试论我国司法鉴定人的民事责任及其完善

本文阐述了鉴定人的涵义和世界主要国家鉴定人承担民事责任的不同模式,分析了我国鉴定人承担民事责任的理论基础,最后结合我国在鉴定人制度方面存在的问题,提出了完善鉴定人制度的一些建议。     

试论我国司法鉴定人的民事责任及其完善

本文阐述了鉴定人的涵义和世界主要国家鉴定人承担民事责任的不同模式，分析了我国鉴定人承担民事责任的理论基础，最后结合我国在鉴定人制度方面存在的问题，提出了完善鉴定人制度的一些建议。     

The dichotomy of the expert witness

The expert on either side is either right, partially right, wrong, or wrong and dishonest. Even strongly opposed testimony is not evidence of dishonesty, although it is clear at least one expert is wrong. Some differences are the result of legitimate differences of opinion. However, the author has identified several categories of testimony that show dishonest intent. It is clear that the growth of financial incentives has increased the number of cases in which there are opposing experts. If some kind of corrective action is not taken, expert witnesses will no longer be an effective force in the legal system. A multidisciplinary testimony review board separate from the ethics function is clearly one answer to the problem.     

Notes on the psychologist expert witness

The psychologist who takes the witness stand to testify concerning the reliability of an eyewitness's testimony should assume the role of a watchdog, not a lapdog for the prosecution or an attack dog for the defense. The watchdog role is illustrated by a discussion of the decisions made by the author before accepting an invitation to testify as an expert.     

Ten years in the life of an expert witness

American Courts are experiencing increased use of expert testimony based upon psychological research. Ten years ago, I began testifying about my own research on human perception, recollection, and eyewitness accounts. The growing acceptance of this testimony percipitated a backlash from some psychologists. This essay describes the chronology of these events, and their relevance for the more general use of psychological research as evidence in court.     

论法律推理的合法性要求

合法性是对司法审判活动的基本要求,在法律推理中同样如此。法律形式主义的合法性理论遭到了法律现实主义的否定,这两种理论都是以简化的法律推理模式为出发点的。本文指出,法律推理的合法性首先要求法律推理必须使用法律上的理由;其次还取决于当事人及其律师的合法参与以及社会对司法判决的一般性接受。     

论行政立法的公开原则

行政立法公开,就是将行政立法程序的各个阶段及其阶段性成果向社会公开,主要包括立法文档和立法文本的公开等内容.在行政立法中贯彻公开原则,是公民行政知情权的制度性保障.但是,作为完整意义上的公开原则在我国行政立法中远未得以真正确立,为此必须建立和完善立法公告、文档公开、立法参与等一序相关法律制度.     

医学会应做好准备 积极应对专家出席法庭

新修订的《中华人民共和国民事诉讼法》于2013年起开始实施。当事人对鉴定结论有异议,要求鉴定专家出席法庭作证已是大势所趋。医学会开展医疗事故(医疗损害)鉴定,专家签名和出席法庭的问题已经没有讨论的必要,如何采取措施积极应对是医学会要迫切考虑解决的问题。医学会、相关专家学者对这一问题进行过多次讨论,提出了多种建议、过度办法以及应对措施,但具体如何操作,还需要在实践中总结和探索。笔者以为,塑造和培养一支优秀的鉴定专家队伍,保证鉴定结论客观、科学、公正,写好鉴定书分析意见,使鉴定结论令当事人信服,是解决这一问题的关键。     

Immunity from suit of an expert witness extends to disciplinary procedures

This important decision provides that the immunity from suitof an expert witness in respect of evidence he gives in a courtof law extends to disciplinary procedures.     

Sexual offenders in preventive detention: data concerning the inmates and expert witness practice

In the last decade, preventive detention-especially that relating to sexual offenders- has gained relevance for the German legal system. However, data are lacking concerning the inmates and the modus operandi of the psychiatric experts. Court orders and psychiatric statements of 114 offenders with orders of preventive detention were examined, 57 of whom were incarcerated because of sexual offences. Sexual offenders mostly show antisocial personality traits or even disorders, with a history of poly-trophic delinquency. In only four cases, the diagnosis of a sexual disorder was given. The analysis showed a high rate of psychiatric expert testimonies' lacking basic information, with incomplete assessment of sexual history. None of the experts used standardized prognostic instruments, meaning that most of the risk factors included in the Sexual Violence Risk-20 and the Static-99 were not considered. Further work needs to be done to improve the quality of psychiatric statements concerning sexual offenders.     

