鉴定人出庭作证制度立法解读与完善进路——以2012年民事诉讼法为背景

Explanation and Improve: the Appraiser Appearance——Set in 2012 civil procedural law

鉴定人出庭率极低一直是困扰鉴定意见审查的障碍,2012年新民事诉讼法强化了其出庭义务,具有重要意义。但仍然存在诸多遗憾,如程序启动不合理、鉴定人权利保障不充分,出庭内容不明确,配套机制不健全,救济机制缺乏等。其完善必须尊重当事人程序选择权,赋予鉴定人报酬请求权和安全保障权。同时,通过制定详细的鉴定人出庭庭审细则和鉴定意见采信标准,明确出庭程序内容,完善专家辅助人制度、双向视听传输技术作证制度等配套机制。最后,在鉴定人不出庭导致鉴定意见不被采信时,应准许当事人申请重新鉴定。

The appraiser rarely appearance in court which always puzzles how to examine appraisal opinion in＇civil procedure. In 2012, it is very meaningful that the new civil procedural law has provided relevant situation and legal consequence to strengthen appraiser appearance in Court. But there is still a pity, such as procedural starting is unreasonable, the protection of appraiser＇s right is insufficiency , the contents of appearance in court is unclear , the support mechanism is inadequate, the remedy mechanism is lacking and so on. To perfect this system, we should strengthen litigant ＂s relevant procedure-choosing right, endow them reward-requiring right and security-requiring right. At the same time,we should define the contents of appearance in court, perfect expert auxiliary system and testification system of two-way audio-visual transmission technology and so on by detailing the regulation wich appraiser appearance in court and the appraisal opinion admission standard. At last, if appraisal opinion cant be accepted as the basis of verdict due to appraiser＇s absence in court,, we should allow litigant to apply for another identification.