浅论我国司法鉴定启动权

An Elementary Discussion on the Rights to Initiate Forensic

随着司法证明方式的变化,司法鉴定在诉讼活动中的作用越来越大。启动鉴定程序的权力归属于谁,直接影响着审判机关在诉讼中对鉴定结论这种证据的认定。目前我国司法鉴定启动权的配置不尽合理,造成了鉴定资源和鉴定权力的垄断和封闭,很大程度上影响到司法审判顺利、高效进行。因此,应借鉴两大法系的成功做法,建立以侦控机关决定鉴定为主,同时赋予当事人鉴定申请权,以司法机关启动鉴定为辅的混合鉴定启动模式。

As the approaches for the proof of facts in a legal proceeding have been ever evolving, weights that are given to forensic investigations have been increasing alongside. To which parties the rights to initiate forensic investigation procedures are ascribed has a direct influence on the admissibility of the investigation results by judicial authorities. In this paper, it is considered that in China, the allocation of rights to initiate forensic investigations is not entirely as rational, which has resulted in the monopoly and preclusivity of investigation resources and rights, and prevented jurisdictions from being executed smoothly and effectively. It is also pointed out here that lessons may be drawn from successful practices of the two major legal systems, and a complex investigation initiation scheme shall be established, with the detective authorities being the principal initiators for an investigation, meanwhile the litigants being endowed with the rights to the application for it, and the judicial authorities being the ancillary initiators.