Educator of the court: the role of the expert witness in cases involving autism spectrum disorder

The role of the expert witness in legal contexts is to educate fact finders of the court who may have no background in the expert’s area. This role can be especially difficult for those who assist in cases involving individuals with autism spectrum disorder (ASD). As expert assistance on ASD is crucial to ensuring just outcomes for individuals diagnosed with ASD, knowledge on how expert witnesses perceive and approach their roles, and what factors may influence these perceptions, is essential. This qualitative research utilizes semi-structured interviews with a sample of expert witnesses in cases involving ASD, analyzed using a grounded-theory constant-comparative analytic approach. Data reveal that experts appear to view their roles in court as reconstructionists, educators, myth-dispellers, and most of all, communicators, actively using their testimony to fill these roles in cases. These results also allow for the development of a model that illustrates two areas that coalesce to affect how experts view their roles in court: (1) personal experiences of experts in cases in which they have been involved; and (2) influences outside experts’ personal experiences, such as their general opinions or observations regarding ASD and its relationship to the criminal justice system.     

论诱惑侦查之合法性标准

诱惑侦查的核心问题之一即是其合法性的标准问题.本文在对国内外所提出的诱惑侦查的合法性标准考查的基础上,分析了各个标准的利弊,提出了修正应立足客观,兼顾主观的标准,建立一种首先考察客观,然后考察主观的两步判断标准,以达到最大限度地保障人权的目的.     

立法数量、价值与法治国家建设

自党的十五大提出“依法治国,建设社会主义法治国家”的治国方略后,依法办事已经成为“种新的公众追求和流行的话语。因为伴随着依法治国方略的提出,依法治省、依法治市、依法治县、依法治脏、依法治乱……等等诸如此类的“依法办”也开始流行起来,各部门、各单位的立法积极性也空前高涨。但是,应该承认,当下中国,法治往往被仅仅理解为一种立法数量的增加。笔者认为,在建设法治国家过程中,我们一方面要做到有法可依,但不能仅仅追求立法数量的增加;另一方面要注重克服立法技术方面的缺陷,注意立法价值的公平选择。一 关于法治,…     

国外专家证人制度对我国医疗损害鉴定体制改革的启示

司法鉴定过程中专家证人制度是其灵魂。就国外来说,大陆法系和英美法系对专家证人制度的规定大相径庭。本文从概念定位、选任和出庭制度等方面比较大陆法系和英美法系在专家证人方面的规定,进而提出完善我国专家证人制度的若干建议。     

The people v. the principle of legality in the People's Republic of China

The history of the People's Republic of China (PRC) since 1949 makes it apparent that the principle of legality is ideological anathema to the Party leadership there. In Western jurisprudence, in anthropology of law and in the nascent field of sociology of law, the development of the principle of legality has consistently been seen as a necessary foundation for the positive evolution of any legal system. The use of law in China in the recent past raises fundamental questions about this premise. The Chinese experience suggests a new hypothesis as to legal development for laboratory and field testing. This article will review the Chinese experience and formulate that hypothesis.     

Emergent authority and expert knowledge: Psychiatry and criminal responsibility in the UK

In the UK context, the rise of the discipline and practice of forensic psychiatry is intimately connected with the concurrent development of principles and practices relating to criminal responsibility. In this article, we seek to chart the relationship between psychiatry and the principles and practices of criminal responsibility in the UK over the early modern, modern and late modern periods. With a focus on claims about authority and expert knowledge around criminal responsibility, we suggest that these claims have been in a state of perpetual negotiation and that, as a result, claims to authority over and knowledge about criminal non-responsibility on the part of psychiatrists and psychiatry are most accurately understood as emergent and contingent. The apparent formalism of legal discourse has tended to conceal the extent to which legal policy has been preoccupied with maintaining the primacy of lay judgments in criminal processes of evaluation and adjudication. While this policy has been somewhat successful in the context of the trial – particularly the murder trial – it has been undermined by administrative procedures surrounding the trial, including those that substitute treatment for punishment without, or in spite of, a formal determination of criminal responsibility.