First, the motivation for the reform of the judicial expertise system
The judicial expertise system in China has experienced a development process from monism to pluralism. Before the reform and opening up, appraisal can only be used for investigation, and only public security organs have the right to set up appraisal institutions. This typical unified assessment system was suitable for the political and economic situation at that time. At the beginning of the reform and opening up, with the promulgation of the Criminal Procedure Law, the Civil Procedure Law and the Administrative Procedure Law, in addition to the public security organs, people's procuratorates and people's courts have also set up their own appraisal institutions to undertake the appraisal tasks in litigation activities. With the continuous development of social economy, the number of civil and economic cases is increasing, and the litigants' demand for identification is increasing. In criminal proceedings, the parties sometimes have doubts about the appraisal conclusions of public security and judicial organs, and hope to entrust an appraiser to conduct the appraisal by himself; In non-litigation activities such as arbitration, notarization and administrative law enforcement, it is sometimes necessary to seek the services of appraisal institutions. As a result, an appraisal institution facing the society and not subordinate to the public, procuratorial and legal departments came into being. Therefore, the unified evaluation system has become a diversified evaluation system.
At present, the main problems existing in the diversified appraisal system are: the establishment of appraisal institutions within the public, procuratorial and legal departments has formed a situation of self-examination, self-examination and self-examination, and the objectivity and impartiality of appraisal conclusions have been questioned; Appraisal institutions that provide services to the society are mixed, lacking unified market access standards and rules, and it is difficult for parties to obtain reliable appraisal services; The existence of multi-party appraisal, repeated appraisal and false appraisal not only leads to the dispersion and waste of litigation resources, but also brings many troubles to the trial activities of the people's courts. This situation makes the legitimate rights and interests of the parties in litigation activities can not be properly safeguarded, and also affects the final realization of judicial justice. This is the external motive force for the urgent reform of China's judicial expertise system.
In addition to the external motivation, the reform of China's judicial expertise system also has internal motivation, that is, the contradiction between the increasing status of expert conclusion in litigation activities and the relative backwardness of the current judicial expertise system.
In litigation activities, with the change of judicial proof methods, expert conclusion plays an increasingly important role. Taking criminal justice as an example, the way of proof has changed from "divine testimony" to "witness" and from "witness" to "material evidence". Since the establishment of the evidence adjudication system, witnesses have always been regarded as an important means of criminal proof, but with the development of society, the status of witnesses is declining, and at the same time, the status of physical evidence is gradually rising. The reasons for the decline in the status of witnesses are as follows: First, due to the abolition of the method of extorting confessions by torture and the guarantee of the voluntariness of the defendant's confession, criminal proof can no longer take obtaining the defendant's confession as the main means, and the confession has lost its position as the "king of evidence"; Secondly, due to the transformation from agricultural society to industrial society and then to information society, the contact between people has become more and more loose, and criminal acts have become more and more secretive, which has made it more difficult to obtain witness testimony in criminal justice. In addition, the development of science and technology has promoted the role of material evidence, which has become a dominant means of proof in some developed countries. [1] In the proof based on "material evidence", the proof value of material evidence often needs to be revealed by scientific and technological means. In addition, the judgment of the authenticity of witnesses sometimes needs the help of psychological science, behavioral science and other scientific methods. Some scholars said: "Today's criminal trial should not only pay attention to confession, but also pay attention to material evidence, especially the material evidence obtained through legal evidence, that is, scientific evidence. Therefore, the so-called evidence referee doctrine should be changed to scientific evidence referee doctrine in today's era of legal application. " [2] In civil and administrative litigation activities, the content of scientific and technological knowledge is also increasing obviously, such as environmental pollution, medical disputes, food quality, patent disputes and other cases, which are typical examples.
The application of high-tech knowledge puts forward new problems for judges to examine and judge evidence. When scientific knowledge, scientific methods, scientific effects and other terms flood the court trial, judicial proof is no longer a simple factual judgment and a simple legal application. The uncertainty of science and pseudoscience are problems that judges often face when examining and judging evidence. The identification of "scientific evidence" and "pseudoscience" has gone beyond the scope of traditional judge skills. [3] Therefore, they have to turn to experts for analysis and judgment. In this sense, experts are regarded as "scientific judges", and the importance of experts and their expert conclusions in judicial activities is self-evident.
