中国刑事案件中的涉鉴上访及其治理

The Petition on Judicial Identification in Criminal Cases and Its Governance

在中国刑事程序中,涉鉴上访现象频频发生,且相对集中于死亡原因、损伤程度等法医鉴定领域,它被当事人视为不满公安、司法机关鉴定意见时最常见的诉讼外救济措施和抗争策略。然而,涉鉴上访,尤其是重复上访、越级上访、多头上访等形式,却颠覆了程序自治,使案件争议久拖不决,司法权威一落千丈。涉鉴上访存在的众多问题在实践中固然有一定合理性,但目前却亟须国家重点治理,其核心措施在于建立"过程导向信任"的鉴定机制,利用程序的开放性与主体的多方参与性,吸纳与化解当事人对鉴定过程与结果的不满;将当事人上访作为例外的"底限救济"权。

In criminal proceedings, petitions on judicial identification often occur in China, relatively fo- cusing on cause of death, seriousness of injury and other matters in forensic fields. Such petitions are regarded as a non - litigation relief measure and resistance strategy when parties concerned dissatisfy with the appraisal opinions made by public security departments and judicial organs. However, some petitions such as repeated petitions, rank - jumping petitions, and multiple petitions have done substantial damages to procedural autono- my, leading to prolonged resolution of controversies and a disastrous decline of judicial authority. Though peti- tions on judicial identification are rational to some extent in practice, they require a nationwide key governance to resolve current problems. And the core measure is to establish an identification mechanism of ＂process ori- ented trust＂ and to rely on procedural openness and multiple parties＇ participation so as to dissolve the par- ties＇ dissatisfaction on appraisal process and results and to make the parties＇ petition as an exception with the fight to ＂bottom line relief＂.