刑事专家辅助人制度的反思与重构——基于当前刑事鉴定争议类型分布的研究

The Rethinking and Reconstruction of the Expert Assistant System in Criminal Procedure

新的《刑事诉讼法》规定了专家辅助人制度,被誉为一大制度创新。然而事实上,专家辅助人的身影在刑事程序中早已出现。他们由当事人聘请,在一些社会影响大、争议不断的案件中,监督、见证侦查机关的鉴定过程,成功地化解了当事人不满,避免了重复鉴定。而当前法律仅规定专家辅助人在庭审阶段,就鉴定人作出的鉴定意见提出意见,应该说,该制度的功能是有限的。因此,在职权鉴定格局无法更改的既定条件下,相关法律需回应司法实践,扩大专家辅助人参与的阶段与权限,使其提前介入侦查机关展开的部分重大案件的鉴定程序中,方能有效解决鉴定争议,节约诉讼资源、提高办案效率。

The expert assistant system is regarded as a system innovation in China when it first appeared in the new Criminal Procedure Law. However, expert assistants in criminal procedure have already existed in fact. They have been hired by parties to supervise the appraisal process and witness the investigation organs in some cases of significant social influence or continuous controversies. And this practice successfully resolves the parties＇ dissatisfaction and avoids repeated appraisal work. The current law only provides for expert assistants＇ comment on the expert opinions at the trial stage, so the function of the system is limited. When the circumstances of initiation of ex officio appraisal cannot be changed, the relevant laws should respond to the judicial practice, such as expanding the participation stage and the mandate of expert assistants, so that they can thus be involved in the investigation stage of some significant cases in order to resolve disputes regarding appraisal work, save resources and improve efficiency.