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A Research Into The Expert Conclusion

Posted on:2007-08-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:H GuoFull Text:PDF
GTID:1116360182991381Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
With the social development, technological progress and the elaboration of professional labor division, the expert conclusion, an independent category of evidence, has a significantly increasing influence on fact finding. Legal proceedings rely more and more on the specialized knowledge, experience and skills of the expert (expert witness) for the purpose of finding the facts. However, it is legally worried that too much independence on the expert conclusion may result in the hazard that the expert witness might, on behalf of the case hearer, find the facts. Therefore, the establishment of a scientific and rational procedure on the expert witness has become an burning issue of modern legislation and judicial administration.This dissertation falls into eight parts. Starting from the research into the basic conception of the expert conclusion, it predicts the tendency of the expert conclusion on the basis of both the cause for the formation of the expert conclusion and its historical development. By means of expounding the evaluation starting procedure, the producing procedure of the expert conclusion, the confrontational procedure of the expert conclusion, the procedure of authentication of the expert conclusion, and the procedure of relief, referring to the successful experience of Western countries, and innovating China's current procedure of the expert conclusion, the writer puts forward his suggestions on the perfection of the procedure on the expert conclusion, and gives constructive ideas on the legislation of judicial evaluation and the amendment to the procedural laws.Chapter Ⅰ : Introduction. Using the categories of evaluation, the expert witness and the expert conclusion as a logical link, this chapter, based on the legislative expression of evaluation, as well as the writer's assessment of such academic views as the evaluation serving as an investigation, the evaluation acting as evidence verification, and the evaluation being a scientific activity, defines the evaluation as an "evidence investigation." Viewing the expert witness as an assistant of the judge and investigator of evidence, the writer analyzes the causes for the neutrality and opposition of the role by the expert witness, and foresees the tendency for the expert witness to be transformed from the assistant of the judge to the investigator ofevidence. With a view to the defect of the expression in the concept of the expert conclusion, the writer puts forward the legislative concept of "the expert witness' opinion." The tense relationship between the fact hearer's inability in specialized matters and his or her capability authorized by the law, and the measurement of the value and cost of the rules on the burden of proof and the system of evaluation to be introduced, infer the reason for the expert conclusion to be used as an independent category of evidence, offer a theoretical reason to remove the burden of proof and seek the expert conclusion, and further explain the significance of the research into this issue in legislation, judicial administration, and the reform of the system of judicial evaluation.Chapter II: The evaluation of the expert conclusion. This chapter reviews in retrospect the history of the expert conclusion, which derived from the witness' testimony and gradually segregated with it, along with the process of the integration before the separation of the expert conclusion from the transcript of inspection and examination, and probes into the evolution of the expert conclusion as independent evidence. After being enacted as an independent category of evidence, the expert conclusion brought about such academic disputes on account of its derivation as affirmative, negative and reformative alternatives. The writer demonstrates the necessity of treating the expert conclusion as an independent category of evidence and introducing the expert witness, and, on the basis of the positive analysis of the evaluation, forecasts the tendency of the revivification of the witness' testimony by the expansion of the evaluation.Chapter III: The nature of the expert conclusion. This chapter analyzes the elements for the admissibility of the expert conclusion (expert's testimony) from the two law systems. In particular, the writer gives a detailed explanation of the expert's testimony of the Anglo-Saxon Law System—the transformation from the general rule of acceptance to the rule of relevancy, the establishment of the standard of comprehensive judgment, the limitation of power abuse, and the theoretical demonstration of how technology is to be judicially accepted. In addition, the writer analyzes the defects of the admissibility of China's expert conclusion, and designs the admissibility of China's expert conclusion. After the research into the elements for the competency of the expert conclusion (expert's testimony) from the two law systems, the writer suggests establishing the elements for the competency of China's expert conclusion in line with the reliable basic elements and the elements of effectiverelations.Chapter