鉴定人出庭作证制度的解构与完善——以《民事诉讼法》第78条为基点展开

The Deconstruction and Improvement of the Appraiser Appearance:Set in the Seventy-Eighth Article of Civil Procedural Law of the People's Republic of China

鉴定人出庭作证制度在新修改的《民事诉讼法》中已正式登场亮相。该法第78条增设了法院酌定启动鉴定人出庭作证程序和鉴定人拒不出庭的法律后果。根据证据法原理,鉴定人出庭作证程序启动应以当事人异议为主,法院酌定为辅。鉴定人拒不出庭作证应区分是否有正当理由,不应随意否定鉴定意见的证据能力,对鉴定人的制裁应适用罚款和向有关机关提出司法建议给予行政处罚。为了实现鉴定人出庭作证制度的功能,出庭费用补偿等保障制度亦应适用于证人出庭作证的相关规定,以符合制度的应有逻辑并有利于鉴定人权利之保障。

In 2012, the appraiser appearance is stipulated in the civil procedure law. Compared with the existing relevant provisions, the court has the power to start the procedure, and the appraiser refusing to appear in court should bear the legal consequence, the two are new open in the seventy - eighth article of Civil Procedural Law. According to the principle of evidence law, starting the procedure should give priority to the dispute of the party; the court＇ s discretion is complementary. The appraiser refusing to appear in court should distinguish whether there are justified reasons, the court should not arbitrarily deny evidence ability of the expert opinion, and the appraiser sanctions should be applied fines and administrative punishment by judicial suggestions. In order to achieve the function of the appraiser appearance, security system including costs compensation rules of appearance in court should be applied to the witness appearance that will conform to the system logic and protect the rights of the appraiser.