比较法视野下刑事鉴定意见的审查认定

Examination of Criminal Expert Opinion in the Perspective of Comparative Law

我国一方面借鉴了英美法系专家证言的可采性规则,确立了鉴定意见的排除规则,以规范法官在审查认定鉴定意见时的自由裁量权;另一方面,移植了大陆法系国家的专家辅助人制度,旨在专家的辅助下,使控辩双方能对鉴定意见进行有效的质证。但是,我国法官对鉴定意见的审查实际上停留在对鉴定报告书的书面审查层面,非庭前或庭上的实质审查。鉴定意见的实质审查和鉴定意见排除规则的有效适用,有赖于"审判中心主义"的裁判模式改革的推进。

On the one hand,we have borrowed the admissibility rules from the expert testimony of the common law system,and established the rule of exclusion of expert opinion,so as to standardize the discretion of the judge in the review of the opinion.On the other hand,we have also transplanted the expert assistant system of continental law system countries to make the prosecution and the defense carry on the effective cross examination of expert opinions with expert assistance.However,the review of the judge＇s opinion on the appraisal actually stays in the aspect of the written examination of the appraisal report instead of the substantive examination before the court or in court.The substantive examination of the appraisal opinion and the effective application of the exclusion rule of expert opinion depend on the reform of the judicial mode of the Judicial Centralism.