Research On The System Of Expert Witness

The expert witness is an actual implementer of the judicial expertise activity. The overall qualities of the expert witness influence the lawsuit and arbitration activity directly, and influence directly such vital interests as the parties' lives and properties. Therefore the expert witness system occupies a very important position in the whole judicial expertise system. However, the present expert witness system of China has a lot of defects. This thesis fully uses the research approach to compare through the analysis of the basic theories of expert witness, analyzes the relevant theories of expert witness in foreign countries, analyzes the current situations of the expert witness system of China, and then puts forward the conception of reconstructing the expert witness system in conformity with the conditions of our country. This thesis is divided into four chapters. The first chapter discusses the general introduction of expert witness system. First of all, the thesis explains the definition of expert witness system. The domestic scholars have different views about judicial expertise. The main differences lie in the range of judicial expertise. The author agrees that the range of judicial expertise is limited to the lawsuit and arbitration activity. The expert witness system is an organism of all rules and standards, which are relevant to expert witness. These rules and standards apply to the process from acquiring the qualification of expert witness to finishing the legal role of expert witness. Secondly, the thesis expounds the modes of expert witness system. The choice of the expert witness system mode is very important to construct the expert witness system. The empanelling of expert witness and the rights and obligations of expert witness have heavy relation to the choice of expert witness. According to the conditions of our country, the expert witness system mode of China should be orientated as the mode of continental law system. Thirdly, the thesis analyzes the legal status of expert witness. Most of the continental law system countries follow the doctrine of expertise right. The legal status of the expert witness is higher than that of the ordinary witness. The countries of Anglo-American law system follow the doctrine of expert witness. The expert witness is one kind of witnesses. The expert witness of our country is orientated as neutral participator in lawsuit. Finally, thesis classifies the expert witnesses. The second chapter discusses the investigation of expert witness system of Anglo-American law system and continental law system. First of all, the thesis evaluates and analyzes the expert witness system of the countries of Anglo-American law system. This part is divided into four respects concretely. Firstly, the expert witness qualification system of the countries of Anglo-American law system is an unfixed qualification system. The education can help greatly a person become an expert witness; however, the special skills or knowledge based on experience can enable he to become an expert witness. Meanwhile, the thesis summarizes that the qualification examination of the expert witness of those countries belongs to the ex post facto one; and it contains self-examinations and the opposing parties'examinations, which relies mainly on the latter one. Secondly, the empanelling of expert witness of Anglo-American law system mainly depends on the party. The thesis analyzes the advantages of this empanelling system that could arouse the enthusiasm of the party, improve the quality of authentication, and prevent the judges from being biased. The thesis also criticizes that this kind of empanelling system greatly wastes the manpower, financial resources and material resources, so as to cause long-time lawsuit and high-cost lawsuit. Although those countries attempt to make it remedied, the thesis shows pessimism attitude by quoting words of professor LANGBAN. Thirdly, the Anglo-American law system does not distinguish the expert witness and ordinary witness strictly. Rights of expert witness mainly include the right of expenses compensation, the right of refuse authentication, the right of justice protection, etc. About legalobligations of expert witness, the author agrees to Judge March Cresswell's summary on it. Fourthly, it is about the legal liabilities of the expert witness. When the expert witness has encroached on other people's right directly in the course of expertise, he or she should bear the civil compensation responsibility. The party empanels the expert witness. And the expert witness stipulates with the responsibilities that the party bears through the contract. The liabilities of the expert witness include: when the expert witness refuses to authenticate, the court can sentence him or her as contempt of court; when the expert witness perjuries, the court can sentence him or her as perjury etc. Then, on the qualification system of expert witness in civil law system, the thesis takes four parts to investigate. Through the analysis of the system of Germany and Japanese legal medical expert, the thesis draws a conclusion that civil law system has strict demands to the expert witness qualification. Through comparing legislation regulations of Germany, Japan, France, Italy, and Taiwan Province, the thesis summarizes that in civil law system, the qualification of expert witness examination right is awarded to the organizations which have the right to authenticate, or confirm organ, judge or other department law officers who is responsible for handling the case of expert witness qualification list. And that the empanelling of expert witness is basically trusted to judicial officer. And that the liabilities between the expert witness and the party mainly depend on whether the expert witness's tort or not. And that the nature of liabilities that the expert witness bears for the court, is mainly a judicial administrative liabilities, of which is serious can compose criminal liabilities. The third chapter discusses the history and current situations of expert witness system of China. This thesis first briefly narrates the history of the expert witness system of China from Shang and Zhou Dynasties to Qin and Han Dynasties from Tang and Song Dynasties to Ming and Qing Dynasties and then to the latter stage of Qing Dynasty. And then it introduces the achievement that the expert witness system of China has made since October 1,1949. The thesis mainly analyzes the deficiency of our country's current expert witness system: First, the expert witness qualification, which is abstract in the legal provisions, and lack a concrete admittance standard; Second, the right of empanelling the expert witness is totally monopolized by the judicial authority; Third, it is nearly the blank about the rights and obligations of the expert witness in the current laws; Fourth, the regulation of the legal liability to the expert witness in the current law of our country is too abstract and unconsummated. The fourth chapter discusses the conception of improving expert witness system of China. It is divided into four respects. Firstly, the improvement of qualification system of expert witness of China, including setting up the unified expert witness qualifying examination system, operating qualification system, registering system and qualification censorship. Secondly, the improvement of empanelling system of expert witness of China mainly concludes entitling the both parties to empanel the expert witness according to agreements. Thirdly, the entitlement of expert witness shall be paid and provid the expert conclusion independently; the right of the judicial protection, refusal to expertise, apprisement of whether the expert conclusion is admissible, and cooperation with the persons of other professions. On improving the legislation on the obligations of the expert witness, the thesis emphasizes on the obligations of testifying in court and legal aids of the expert witness, and analyses the cause of the expert witness's absence in court. What's more, it proposes four suggestions of improving the system of the expert witness appearing in court. Experienced on the author's exercitation at Changchun Legal Aid Center, the author expatiates the blueprint of improving the obligation system of legal aids from three aspects. Fourthly, it discusses about the improvement of legal liabilities of expert witness in China. In future, the criminal liabilities of expert witness should includes crime of perjury, crime of destroy evidences and deliberate offence against the official secrets. The author oppugns the clause 305 of the term of Criminal Law. And...