从“科学的代言人”到“当事人的枪手”——专家证人历史沿革与我国现实考察

英美法系在很早以前就认识到了专家在审判中的重要作用，而具有偏向性专家证人则是对抗制的产物。在中世纪，专家是以陪审团成员或者法官顾问的身份出现在法庭上的，由法官进行引导和控制．以保证其中立性和公正性。16世纪，随着知情陪审团被不知情陪审团所替代，法院开始传唤专家出庭，就某个专业问题向陪审团提供意见和结论。到了18世纪．英美法系审判中对抗的因素越来越多．双方当事人开始传唤专家作为各自的证人出庭提供意见。但18世纪末19世纪初的专家证人并不具有偏向性。直到19世纪中期，专家证人开始为各自当事人的利益服务．在法庭上为就与案件事实相关的专门性问题提出自己的意见．现代意义上的专家证人产生。梳理英美法系专家证人的历史对我国司法鉴定制度改革具有重要的指导意义。我国现已全面确立专家辅助人制度．专家辅助人应当具有中立性．并需构建一系列的程序和制度对专家辅助人的中立性进行保障。

From a ＂Spokesperson for Science and Technology＂ to a Hired-gun for a Party to a Case＂-- Study on Expert Witnesses from Historic perspective and the Current Practice in China.

The courts of Anglo-American Legal System has long attached great importance to experts, but experts appearing in court as witnesses for the parties to a case is the product of adversary system. In the Middle Ages, experts appeared at the court as members of jury or the court advisors, were guided and instructed by the judges to ensure the neutrality and impartiality. In the 16th century, when the self-informing jury was replaced by the passive jury, experts were summoned by the judges as witnesses to provide specialized opinions to the jury. In the 18th century, as the opposing views were on an increase in the courts of Anglo-American Legal System, par- ties involved began to have expert witnesses to appear in court with specialized and non-partisan opinions. In the middle of the 19th century, expert witnesses in court began to provide opinions favorable for the party who hired them, therefore, the expert witnesses in the modem sense arose, and they in court presented their specialized opinions on facts of the cases. Reviewing the history of the development of the forensic expertise will do good in guiding China to reform. Nowadays China has set up an expert auxiliary personnel system, which requires that expert assistants should be bound to be neutral, and to safeguard the impartiality, efforts should be made in proce- dures and mechanism.