司法鉴定启动条件研究

Studies on initiation conditions of judicial forensic appraisal

我国诉讼法对司法鉴定及鉴定意见的制度性缺位使得鉴定意见从"证据之王"沦为"是非之王"。司法鉴定的启动制度是连接司法鉴定管理制度与鉴定意见证据制度的桥梁,立法完善与实践问题的解决应当重视对司法鉴定启动规则的建构。诉讼法应当明确规定司法鉴定的启动条件,鉴定事项与案件事实之形式关联性、鉴定必要性是启动司法鉴定的一般性条件。此外,应当规定可能被判处死刑的案件、被告精神状态存疑的案件以及特定情形下法院依职权的司法鉴定强制启动制度。同时,应当结合现有相关立法来设定补充鉴定及重新鉴定的启动条件。

The institutional absence of the system of judicial forensic appraisal and appraisal opinion in our Procedure Law makes the appraisal opinion fall from ＂the king of evidence＂ to ＂the king of controversy＂. The initiation system of forensic appraisal is the bridge between the regulatory regime of forensic appraisal and the evidence system of appraisal system. In order to solve problems regarding legislative improvement and practice, more attention should be paid to the construction of initiation rules of forensic appraisal. The Procedure Law shall specify the initiation condition of forensic appraisal, form relevance between appraisal item and case facts, as well as clearly stipulate that the necessity of forensic appraisal is the general condition of forensic appraisal initiation. Moreover, the initiation system should be established in cases that could be sentenced to death penalty, cases that the mental state of the defendant remains unclear, and particular cases where the forensic appraisal force initiated by the court. In the meanwhile, relevant current legislation shall be considered to set up the initiation conditions of supplementary appraisal and re-appraisal.