IV: The starting procedure of the expert conclusion. A probe into the starting procedures of the expert conclusion (expert's testimony) of the two law systems shows that the starting procedure of the expert conclusion dominated by the judicial official in the Continental Law System is gradually loosened while the procedure of the expert's testimony being started by the litigating party in the Anglo-Saxon Law System is properly controlled by the court step by step. The reforms of the two law systems, though in converse directions, reach the same goal by different routes. Based on the analysis of the disadvantages of China's starting procedure of the expert conclusion, the roots of the right to a lawsuit, foreign experience, as well as the legal idea of equality and justice, the writer establishes the scope of the procedure of the expert conclusion started by the litigation party, and, from the angle of neutrality and objectivity, modifies the extent of the power of the judge who exercises his or her discretion in starting the procedure of the expert conclusion. The writer gives the idea of the scope of evaluation being stipulated by the law, the procedure of evaluation being first started by the litigating party before being started anew by the judge.Chapter V: The procedure of producing the expert conclusion. Based on the perfection of the procedures of evaluation authorization and acceptance, and the evaluation material supplementation, the writer suggests the measures on the continuity and security to guarantee the quality of the expert conclusion, and relevant supervision procedures to pursue the quality of the expert conclusion at the root. In the concrete evaluation procedure, the writer clarifies the relationship between the expert witness and the consignor, who supervises the expert witness, and the relationship between the expert witness and his or her assistant, establishes the system by which the assistant shall give an explanation of the expert conclusion, and makes a rational arrangement for the time and place of the evaluation. Considering that the formulation of the expert conclusion reflects its quality, the writer takes the expert witness' oral explanation and written material as an integral part of the expert conclusion, and, after an analysis of the defects for the expert witness' different opinions to be an auxiliary part of the expert conclusion, suggests that the expert conclusion should be separated from different opinions of the expert witnesses.Chapter VI: The confrontational procedure of the expert conclusion. On the theoretical basis of the confrontational procedure of the expert conclusion of the twolaw systems, the writer analyzes the reasons for the Continental Law System to establish the pre-trial procedure, and probes into the advantages of the confrontation by the expert testimony in the Anglo-Saxon Law System and the hazard arising from the abuse of the confrontation by the expert testimony. After an analysis of China's current confrontational procedure of the expert conclusion, the writer suggests the pre-trial procedure of the expert conclusion, the expert witness' appearance in court, the re-establishment of the system of cross-examination, and an introduction to the expert witness, on the basis of all of which, China's confrontational procedure of the expert conclusion shall be re-established.Chapter YD: The procedure of the authentication of the expert conclusion. Based on the theory of the authentication of the expert conclusion, this chapter expatiates the tense relationship between the "theory of experience restoration" and the "basic doctrine," analyzes the theoretical disputes on the freedom, limitation and eclecticism related to the authentication of the expert conclusion, and puts forward the "theory of basic restoration," which fills in the theoretical blank of the authentication of the expert conclusion. Based on the analysis of the foreign modes of the procedures of "dualistic" and "monistic" authentication of the expert conclusion, the writer designs the procedure of the authentication of China's expert conclusion, whose admissibility and competence shall be chiefly accepted step by step, with the combined authentication of the expert conclusion to be treated as an auxiliary approach. Also, the writer gives the rules for the admissibility, existence, non-existence, or intensity of the expert conclusion, along with the specific suggestions on the alternatives of the disputed expert conclusion.Chapter VBI: The procedure of the relief of the expert conclusion. This procedure is categorized into the procedure of re-evaluation, and the procedure of humans rights relief. On the premise of the theoretical basis of the re-evaluation procedure and the two approaches to relief, the writer gives specific ideas on how to re-mould the procedure of supplementary evaluation and the procedure of re-evaluation. Besides, the writer, according to the theory on the procedure of human rights relief, builds the procedure of the human rights relief related to the production of the expert conclusion, and the procedure of the human rights relief after the publicity of the expert conclusion.
Keywords/Search Tags:evaluation, expert witness, expert conclusion
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