The status and role of expert conclusion in litigation activities are increasingly prominent, but the current judicial expertise system is difficult to meet the practical needs. This is mainly manifested in the following aspects: first, the lawsuit relies too much on judicial expertise, which is difficult to rely on because of the current situation of judicial expertise institutions and appraisers in China; Second, China has strengthened the participation of the parties in litigation activities through the reform of trial methods, but the judicial expertise system has not been adjusted accordingly, which has suppressed the litigation needs of the parties; Third, all kinds of problems in judicial expertise, such as false identification, multi-party identification and repeated identification, are directly or indirectly handed over to judges, who are often in an embarrassing position when dealing with these problems; Fourth, China's three major procedural laws have provisions on judicial expertise, but they are generally too brief. Some of these provisions, such as the public security and judicial organs monopolizing the right to start judicial expertise, allowing the expert conclusion to be provided in the name of the appraisal department, and allowing the expert to appear in court instead of reading the expert conclusion, have produced many drawbacks in practice. The above problems come down to one point: it is difficult for the current judicial expertise system to guarantee the objectivity, impartiality, scientificity and reliability of the appraisal conclusion, which in turn affects the acceptability of judicial decisions. Therefore, it is necessary to reform the judicial expertise system, eliminate or alleviate the practical contradictions faced in judicial activities, promote the good use of scientific and technological proof methods, and enhance the acceptability of judicial decisions.
Two. Establishment and management of judicial authentication institutions
Because of the variety of specialized issues involved in litigation, it is difficult to clearly define the scope of judicial expertise. Common types in judicial practice include forensic pathology appraisal, forensic clinical appraisal, forensic psychosis appraisal, forensic material evidence appraisal, forensic poison appraisal, document appraisal, trace appraisal and trace material evidence appraisal. [4] Judicial authentication institutions are mainly engaged in the above-mentioned authentication business.
The establishment and management of judicial authentication institutions mainly involve two aspects: one is the ownership of judicial authentication institutions, and the other is the qualification control of judicial authentication institutions. The former is related to the independence and neutrality of judicial expertise, while the latter is related to the scientificity and reliability of judicial expertise.
The existing judicial authentication institutions in China can be roughly divided into two categories: one is the authentication institutions affiliated to the public, procuratorial and legal departments, and the other is the authentication institutions that provide services to the society. The main problem of the former is the lack of neutrality of appraisal institutions, and the public, procuratorial and legal organs assign or hire appraisers belonging to their own departments to conduct appraisal in their respective litigation stages, which is easy to cause black-box operation on judicial appraisal issues; The main problem of the latter is the lack of effective management of appraisal institutions, and it is easy to issue appraisal conclusions at will, but it is difficult to investigate the responsibility afterwards. Therefore, for the former, it is mainly to weaken its official color; For the latter, it is mainly to strengthen the control of its qualifications. The following measures can be taken specifically: First, the establishment of a judicial authentication institution must be approved by the judicial administrative department at or above the provincial level. This includes not only judicial authentication institutions that provide services to the society, but also judicial authentication institutions that are subordinate to the public, procuratorial and legal departments. This is conducive to the unified and standardized management of judicial authentication institutions and avoids problems in the qualifications of judicial authentication institutions. The second is to separate the existing internal appraisal institutions of the public, procuratorial and legal departments and manage them by the national judicial administrative department. This will help to ensure the independence and neutrality of judicial expertise institutions. Third, the establishment of judicial authentication institutions must meet certain conditions. These conditions are necessary to carry out forensic identification, such as residence, equipment, funds, professionals and so on. When approving the establishment of a judicial authentication institution, the competent department shall strictly examine the above conditions to prevent authentication institutions that do not have the basic conditions from engaging in authentication business. Judicial expertise requires higher identification equipment and instruments, and the competent authorities should conduct strict examination when approving the establishment of judicial expertise institutions. Fourthly, the establishment of judicial authentication institutions can be divided into two ways: application for establishment and direct establishment. The former is aimed at judicial authentication institutions that provide services to the society; The latter is aimed at the judicial authentication institutions established within the public, procuratorial and legal departments. With regard to the latter, the author's basic idea is: through the direct establishment of judicial authentication institutions by the judicial administrative department, the authentication institutions established within the public, procuratorial and legal departments will be independent, and the judicial administrative department will reorganize and establish a unified judicial authentication center from the central to the local. The center can set up an agency within the investigation organ to identify some special problems in the investigation activities in time, but the agency is decoupled from the investigation organ in terms of administrative leadership, establishment, salary and welfare. In addition, considering the timeliness of investigation activities, the investigation organ may set up technical investigators. These people are not experts, but "expert assistants" who assist in investigation and prosecution. The technical opinions provided by these personnel can only be used as records of inquests and inspections, and their effectiveness is different from the appraisal conclusions made by judicial appraisal institutions.
