倾向性鉴定意见实质审查的完善路径——以实践误区的类型化分析为起点

Perfect Path of Substantive Examination of Tendentious Appraisal Opinions:Starting from Typological Analysis of Practical Errors

鉴定意见的倾向性是基于对鉴定结果的负责而产生的表述方式,反映的是鉴定结果与客观真实之间的符合盖然率。作为更加合理的表述方式,倾向性鉴定意见在鉴定实务中有着较高的出现频次。但由于主客观因素的影响,法官在对倾向性鉴定意见审查时却存在不同的误区。当前的审查误区存在明显的类型化特征,主要有直接采信或排除、证明责任分配不当、直接认定瑕疵证据三种类型。而加强可视化证明力判断,构建审查二分化体系以及清晰化适用相关证据规则是走出误区,改善倾向性鉴定意见审查现状,推进庭审实质化的有效路径。

The inclination of appraisal opinions is based on the expression of responsibility for appraisal results, which reflects the probability of conformity between appraisal results and objective truth. As a more reasonable way of expression, tendentious appraisal opinions have a higher frequency of appearance in appraisal practice. However, due to the influence of subjective and objective factors, judges have different misunderstandings when reviewing tendentious expert opinions. There are obvious typification characteristics in the current errors of review, which mainly include direct acceptance or exclusion, improper distribution of burden of proof, and direct confirmation of defective evidence. It is an effective way to get rid of misunderstandings, improve the status quo of tendentious appraisal opinion review, and promote the substantive trial by strengthening visual proof judgment, constructing the bifurcation system of examination and clarifying the application of relevant evidence rules.