鉴定人出庭与专家辅助人角色定位之实证研究

Expert Witnesses' Appearance in Court and Positioning of Expert Assistants:An Empirical Study

新刑事诉讼法试图改变鉴定人出庭率低的现状,为此完善了鉴定意见审查规则;相应地,新确立的专家辅助人制度也被寄予厚望。从理论上看,保障被告方的对质权应成为上述改革的主要支点。但实证研究显示,鉴定人出庭率并没有因为新刑事诉讼法的实施而显著改善,鉴定人与法官对于鉴定人出庭都缺乏积极性;专家辅助人在法庭上的角色定位是模糊的,其在鉴定人、证人、辩护律师和其他独立的诉讼参与人等角色之间徘徊。应当围绕保障被告方的对质权来完善必要鉴定人出庭制度,在保留职权化和强调中立性的鉴定制度的同时,赋予专家辅助人意见以证据能力,以构建控辩平等的司法鉴定体系。

The new Criminal Procedure Law of People＇s Republic of China, implemented in 2013, strengthens the system of expert witnesses＇ appearance in court, introduces the expert assistant systern, and tries to find news approaches to the reform of the expert appraisal system, of the evidence system, and of the trial mode in China. In essence, expert witnesses＇ appearance in court is a process in which an expert witness receives cross-examinations from both the prosecution and the defense on his appraisal opinions in court, so as to guarantee the defendant＇s right to examine witness against him. The expert assistant system stipulated in Article 192 of the new Criminal Procedure Law aims mainly at cross-examination of appraisal opinions. Protecting defendants＇ rights to cross-exami- nation should be the theoretical pivot of the system of expert witnesses＇ appearance in court and the expert assistant system. However, empirical studies show that, there has no marked change in the rate of expert witnesses＇ court appearance since the implementation of the new Criminal Procedure Law. The problem of low rate of court appearance of expert witnesses in China is actually a problem of the low rate of cases in which an expert witness is required to appear in court. And both expert witnesses and judges lack motivation with respect to expert witnesses＇ appearance in court. Moreover, the role played by an expert assistant in court is vague, that is, it can be that of an expert witness, a witness, a defense lawyer or an independent participant in litigation. In the future, China should further develop the system of expert witnesses＇ appearance in court and the system of expert assistant by strengthening the defendant＇ s right of cross-examination and making admissibility in court, so as to build the prosecution and the defense. an expert appraisal system based the opinions of expert assistant on the equality of arms between