论鉴定人出庭制度如何走出实践困境——以民事诉讼为视角

Resolving the Dilemma Regarding Appraisers' Appearing in Court——from the Perspective of Civil Proceedings

从近两年的实践看,鉴定人出庭率并未因该制度写入新的《民事诉讼法》而有所提升。选取近两年全国法院千件涉鉴定人出庭案件为分析样,从程序的启动主体、申请方式、申请期限、出庭费用负担、法院和鉴定机构(鉴定人)对出庭申请的裁量态度以及地域经济等要素出发,查找实践中制约鉴定人出庭制度运行的影响因素。在理顺鉴定人出庭制度运行逻辑的基础上,以程序价值定位、证据理念归位、运行规则就位、配套措施同位为框架,对鉴定人出庭程序规则进行设计与完善,以期促进鉴定人出庭制度在司法实践中取得立法的预期效果。

Though it has been written into the new Civil Procedure Law, forensic expert＇s appearing in court has not increased for the past two years. Analyzing about one thousand cases, in which the forensic experts were testified in Court across the country in the past two years, the author tr/ed to find out the factors limiting the practice of this rule, from the aspects of the starting of the procedure, the form and the time of application, the sharing of cost, the attitude of courts as well as forensic institutions or experts. On this basis, the author proposed how to design and improve the rules from the perspectives of the procedure, evidence, operation and other measures, in order to achieve the expected result of legislation for forensic expert＇s appearing in court in judicial practice.