专家辅助人到底辅助谁——法教义学语境下刑事诉讼中专家辅助人的身份厘定

Who Does the Expert Assistant Assist in the End?——The Identity Analysis of the Expert Assistant with the Method of Dogmatics in Criminal Procedure Law

刑事诉讼中专家辅助人制度实施已四载有余,然而,立法的语焉不详,致使学界对专家辅助人的身份众说纷纭,理论上的纷争也使得实践上的操作困难重重。从法教义学的立场和方法进行分析,鉴定人说、证人说、独立诉讼参与人说等多有偏颇,而将专家辅助人身份界定为特殊代理人,则可以解决专家辅助人权利义务不明确、专家意见难以定性、专家辅助人出庭难等系列难题,同时也维护了刑事诉讼法的体系性与稳定性。

The expert assistant system has been implemented for more than three years,however,due to the vagueness of the legislation,scholars have different opinions about the identity,which makes practical operation rather difficult. From the standpoint and the method of dogmatics of law analysis,many theories about the identity of the expert assistant were biased. While if the identity is defined as a special agent,the following problems can be solved accordingly： the expert assistant＇s rights and obligations are not explicit; the opinions of the experts are difficult to characterize; it is difficult to appear in court as an expert assistant and so on. It also maintains the system and stability of the criminal procedure law.