新诉讼法规制下的鉴定制度评析

Analyses of the Appraisal System Regulated by the Amended Criminal Procedure Law and Civil Procedure Law

随着《刑事诉讼法》和《民事诉讼法》的修正,我国的鉴定制度也相应发生了变革。新诉讼法规制下的鉴定制度集中体现于:鉴定结论更名为鉴定意见,赋予民诉当事人以鉴定申请权,统一鉴定人必须出庭作证的法定情形,明确鉴定人不出庭作证的法律后果,规定重大犯罪案件中的鉴定人可享有特殊保护权,建立专家辅助人制度,保障当事人质证权和出庭作证的鉴定人的"受质权"得以有效地实现,取消为某些鉴定指定鉴定部门的做法等。但是,新鉴定制度还存在一些不足,需要进一步完善,即:刑事诉讼中,未赋予被告方申请启动精神病鉴定的权利;鉴定人直接成为被选择或被指定的对象;鉴定人的收费权特别是出庭作证收费权被忽视,且鉴定费被等同于出庭作证费;未明确鉴定人与证人之间的差异。

Along with the amendment of the Criminal Procedure Law and Civil Procedure Law,some changes have taken place in the forensic appraisal system.The author analyses the new appraisal system regulated by the new procedure laws and points out that they have not only great progresses but also some defects.The key progresses are:renaming the term'appraiser's conclusion'as'appraiser's opinion';empowering parties in civil litigation to apply for appraisal;making clear the situation that an appraiser must appear in court and the legal consequences of the appraiser's non-appearance in court;providing appraisers with special protection in serious criminal cases;establishing the expert assistant system to meet the demand of cross-examination of appraisers in court and the demands of appraiser's being cross-examinated;abolishing the practice of designating appraisal organization for two types of appraisals.The main defects are:in criminal cases,defendants have no right to apply for mental disorder appraisal;appraisers are the objects being selected or assigned by the parties or the people's court; the right of appraisers to charge for service is neglected and the appraisal charge is regarded as the fee for appearing in court by appraisers;the distinction between a lay witness and an appraiser is not made clear.