谁是司法鉴定的“守门人”?——《关于司法鉴定管理问题的决定》实施五周年成效评析

Who is the "Gate-keeper" of Expert Opinions?——Evaluating on the Implementation of "the Decision on the Management of Forensic Science by the Standing Committee of the National People's Congress" during Five Years

本文从司法鉴定机构设置、司法鉴定活动启动以及司法鉴定意见审查三个方面论述了司法鉴定"守门人"问题。通过对两大法系国家各自司法鉴定制度的分析,梳理司法鉴定"守门人"的三道防线,同时有针对性地比较和讨论了我国司法鉴定制度缺陷,明确司法鉴定制度改革不能以牺牲鉴定意见"守门人"功能为代价。指出建立国家所属的具有公益性、中立性的司法鉴定机构是发展的必由之路。

This paper discourses on the issue of the ＂Gate-keeper＂ of Forensic science from the aspects of the establishment of forensic science institutions, the initiation of forensic examination procedures and the review and affirmation of expert opinions. The author holds that the reform of forensic science system shouldn＇t be carried out at the expense of the judges＇ function as the ＂Gate-keeper＂ of expert opinions, which is supported by comparing the forensic science system in the civil law system and the common law system, analyzing three defense lines of the ＂Gate-keeper＂ of expert opinions, and discussing the deficiencies in forensic science system in China. Finally, the author gets the conclusion that the establishment of non-profitable and neutral forensic science institutions is the only way leading to the development of forensic science system in China.