Through the above reform, it is helpful to establish the neutral image of judicial authentication institutions, enhance the credibility of authentication conclusions and the authority of judgments based on authentication conclusions. At the same time, it is also a useful reference for other countries. Judging from the available information, the United States, Britain, Australia and other countries do not have appraisal institutions directly under the judicial department. In these countries, criminal investigation laboratories, judicial science laboratories and other institutions are independent and neutral, and they serve the judicial departments by accepting entrustment. [5]
For the established judicial authentication institutions, there are still follow-up management problems. The national judicial administrative department can conduct management through annual inspection and announcement. The annual inspection can be once a year or once every two years. The national judicial administrative department and the judicial appraiser association organize experts to evaluate the personnel composition, academic achievements, quantity and quality of instruments and equipment, internal management system, technical standards and technical content of judicial appraisers, and announce them to the public, so as to strengthen the self-discipline awareness of judicial appraisers and urge them to continuously strengthen their own construction, thus ensuring the quality of judicial appraisers from the system.
Third, the qualification control of judicial appraisers.
Because judicial expertise is to identify the specialized issues involved in litigation, it requires appraisers to have corresponding professional knowledge or skills. In common law countries, appraisers are called "expert witnesses". The expert level of appraisers is the key factor to ensure the scientific and authoritative appraisal conclusion.
Common law countries and civil law countries have different ways to detect and control the qualification of appraisers.
Common law countries generally adopt the practice of "court control". There is no special provision in the law about who can be an expert witness. In principle, anyone who "has received scientific education in this discipline" or "has mastered special or proprietary knowledge gained from practice" [6] can be used as an appraiser. Article 702 of the United States Federal Rules of Evidence stipulates: "If science, technology or other professional knowledge helps the fact judge to understand the evidence or adjudicate the disputed facts, witnesses who are qualified as experts by virtue of knowledge, skills, experience, training or education may testify in opinions or other forms." Whether an appraiser has the ability to provide authoritative testimony on a scientific or technical issue should be examined in court, which is called the identification of "witness qualification" in litigation. [7] Under normal circumstances, any expert witness put forward by the prosecution and the defense must be asked by the summoner about the expert's expertise, experience or technical level before giving his expert opinion, and the other party can also ask questions and express doubts. The examination of the qualifications of the appraisers by both parties can sometimes be carried out by asking about their education level, academic level, personal accomplishment, and experience of wrong appraisal. Both the prosecution and the defense can also directly request the exclusion of expert witnesses. Of course, it is the judge who ultimately decides whether an expert witness can become an expert witness, not the prosecution and the defense.
Different from common law countries, civil law countries generally adopt "pre-trial control" and establish a special expert qualification system. For example, France and Italy have established a roster system of appraisers. Through specific identification and registration procedures, specialized agencies register experts with judicial expertise nationwide by industry, indicating their academic qualifications, academic achievements, professional experience and other contents, so that judges can select appraisers from the roster according to the needs of cases. [8] Because the litigation activities involve a wide range of professional knowledge, it is impossible for the roster of appraisers to include all the appraisers needed for litigation. Therefore, France, Italy and other countries have established the expert roster system, but they still allow judges to appoint experts from experts who have never registered on the roster. [9]
There is no clear regulation on who can be an expert witness in China. As long as it is appointed or hired by the public, procuratorial and legal departments, in principle, anyone with specialized knowledge and experience can serve as an appraiser. In practice, there are mainly the following kinds of appraisers: first, the personnel of appraisal institutions established within the public, procuratorial and legal departments; Second, professionals of research institutions who have been granted the qualification of judicial expertise by the state judicial administrative organs; Third, professionals from other professional institutions (such as hospitals, research institutes, universities, etc.). ). In terms of appraiser qualification, China is different from both common law countries and civil law countries. On the surface, China has stricter requirements for the qualification of appraisers than countries in the common law system, but in fact, it is inevitable that appraisers have a higher professional and technical level when the public, procuratorial and legal departments independently decide the appraisal matters. At the same time, because the appraisers generally do not appear in court, their qualifications can not be reviewed by both the prosecution and the defense and the court. Compared with France, Italy and other countries, China's appraisers lack the necessary qualification examination and assessment, the appraiser roster system has not been established, and the designated appraisal or entrusted appraisal is arbitrary. On the whole, the appraisers in China are in a state of no distinction between good and bad, and the professionalization of appraisers is far from being formed.
