On The Status Quo And Restructuring Of China Judicial Expertise Procedures

Judicial expertise procedures constitutes one important part of judicial expertise system. Procedure law is to ensure the realization of substantial law. At the same time, procedures has its own independent value. As legal procedures ,judicial expertise procedures is regulated and directed by civil procedural law, criminal procedural law and administrative law. The core of it is to discover the true fact and legitimization of means .To protect human rights, it should be based on the philosophy of procedure justification. There are a lot of problems in the existing system of judicial expertise procedures, and now it's urgent to reform it. The reform should not be focusing on some concrete measures, but on reorganization of the whole structure of the system. Based on the foundation of procedure justification, this article explores some ideas on the restructuring of China judicial expertise procedures.Except for introduction, this article consists of four parts, in total 40,000 words.In introduction, I explains the background of judicial expertise procedure, writing train of thoughts and main opinions of this article.Chapter one the outline of judicial expertise proceduresIn section one, I discuss the definition and content of judicial expertise procedure. Starting from the definition of judicial expertise, I put forward my opinion and reason after introducing and assessing some opinions of judicial expertise procedure among the research circles. Judicial expertise procedures consists of starting procedure, implementation procedure and interrogating procedure. In section two, I discuss the characters and elements of judicial expertise procedure. It has characters of legality, science, activity and objective. Its elements are procedure subject, subject activity, seasons of activity, content of procedure legal relationships and outcome of procedure.Chapter two review of foreign judicial expertise procedureWe can learn something from foreign relative systems. This chapter consists of three sections, introducing and appraising the starting procedure, implementation procedure and interrogating procedure of both common law and civil law countries.Chapter three the status quo and defects of China judicial expertise procedureThis chapter consists of three sections, introducing the status quo and defects of the starting procedure, implementation procedure and interrogating procedure of judicial expertise procedures respectively.Chapter four ideas concerning restructuring of China judicial expertise proceduresSection one establishing the philosophy of procedure justiceThe philosophy of procedure justice originated in U.K., and was inherited and developed by U.S law. To realize the justice of legal procedure, the only thing to do is to improve inherent excellent characters of procedure. In this way, the whole process of forming legal decisions conforms to well-known standards and measures. Generally people call this value procedural justice or procedural fairness which symbolize the inherent excellent character of legal procedure. The value of procedural fairness has three basic principles:(1)neutrality of judge;(2)participating of all parties;(3)openness of procedure. Judicial expertise procedure is one kind of legal procedure. It should be based on the philosophy of procedural justice, and conforms to the three basic principles of procedural justice. What the three basic principles of procedural justice is embodied in judicial expertise procedure are:(1)neutrality of judicial expertise institution and judicial appraiser;(2)full participating of judicial expertise parties;(3)openness of judicial expertise procedure.Section two restructuring China judicial expertise procedure Firstly, restructuring starting procedure of judicial expertise. The ideal pattern should give priorities to the pattern of starting-by-judge, and put the pattern of starting-by-parties in the second place. It's needed to perfect the right of parties to apply for expertise, and to perfect the right of parties to choose expertise institution and appraiser. Secondly, restructuring implementation procedure of judicial expertise. Judicial expertise institution and judicial appraiser should be neutral. Before expertise all parties have the right to know requiring information of judicial expertise institution and judicial appraiser. During the execution of expertise, parties have the right to be on the scene and have the right to declare opinions. The process of judicial expertise should be open. Thirdly, restructuring interrogating procedure. It's needed to establish opening procedure of expertise conclusions so that the disputes of parties against expertise conclusions can be resolved before going to court. Expertise conclusions should be interrogated on court. It's needed to establish measures to safeguard judicial expertise performer to be present in court when requested and to prefect some measures concerning manners and contents of interrogating against expertise conclusions. Whether the judge accepts the expertise conclusions or not and the explanation should be open. Lastly, setting up system of assistant expertise performer. The system of assistant expertise performer has important meanings. Assistant expertise performers should be those who have some special knowledge or technical. It doesn't matter whether he have the qualification of judicial expertise performer or not. The number of assistant expertise performers which all parties retain shouldn't be more than that of judicial expertise performers. Assistant expertise performer should enjoy certain rights and burden certain obligations, and should be defined as one kind of independent litigation participants.