都频繁出现,尤其以民事诉讼中为甚,给诉讼活动带来了很多不利的影响。在诉讼过程中,多家鉴定机构参与其中,而且各个鉴定机构之间各执己见,互不相让,鉴定结论内容也相互冲突严重,法官无所适从,耗时长,花费大,结案十分迟缓,成为当事人不能承受之重,造成司法资源的严重浪费。 本文全文三万余字,除前言和结束语,共分为四个部分。 本文第一章首先明确鉴定结论的概念界指和基本属性,鉴定活动,是一个科学的分析、检验和判断的过程,科学性是其本质属性。司法鉴定又非单纯的科学活动,它与自然科学上的鉴定以及社会生活中的鉴定有很大的不同,主要表现在,司法鉴定作为一种诉讼活动,还具有法律性的一面。笔者对司法鉴定结论与非诉讼鉴定结论,司法鉴定结论与侦查中的鉴别性结论作了区分,由此作出的鉴定结论具有其独特的法律特征和基本属性。 第二章通过对反复鉴定现象的研究,指出产生的根源并不仅在于鉴定体制的弊端,更在于诉讼程序的不完善,同一个专门性问题的鉴定为什么要经过几个鉴定机构?原因何在?笔者对两个典型的反复鉴定案例的深入分析,总结反复鉴定现象的特点,通过考察反复鉴定的各种情况,笔者认为,造成这一现象是多方面原因合力作用的结果。笔者将引发反复鉴定的法律层面和制度层面的因素归为外因,将科学原理、技术方法以及鉴定实施过程中鉴定自身因素归为内因。最后,对反复鉴定进行规制的可行性进行了探讨。 在我国当前,“司法鉴定结论冲突”的状况较为常见。理性分析这种现象的生成,是多方面原因综合作用的结果,但归根到底,是现行司法鉴定制度诸多弊端的集中体现。第三章从三个方面分析了司法鉴定结论冲突的原因,首先是我国法律上的缺陷和立法上的滞后,从鉴定机构,鉴定人员,鉴定规范和标准三个方面探悉为何当前我国司法鉴定的公信力受到挑战。其次是鉴定的决定权和委托权问题没有合理的解决,笔者通过比较国外的三种现行鉴定模式,结合我国现状,寻求解决之道。最后是法院对鉴定结论的采信存在误区,列举了五种常见的以主观标准评断鉴定结论的错误偏向。 在被视为本文重点的第四章中,笔者从五个方面提出制约鉴定结论冲突的对策。一是修改和完善现有司法鉴定制度,二是实行鉴定资格制度,三是限制鉴定的人数和次数,四是全面制定配套的科学鉴定标准,最后是走出司法鉴定结论冲突下的优先采信的误区。笔者根据相关的法律,学界的一般定论和自己的见解,袒露自己的一些看法,看问题和分析问题难免有不足之处,权作辨析,祈望指正。 正如邓小平所指出的那样,改革是“制度的自我完善,自我发展”。中国司法鉴定制度的出路亦在于此。如果说黄静案引发了我国司法鉴定管理体制的重大变革,促使《全国人民代表大会常务委员会关于司法鉴定管理问题的决定》的出台,那么,我们期望方一栋案等鉴定结论冲突的案件能激起我国司法鉴定制度的新一轮改革浪潮。果真如此,则是中国司法鉴定制度之幸事,更是中国法治事业之幸事。
[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.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：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.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D918.9
【相似文献】
相关期刊论文 前10条
1 庾湘玲;;从证据能力角度谈鉴定结论的系统化规制[J];知识经济;2011年17期
2 柯昌林;;鉴定人出庭作证问题研究[J];湖南社会科学;2011年03期
3 王伟;;论我国民事诉讼中鉴定结论开示制度的完善[J];华章;2011年22期
4 王素芳;;关于司法鉴定人出庭作证制度的思考[J];前沿;2011年14期
5 首云翠;;单方鉴定结论采信问题探析——以民事诉讼为视角[J];法制与社会;2011年26期
6 王桂s，
本文编号：2194560
本文链接：https://www.wllwen.com/shekelunwen/gongan/2194560.html
