我国专家辅助人制度创新的实用主义及立法的模糊立场——基于司法实践的一种理论展开

专家辅助人作为源于司法实践的创新制度,历经了最高人民法院规范性文件的认可以及法律上的确认,逐渐成长为一项正式的诉讼制度。然因司法机关相关答复、解释的误释与误导,不仅理论上难以自洽,而且司法实践中也各行其是,以至于影响了该制度的规范性运行。2012年修改的《刑事诉讼法》和《民事诉讼法》对此的规定又因其模糊的立场再度导致司法实践对其与专家证人关系纠缠不清,应当从理论上澄清立法的模糊立场、摆脱司法实践的非制度化扩张,避免对专家证人的盲目效仿,同时还应厘清专家辅助人的中国模式。

The Pragmatism and Ambiguous Legislative Stance of the Expert Assistant System Innovation --A Theoretical Analysis based on Judicial Practice

Expert assistant innovation originates from judicial practice. Through normative documents approved by the Supreme People＇s Court, as well as recognition by law, it has grown into a formal lawsuit system. However, because of some relevant misinterpretation and misleading answers in judicial practice, it is not only difficult to be self-consistent in theory, but also faced inconsistent acts in judicial practice, which really affected the system＇s normative work. The ＂Criminal Procedure Law＂ and the ＂Civil Procedure Law＂ were revised in 2012, which had clearly defined expert assistant, but because of its ambiguity, once again it led to the tangled relationships with expert witness in judicial practice. We ought to clarify legislative ambiguous position, and get rid of the non-institutionalized expansion of judicial practice. At the same time, avoid following the terms of expert witnesses in foreign countries blindly. At last, we should form the Chinese mode of the expert assistant.