There are two ways to reform the current expert witness qualification system in China: one is to learn from the practice of common law countries and adopt the "free expert witness" system, and the court will examine whether the expert witness is qualified; The other is to learn from the practice of civil law countries, make efforts in the access of appraisers, and establish a special roster system of appraisers.
The author believes that the latter method is more feasible from the current situation in China. The main reasons are: first, compared with the former method, the latter method is simpler. Although there are various problems that need to be identified in litigation, the common ones are forensic identification, material evidence technical identification, judicial psychiatric identification and so on. If pre-trial control is carried out on the qualifications of appraisers in these fields, the occurrence of repeated appraisal and multi-head appraisal can be reduced to a certain extent, and the workload of people's courts can be reduced. Second, despite the reform of the trial mode in China, the current litigation mode is still full of authoritarianism, and it is difficult to completely transplant the confrontational trial mode in common law countries to China, that is, it is difficult to transplant the "free appraiser" system in common law countries to China. Under the system of "free expert", the control of expert qualification depends on the examination of both the prosecution and the defense and the judgment of the judge. However, in China, lawyers participate in less than 50% of cases, and [10] the defense's ability to examine the qualifications of experts is obviously insufficient, so it is difficult to completely change the problem of low overall quality of judges in a short period of time. Therefore, it is difficult to control the qualification of appraisers through court review. Thirdly, the methods adopted by common law countries and civil law countries in controlling the qualification of appraisers generally correspond to their litigation modes, but this does not mean that if China adopts the trial mode of combining prosecution with defense, it must adopt the "free appraiser" system of common law countries. 1988, Italy transplanted the adversarial trial mode on the basis of the original authoritarianism, but still ensured the appraisal quality by establishing the appraiser roster system. Australia, a country belonging to the Anglo-American legal system, also implements qualification licensing management for judicial appraisers, and conducts appraisal every two years, and only those who pass the examination can register and issue certificates. [1 1] The above situation shows that China can learn from some practices of the judicial expertise system in civil law countries, establish its own professional qualification and practice certificate system of judicial appraisers, and ensure the qualification of appraisers through pre-trial control.
Fourth, the right to initiate judicial expertise
Due to the different litigation modes adopted, the starting modes of judicial expertise in common law countries and civil law countries are also different.
Common law countries implement the litigant litigation mode, and the litigation procedure is promoted by both parties themselves. Whether a case needs expert appraisal is generally decided by both parties themselves, that is, both parties have equal rights to initiate judicial appraisal. [12] At the same time, "the court may appoint any expert witness with the consent of the parties, or it may appoint an expert witness according to its own choice". [13] this is done to make up for the deficiency of the system of entrusted appraisal by the parties. Because the expert matters are completely decided by both parties and the appraisers are appointed by both parties, it is easy to cause the appraisers to lose their neutrality and objectivity, and the appraisal conclusion is easy to serve only the needs of both parties.
The civil law countries implement ex officio litigation mode. Appraisal is regarded as an activity to help judges discover the truth and realize justice, and is regarded as a part of judicial power. Therefore, the decision-making power of judicial expertise is exercised by judicial personnel. For example, Article 156 of the French Criminal Procedure Law stipulates: "When there are technical problems in the case, any pre-trial judge or trial judge may order an appraisal according to the requirements of the procuratorate, or according to his own authority, or according to the requirements of one party." Articles 73 and 83 of the German Criminal Procedure Law stipulate that judges have the right to decide to evaluate specific matters. If it is found that the appraiser's appraisal is insufficient, it may also require the original appraiser or entrust other appraisers to re-appraise. [14] If both the prosecution and the defense think that the case needs expert appraisal, they can make a request to the judge, and the judicial police and procuratorial organs do not have the direct decision-making power to conduct judicial appraisal.
