法学院知识库

司法鉴定人出庭制度作为司法鉴定制度的重要组成部分，在三大诉讼法中都有明文规定。司法鉴定人出庭作证，既是鉴定意见作为证据需接受法庭质证的本质要求，也是对当事人诉讼权利的保障。法律对鉴定人出庭制度的规定在我国程序法上算是一大进步，然而当前的立法还不完善，司法实践也不规范，导致这一制度在实践中问题突出，为此，该制度还需进一步完善。作者一方面通过实践对我国司法鉴定人出庭的现状进行了考察，并对鉴定人出庭现状中出现的问题进行了分析，发现我国司法鉴定人出庭率低且出庭质证流于形式，这和鉴定人出庭制度的立法初衷有着很大的差距，另一方面对英美法系专家证人出庭制度和大陆法系鉴定人出庭制度进行了探究和评价，同时结合笔者自身在司法鉴定领域的工作实践，提出了完善我国司法鉴定人出庭制度的措施。本文约三万字左右，除引言和结语外共分为四部分: 第一部分是对司法鉴定人出庭制度的概述。对司法鉴定人出庭制度进行了基本研究，阐明了鉴定人出庭作证的相关概念及理论基础，分析了我国司法鉴定人出庭作证的必要性。 第二部分是对我国司法鉴定人出庭的现状及原因分析。包含了理论界对我国司法鉴定人出庭现状原因所持的观点及笔者对其的评价，笔者将鉴定人出庭现状问题的原因归结为鉴定人出庭制度立法不完善和配套制度不健全。 第三部分是对域外司法鉴定人出庭制度的探究和评析。从鉴定人的选任、质证程序的规则设计、鉴定人出庭的权利保障和因故不出庭责任的承担、鉴定人人身安全保护及经济补偿等方面对两大法系专家证人和鉴定人出庭作证制度进行了考察和评价，希望在完善我国司法鉴定人出庭制度方面能有所借鉴。 第四部分提出了完善我国司法鉴定人出庭作证制度的措施。本部分是全文的重点，在对我国司法鉴定人出庭现状及原因进行分析和对域外做法考察的基础上，从立法方面对于当事人要求鉴定人出庭作证的条件及法官对当事人申请鉴定人出庭的审查标准予以明确，同时规范了鉴定人必须出庭的范围和因故不出庭的责任及惩罚措施，从实践层面提出保障鉴定人出庭的受质权，以及鉴定人出庭作证配套制度的完善，包括专业辅助人制度的完善、鉴定人出庭的专业培训、鉴定人出庭的评价机制等。

As an important part of the judicial authentication system, the system of the judicial authenticator appearing in court as a witness is expressly provided in the three major procedural laws, including Administrative Litigation Law, Civil Procedure Law, Criminal Procedure Law. It is not only the essential requirement of expert opinion being cross-examined at court, but also the guarantee for the litigant lawsuit right for Judicial authenticators to appear at court. This provision has been regarded as a big progress in the field of procedural law in China, but at present, the involved legislation is still not perfect and its judicial practice is still not standardized, causing many problems in the practice of the system, so more efforts are needed to make improvement.On the one hand, the author, in her practice, makes an investigation to the present situation of judicial authenticator appearing in court in China and finds that the frequency of judicial authenticators appearing at court is low and the action becomes formalistic, which exists a big gap from the original intention of the legislation of the system.

On the other hand, with the exploration and evaluation of the system of expert witness appearing at court under Anglo-American law system and the authenticator appearing at court as a witness under continental law system, the author puts forward measures to improve the system, with the combination of her own practice experience in the field of legal authentication. The thesis consists of 4 parts, in addition to the introduction and conclusion , with a total of about 30000 words.

Part one deals with the overview of the system of judicial authenticators appearing at court. In this part, the system is mapped out, the involved concepts and theories are clarified and the necessity of the judicial authenticators appearing at court in China is analyzed.

Part two covers the current situation of the judicial authenticators appearing at court in China and its cause analysis. It includes the opinions from the academic circle about this issue and the author’s evaluation of these opinions. The author attributes the problems arose in the practice of judicial authentication in China, to the imperfection of judicial authentication legislation and inadequacy of the support mechanism.

In part three, the exploration and evaluation of the system of the judicial authenticators appearing at court in other countries are provided. In the respects of the selection of judicial authenticators, the rule design of cross examination procedure, the protection of the right of the judicial authenticator appearing at court and the commitment of responsibility of the judicial authenticator not appearing at court and the safety and economic compensation of the judicial authenticator, to make the investigation and evaluation to the systems of expert witness and judicial authenticator appearing at court in the two law systems, in hopes of obtaining meaningful reference in improving the system of judicial authenticators appearing at court in China.

Part four provides some measures to improve the system of judicial authenticators appearing at court in China. As a key part of the thesis, this part, based in the analyses of the current situation of the practice of the judicial authenticator appearing at court in China and some problems arose, the condition by which the litigant can ask for the judicial authenticator to appear at court and the standard by which the judge makes the examination of the litigant asking for judicial authenticators to appear at court are illustrated, and the scope in which the judicial authenticators must appear at court and the responsibility which the judicial authenticators should assume because of the failure to appear at court and the related punishment measures are provided; at the level of practice, the thesis points out that the examination rights of the judicial authenticator should be guaranteed, and the support systems of the judicial authentication should be approved, including the system of professional assistants, the qualification training of judicial authenticators appearing at court and the evaluation system of judicial authenticators appearing at court.