法官对专家辅助人意见的采信与心证形成的路径分析

Judge's Judgment on Expert Assistance and Path Analysis

2012年《民事诉讼法》规定了专家辅助人两种出庭情形:与鉴定人进行质证;对案件所涉专业问题发表意见。两种情形不仅在事实认定中承担着本证与反证的不同功能,其意见效力、法官采信的逻辑亦有差别。目前,专家辅助人意见在我国不属于法定证据,2015年《民事诉讼法司法解释》将其视为当事人陈述的规定,更加弱化其效力,导致实践中法官在采信专家意见时难以操作。因此,赋予专家辅助人合法的诉讼地位和法定证据效力,并对专家辅助人出庭的条件、资质要求、意见属性、法院审查标准等方面予以规定,不仅完善立法,也具有非常重要的实践意义。

In 2012, The newly amended Civil Procedure Law provide for two kinds of situation, when expert assistants appeared in court, cross -examination with the appraiser and expressing professional opinions of experts. The two different appearance not only make the expert assistants to bear the different function of the proof and the disproof, its legal effect and the logic of the judge＇ s judgment are also different. Currently, expert assistance is not legal evidence, and is also prescribed as the statement of the parties in Judicial Interpretation of Civil Litigation, which makes its effect weakened, and the judge＇ s judgment much difficult too. So given its legal status of litigation and legal evidence validity is crucial, it is also necessary to stipulate the trial conditions, qualification requirements, opinion attributes, court review standards and other as- pects of expert assistance. Not only perfect legislation, but also have very important practical significance.