试论专家在司法鉴定中的角色定位

作为科学、技术或其他专门知识的“载体”,专家在诉讼中的职能越来越广泛.由于诉讼模式的差异,专家在诉讼解决专门性问题时具有不同的角色定位.当事人主义诉讼模式下,专家被视为当事人的证据方法;职权主义诉讼模式下,专家充当法官的辅助人.在两大法系相互借鉴和融合中,专家兼具当事人证据方法和法官辅助人的角色.我国鉴定制度带有浓厚的职权主义色彩,鉴定人在诉讼中扮演着“专门性问题法官”的角色.我国应借鉴德国和日本的做法,将鉴定人定位为法官的辅助人兼当事人的证据方法,从厘清鉴定启动权、鉴定实施权、鉴定意见审查权的性质及相互关系入手,完善我国司法鉴定制度.

On the Role of Experts in Forensic Appraisal

As a ＂carrier＂ of science,technology or other special knowledge,functions of experts is more and more extensive in litigation.Because of the difference of the litigation mode,experts have different role in solving special problems.In the adversarial system,experts act as the evidence method of litigants and in the inquisitorial system,experts are regarded as the assessor of the judge.With the combination of the two legal systems,experts act as the litigant’s evidence method as well as the judge’s assessor.The forensic appraisal system in our country has been enrooted with inquisitorial doctrine,experts act as the judge of special problems.We should learn from the practice of Germany and Japan,and position the experts as the assessor of judges as well as evidence method of litigants.We should improve the forensic appraisal system by making clear the nature and relationship between the right to start the appraisal,the right to carry out the appraisal,and the right to examine the appraisal opinion.