In Italy, which adopts the mixed litigation mode, when it is necessary to investigate or obtain materials or opinions with the help of specialized technical, scientific or technical capabilities, the judge can designate qualified appraisers to conduct appraisal, and decide the number of appraisers and other matters related to appraisal. [15] In case the judge has not made an appraisal decision, each party may designate its own technical consultant; After the judge decides to make an evaluation, the public prosecutor and the parties have the right to appoint their own technical consultants. [16] In Japan, as can be seen from the provisions of Articles 165, 179, 223 and 224 of the Criminal Procedure Law, the court can order knowledgeable and experienced people to make an appraisal, and when it is necessary for prosecutors, prosecutors or judicial police staff to conduct criminal investigation, they can ask criminal suspects. If the defendant, criminal suspect or defender fails to preserve the evidence first, which will make it difficult to use the evidence, he may request a judge to make an appraisal before the first public trial. [17] It can be seen that in Italy and Japan, the decision-making power of appraisal is mainly exercised by the court. Regarding the rights of the prosecution and the defense in the appraisal, Italy has adopted the practice of allowing them to hire technical consultants, while Japan has given the plaintiff limited right to start the appraisal, while the defense only has the right to apply for the appraisal.
Common law countries and civil law countries adopt different start-up modes of identification, which is not only related to the litigation mode they adopt, but also related to their positioning of appraisers. In common law countries, appraisers are regarded as witnesses, while in civil law countries, the neutral position of appraisers is emphasized. For example, "the German litigation system understands the nature of the appraiser as a judge's assistant, so it requires the appraiser to remain neutral to both parties." [18] In criminal proceedings in common law countries, both sides of defense have equal rights to get expert help, but in practice, many factors restrict the exercise of defense rights: First, many defendants are poor and lack the financial resources to hire their own experts; Second, it is often difficult for the defense to obtain relevant materials for identification; Thirdly, from the source of experts, it is easy for the prosecution to hire experts from national laboratories and other institutions, while the defender can only turn to social appraisal institutions. Therefore, the development of the professional appraiser market has affected the exercise of the defense's entrusted appraisal right. In short, due to the serious inequality of resources between the prosecution and the defense, the defense's ability to get expert help is obviously weaker than that of the prosecution. Therefore, in the United States, the law also stipulates the power of the court to appoint expert witnesses. Comparatively speaking, civil law countries emphasize the defendant's right to apply for re-appraisal. Once the neutrality of the appraiser and the reliability of the appraisal conclusion are questioned, the defense can ask the court to re-appraise. "The defendant proposed a re-appraisal, and the police, prosecutors and judges should allow it whenever possible." [19] Some civil law countries, such as the Netherlands, have given the defendant the right to get expert help independently. If the defense's application for the prosecutor to summon experts is rejected, the defense can hire experts on its own. [20]
At the end of 1970s, referring to the model of the Soviet Union and civil law countries, China adopted the system of entrusting judicial appraisers, which is embodied as follows: in civil and administrative proceedings, appraisers are entrusted or appointed by the people's courts; In criminal proceedings, the appraiser is appointed or hired by the public security and judicial organs, and the parties may apply for supplementary appraisal or re-appraisal, but the decision is made by the public security and judicial organs. In line with this appraisal system, the public, procuratorial and legal departments have established their own appraisal institutions to embody the principle of convenience. This evaluation system has a strong authoritarianism color. Especially in criminal proceedings, the public, procuratorial and legal organs have equal decision-making power on appraisal, which is also different from the practice that the decision-making power of appraisal in civil law countries is mainly exercised by courts. At the end of the 20th century and the beginning of the 20th century, in order to adapt to the changes of the times, our country carried out the reform of trial mode, and absorbed some factors of the adversary system in the Anglo-American legal system. The increase of antagonism in the trial makes the parties demand to hire their own appraisers. In addition, the existence of judicial injustice and judicial corruption makes the parties' trust in the expert conclusions made by the public security and judicial organs decline, which further stimulates the demand of the parties to find experts outside the public security and judicial organs. However, according to the provisions of China's three major procedural laws, the parties have no right to entrust an appraiser by themselves. Even if they have great objections to the "official" appraisers and their appraisal conclusions, they can only passively accept the appraisal conclusions that have a significant impact on their own interests. This situation is difficult to adapt to the requirements of the new trial mode.
