试论自行委托鉴定的证据主体地位

On the Subjective Status of Identification upon Self-Entrustment

诉讼证据是民事诉讼的灵魂,而证据提出的主体是负有举证责任的当事人。在民事诉讼中,自行委托鉴定、协商鉴定或法院指定鉴定所得出的鉴定结论,在庭审质证前均属证据材料,只有经法庭质证、审查后才能上升为认定事实的依据。所以说,自行委托鉴定与协商鉴定和法院指定鉴定一样,具有同等的证据主体地位。司法实践中,对当事人自行委托鉴定结论持怀疑和否定的态度,不愿将其作为有效证据看待,甚至通过不予质证的方式直接否定其证据的证明力,这种看法和做法是值得商榷的。

Subjects of modern civil litigation are the parties,litigious evidence is the soul of civil litigation and the subject producing evidence is the party bearing the burden of proof.As one kind of legal evidence the process-starting subject of expert's conclusion,the conclusion-drawing subject,the subject choosing the way of identifica-tion and the organization of identification and the subject examining and traversing expert's conclusion should belong to the parties.In civil litigation,obtained from the self-identification the consultative identification or the court-appointed identification the experts' conclusion belong to evidential material before trial and examination,and the experts' conclusion can be regarded as the basis of determining facts only after the courts' examination.Therefore,self-identification,consultative identification and court-appointed identification have equal subjective status of evidence.In judicial practice,the experts' conclusion of the parties' self-entrustment is treated by suspecting and neglecting attitude,it is unwilling to be viewed as an effective evidence and even the probative force of evidence is directly denied by the way of no-examination.The above viewpoint and practice are open to question.