司法鉴定行政与司法视角的边界——民诉证据司法解释鉴定内容的思考

The boundary of judicial expertise between administration and judicature:Reflections on the forensic expertise involved in interpretation of evidence in civil trials

2019年12月26日,最高人民法院发布了《关于修改〈关于民事诉讼证据的若干规定〉的决定》,备受司法界关注。其中,涉及司法鉴定的条款达24条之多,笔者结合《司法鉴定程序通则》,对相关内容予以了梳理与比较,揭示了民事证据规定给司法鉴定带来的变化与问题。民事证据规定重点规制了司法鉴定启动、受理、鉴定人出庭接受质询、鉴定人诚信承诺、鉴定人权利保障,鉴定人的出庭义务、遵守鉴定时限的义务,以及围绕鉴定资料的真实性、合法性方面的规定,以期保障鉴定质量。与此同时,民事证据规定也带来了管理上的边界之争的问题,包括司法鉴定行政管理部门与法院之间、法院与司法鉴定机构之间,以及法官与鉴定人之间权利义务的边界之争与之推,司法鉴定呈现多头管理已见端倪。本研究直面司法鉴定发展中的问题,建议尽早启动司法鉴定立法工作,强化鉴定意见的法庭质证,明确虚假鉴定的认定标准,梳理鉴定多头管理乱象等等,希望可以对司法鉴定制度的改革有所裨益。

On December 26,2019,the Supreme People's Court issued the Decision of the Supreme People's Court to Amend the Some Provisions on Evidence in Civil Procedures(2019)(hereinafter referred to as the‘Provisions’),which has attracted much attention in the judicial community.Within the Provisions,there are as many as twenty-four articles concerning about judicial appraisal.This paper will explain and compare the relevant content in combination with the General Rules on Procedures for Forensic Identification to reveal the changes and challenges brought by the Provisions to judicial appraisal.In order to improve the quality of the appraisal,the Provisions mainly regulate the initiation and acceptance of judicial appraisal during the trial period,the appearance of expert witness in court for cross-examination,the commitment of expert witness,the rights and the obligations of expert witness to appear in court and to comply with the time limit for appraisals,as well as the authenticity and legality of the appraisal materials.In the meanwhile,the Provisions also create the boundary disputes on management,including disputes over the boundaries of rights and obligations between judicial appraisal administrations and courts,between courts and judicial appraisal agencies,and between judges and expert witnesses.The multiple management in forensic identification has already been taking shape.This paper aims at the problems in the development of judicial appraisal and recommends to start the judicial appraisal legislation as soon as possible,to strengthen the court's cross-examination of expert opinions,to clarify the standards for false appraisal,and to sort out the chaos of appraisal management.All of the above are expected to benefit the reform of the judicial appraisal system in China.