On The Civil Judicial Identification

Nowadays, the question of judicial identification has become a matter of concern for the educational circles and the practical realm in China, and aroused the social widespread interest from all walks of life. After investigating its reason. We find it is the rapid change of social environment, that causes people to have different requests and anticipation with our present judicial identification system. Therefore, the author tries to, through a comparative analysis of the civil judicial identification systems of two legal systems , combined with our country's judicature practice, discuss the nature of the expert, the rights,obligations and responsibilities of the expert in China's civil judicial identification system,and the effect of the conclusion of identification and the discretional evaluation , wishing to contribute to the perfect of the civil judicial identification system in China.There are five parts besides the introduction and conclusion.The first chapter is the comparative analysis of the representative country's civil judicial identification systems of two legal systems. The author takes England and US as the representative countries of common law system, France and Germany as the representative countries of continental law system , researches on the division and the fusion of civil judicial identification systems in Western countries with advanced legal systems , and proves that between the expert witness and the expert there is more separation, one side is the expansion of the judge responsibility, the other the enhancement of the litigant responsibility.The second chapter through the brief description and evaluation of the civil judicial identification system's history and the present situation after the establishment of new China, indicates that in this social changes, our country's present strong authority type civil judicial identification system exposes more and more questions. At the same time, the legislation tendency and the viewpoints educational circle have given the author such an impression: The resistance -like expert witness system may be taken in overall as "a good medicine" , to correct each kind of malpractice in our country's present civil judicial identification system。The author holds a counter-opinion to this, considering that when corresponding research preparation is still insufficient, moves rashly, the prospect endures sorrow.In the third chapter, takes four dimensions of the real, the time, the cost and the litigant procedure controls as the parameter, comparatively analyzes the respective nature of the expert witness and the expert in the civil judicial identification system of two legal system , then unifies with our national condition, explores that under the socialist market economy legal framework, when constructing the civil judicial identification system with Chinese characteristics, when considering the expert nature positioning , we should take it as court auxiliary institution .The fourth chapter, before the identification procedure, in the identification procedure, and after the appraisal procedure, takes as the clue the bidirectional adjustments to the rights and obligations of the expert behavior by law, discusses the stipulations of the experts rights,obligations and responsibilities in our civil judicial identification system , reveals the insufficiency existing in our country , and gives the improvement views on our civil judicial identification system.In the fifth chapter, the author defines the term of the discretional evaluation in this thesis, and then explains that in the civil judicature practice of our country, because of the limitation of the present system and the scientific appearance of the conclusion of Identification,the expert quite easily becomes"the judge's master". In order to play expert's role correctly in the lawsuit, the judge must be clear about that the conclusion of identification's effect is just determined by the judge, its proof strength is also determined by the judge who acts according to the case , unifies with all the evidence involved in the case together to make the finial discretional evaluation.