鉴定人撤销鉴定意见的问题与对策——基于63例民事案件撤销鉴定意见的实证分析

Problems and Countermeasures of Revocation of Appraisal Opinions by Appraisers——The Empirical Analysis of Revocation of Appraisal Opinions in 63 Civil Cases

在民事司法实践中,鉴定人自行撤销鉴定意见的情况时有发生。通过实证研究发现,鉴定人撤销鉴定意见的时间多为鉴定意见被采信前,且多是迫于当事人上访、投诉、闹鉴等压力下的自保行为。然而鉴定人撤销鉴定意见降低了诉讼效率、影响裁判公信力,并且变相鼓励当事人采取不当行为推翻鉴定意见。在此背景下,2019年颁布的《最高人民法院关于民事诉讼证据的若干规定》第四十二条对鉴定人自行撤销鉴定意见进行了规制。但该规定仍存在语焉不详、可操作性差、缺乏对鉴定人出具鉴定意见的过程管控等问题。为了规制司法实践中鉴定人的撤销鉴定意见行为,在“以撤销为例外,不撤销为原则”的指导下,立法只应准许鉴定人在鉴定意见被采信后撤销错误的鉴定意见。

Nowdays, the revocation of appraisal opinion occurs more frequently in civil judicial practice. Through empirical research, it is found that the time when an appraisal opinion is withdrawn often occurs before the opinion has been accepted,and most of the revocation are self-protection measures of appraisers due to the pressure from the parties’ petition, complaint or trouble. However, the revocation of appraisal opinions reduces the efficiency of litigation, impares the credibility of trials, and covertly encourages the parties to take improper actions to overturn appraisal opinions. In this context, Article 42of Several Provisions of the Supreme People’s Court on Evidence in Civil Litigation promulgated in 2019 regulates the revocation of expert opinions. Nevertheless, there are still some problems in this regulation, such as vague, poor maneuverability and lack of process control of appraisal opinions. In order to regulate the revocation of appraisal opinions in judicial practice, under the guidance of “revocation as an exception, non-revocation as the principle ”, legislation should only allow wrong appraisal opinions to be withdrawn after the expert opinions have been accepted.