民事诉讼专家辅助人的法律定位及其制度完善——以法条与司法解释的逻辑解读为基点

The Legal Status and the System Improvement of the Auxiliary Expert in the Civil Litigation——From the Beginning of the Logical Interpretation of Law Articles and Judicial Interpretations

根据对法条和司法解释的逻辑解读,我国民事诉讼中的专家辅助人制度系对鉴定制度的补充,专家辅助人应属于裁判辅助主体,以辅助法院对涉及专门性问题的鉴定意见和案件事实作出正确的判断和认定,但其所发表的专家意见不具有证据效力。专家辅助人在资格确定上应与我国鉴定制度相适应,享有查阅案卷,向当事人、鉴定人和证人发问,要求鉴定人就其鉴定意见作出具体说明,参与法庭辩论,发表"专家意见"等诉讼权利,并承担相应的诉讼义务和责任。专家辅助人可以通过参与法庭审理和庭前证据交换,以口头和书面的形式提供辅助,辅助范围也不应限于自然科学问题,但不得就法律适用问题发表意见。

According to the logical interpretation of law articles and judicial interpretations, the institution of auxiliary expert in the civil litigation in our country is a supplement of the appraisal system. The auxiliary experts ought to belong to the subject of referee aux- iliary who can make the fight decisions and identifications to the questions which special issues are involved. However,the expert opin- ions they give do not have the effect of the evidence. The qualification identification of the auxiliary experts should adapt to the apprais- al system in our country. That is to say the auxiliary experts have the fight to inspect the f＇de, ask some questions to the parties, ap- praisers and witnesses, require the appraisers to instruct their opinions specifically, participate into the court debate and state ＂the ex- pert opinion＂. Simultaneously, they must undertake obligations and responsibilities of litigation correspondingly. The auxiliary experts can provide supplementary in the form of written and oral by participating into the court hearing and pre - trial exchanging of evidence. Certainly, the range of auxiliary should not be limited to natural science issues. However, the auxiliary experts also should not express their views for the law application.