论“有专门知识的人”参与刑事诉讼——兼论《刑事诉讼法》第192条

On Persons with Expertise Attending Criminal Proceedings——Also on the Article 192 of the New Criminal Procedural Law

"有专门知识的人"参与刑事诉讼的制度具有保障当事人对鉴定意见的质证权、辅助法官对是否采信鉴定意见作出判断、使重新鉴定申请和决定依据更加充分等功能和价值。其积极作用的奏效,亟待解决如下理论问题:"有专门知识的人"的诉讼地位、中立性、意见效力、选任资格及启动程序等。"有专门知识的人"应界定为"专家辅助人",属于广义的诉讼参与人。他们具有倾向性的问题,要完善启动和选任程序,确保其客观公正地提出意见。可由各省高院牵头成立"专家库",由法庭根据控辩要求从中择优聘请。"有专门知识的人"出庭的费用由司法经费出资以确保其立场中立。

The New Criminal Procedure Law has established the system regarding persons with expertise, this system positively helps to enhance the function of cross-examination of forensic appraisals, fill the knowledge gap between experts and judges, provide sufficient basis in the application and decision of re-identification. However, it faces some problems such as the status of ＂persons with expertise＂ in litigation is not clear, neither are its neutral position principle and its qualification. The determination process of this system and the validity of its testimony need to be further studied. Based on analysis, it was strongly recommended that ＂persons with expertise＂ should be regarded as participants in litigation. It is necessary to emphasize its professional ethics so as to guarantee a sound mechanism. It is a wise decision for higher people＇s courts to establish ＂expert database＂ so as to provide experts for judges according to requirements of both parties. In order to guarantee its neutral position, the cost for ＂persons with expertise＂ appearing in court should be paid by the judicial budget.