To reform China's current appraisal start-up system, we must first clarify the status of appraisers. The provisions of civil law countries and common law countries on the initiation system of appraisal show that the status of appraisers is twofold. On the one hand, as a person who gives opinions on matters involving science, he is regarded as an assistant and "scientific judge" of the court, and should help the fact judge understand the evidence or draw a factual conclusion with his scientific, technical or other professional knowledge, so as to remain neutral; On the other hand, due to the uncertainty of science itself and the complexity of the process of analyzing, identifying and judging expert matters, it is not uncommon for different experts to disagree on the same issue, which makes experts actually divided into prosecution and defense experts, similar to the division of ordinary witnesses. Therefore, expert witnesses are also called "expert witnesses". Both the International Covenant on Civil and Political Rights and the European Convention on Human Rights stipulate that a criminal defendant has the right to "have witnesses in his favor appear in court and be interrogated under the same conditions as witnesses against him". The right of cross-examination of criminal defendants stipulated here clearly points out that it includes cross-examination of appraisers.
China's three major procedural laws all give judges the power to start the appraisal procedure, which is consistent with the neutrality of appraisers and is also a common practice in all countries of the world. The crux of the matter is: Should China give both the prosecution and the defense the right to entrust expert witnesses? This involves the choice of authentication startup mode. There are roughly three schemes to reform the current judicial expertise start-up system in China: the first is to refer to the practices of France and Germany and give the people's court the right to decide on judicial expertise matters, instead of being independently enjoyed by the public, procuratorial and legal organs, and the prosecution and defense only have the right to apply for judicial expertise; The second is to learn from the practice of the United States and give both the prosecution and the defense the right to entrust appraisers equally. At the same time, the people's court has the right to appoint appraisers upon the application of the parties or ex officio; The third way is to learn from Italy. The people's court shall exercise the right to decide the appraisal, and both the prosecution and the defense may hire technical consultants on their own.
The author believes that the second scheme is more suitable from the current situation in China. The main reason is: (1) This scheme is relatively simple. Both the first and third schemes involve the overall transformation of China's current criminal procedure system. Because the decision-making power of appraisal matters is unified to the people's court, it is necessary to set up "pre-trial judge" in the people's court, similar to the "pre-trial judge" in France and Germany. Once the public security organs and procuratorial organs find something that needs to be appraised in the course of litigation, they should apply to the "examining judge" to start the appraisal procedure. Judging from the current appraisal system in China, public security organs and procuratorial organs have the right to appoint or hire appraisers, and the people's courts can also decide to conduct appraisal. According to the second scheme, the only thing that needs to be added is the right of the parties to entrust appraisers themselves. (2) Adopting the second scheme is in line with the spirit of China's trial reform. China's trial mode has gradually changed from interrogation in civil law countries to confrontation in common law countries. Accordingly, the equality and initiative of both the prosecution and the defense should be enhanced in the course of litigation. China's criminal procedure law gives the plaintiff the right to entrust expert witnesses, and what needs to be strengthened now is the defendant's right in this respect. The strengthening of the burden of proof of the parties in civil litigation requires giving them corresponding means of proof. In traffic accidents, environmental pollution, product quality damage, medical accidents, personal injury compensation and other cases. The specific claims of the parties often need to be based on the relevant appraisal conclusions. Therefore, it is necessary to change the practice that judges monopolize the right to start the appraisal and give the parties the right to entrust the appraisers themselves. (3) The adoption of the second scheme is conducive to strengthening the restriction of judges' power. The second scheme is to implement the appraisal system in which the prosecution and the defense are the main parties and the judge is the auxiliary. In the case of low quality of judges and serious judicial injustice in China, this will help to form certain restrictions on the exercise of judges' power.