证人、鉴定人出庭作证费用补偿制度比较研究

Cost for Witnesses or Appraisers to Testify in Civil Action

证人、鉴定人出庭作证费用本质上属于证人、鉴定人履行出庭作证义务的对价,应由受诉法院向证人、鉴定人给付,且最终作为诉讼费用的一部分由当事人负担。证人、鉴定人出庭作证费用的补偿范围和补偿标准也应由立法作出统一、明确的规定,这不仅是科学构建证人、鉴定人出庭作证费用补偿制度之应有要义,也是大陆法系主要国家或地区的立法通例。我国现行相关规范不仅未厘清证人、鉴定人出庭作证费用的性质,也未能合理界定其补偿方式和具体路径,更存在证人出庭作证费用补偿范围不明确、补偿标准不统一以及鉴定人出庭作证费用补偿制度立法缺失等问题,导致民事司法实践中证人、鉴定人补偿制度适用失范。

The cost of the witnesses or appraisers appearing in court is to make up for the necessary expenses which disburse in the process of witnesses or appraisers appearing in court to exercise the jurisdiction of public law obligation to the court. Essentially, the cost is the necessary consideration for the performance of the obligation to testify in court, which should be paid by the court on behalf of the state to witnesses or appraisers and finally as a part of litigation fee shall be borne by the party. The range and standard of compensation for witnesses or appraiser＇ s legislation should be unified and clarified by the legislation. This is not only the point of scientific construction of the compensation system of the cost for witnesses or appraisers to testify in civil action, but also the general rule in the main civil law countries or regions. Our country＇ s existing relevant legislative norms not only failed to clarify the nature of the cost of the witnesses or appraisers appearing in court but also failed to reasonably define the corresponding compensation methods and specific paths, there is uncertainty in the scope of compensation, disunion of the compensation standards for witness testimony costs, and a lack of the appraiser＇ s testimony costs on legislation. All of those imperfections cause applicable anomie of the compensation system for witnesses or appraisers in civil judicial practice.