Researches On The Reform Of The System Of Judicial Authentication Institutions

Judicial authentication is a link or chain of the judicial activities, an important source of evidence in the litigation, an important guarantee that makes litigation evidence to be real and enhances the litigation quality, and one of the criteria that modern litigation activities are scientific, democratic and civilized. Judicial authentication institutions, the venues of implementing judicial authentication, are playing increasingly important roles in litigation activities. To ensure scientificalness and objectivity of judicial authentication, judicial authentication institutions need a set of sound system to regulate them. For a long time, there was not any unified management to judicial authentication institutions in our country and the authentication institutions were states of confusion and disorder. "Decision of the Standing Committee of the National People's Congress on the Administration of Judicial Authentication", which was adopted in 2005, made some stipulations on the system of judicial authentication institutions. However, due to various reasons, there are still many unreasonable status quos in the sector of judicial authentication in our country. Reform of system of judicial authentication institutions is imperative.This paper, in addition to the introduction and conclusion, is divided into five chapters, summarized as follows:Chapter I,the general theory about the system of judicial authentication institutions. Judicial authentication institutions are professional institutions that are in accordance with the provisions of the law, have the constitutive conditions of judicial authentication institutions, are approved and registered by the judicial administrative organs or the competent authority, acquire permits of judicial authentication, accept commissions from investigative organs, judicial organs, arbitration agencies, and other organizations or parties, resolve specialized questions refer to litigations by using science and technology or expertise in order to identifying and judgement. There is a close link between judicial authentication institutions and judicial authenticators. The system of judicial authentication institutions includes the nature of authentication institutions, the distribution of authentication institutions, the system of establishment, modification, suspension of authentication institutions, the grading system and the fault liability system of authentication institutions, and so on. The litigation value orientations of the system of judicial authentication institutions include the concept of due process, the concept of litigation effectiveness value, the concept of evidence qualification for and so on. The system of authentication institutions includes two types of centralized mode and multiple decentralized mode, and the latter also includes two kinds of management system which are the monorail system and dual (more) track system management system.Chapter II,the history and status quo of the system of judicial authentication institutions in our country. After the founding of New China, our judicial authentication institutions have experienced more than 50 years long development course, and two main form of authentication institutions come into being, that is, the departmental judicial authentication institutions that the public security organs and the judiciary organs set up for the need of handling cases, and the society judicial authentication institutions that were established in society and accept society-oriented commissions. The "Decision", which was adopted by the Standing Committee of National People's Congress, made more definite and systemic regulation on the system of judicial authentication institutions and had a progressive significance. The"Decision"made it clear that the judicial administrative organs unified manage judicial authentication institutions. It stipulated the business scope, business qualifications, duties and responsibilities of judicial authentication institutions, and established a more comprehensive system of main body and business management of judicial authentication. It abolished the authentication qualification of authentication institutions of the people's courts and stipulated the judicial administrative organs were not allowed to set up any authentication institutions. It limited the jurisdiction of internal authentication institutions of investigation organs and stipulated clearly that they were not allowed to accept the society-oriented commissions. However, because of the incomplete regulations of the"Decision"on the system of judicial authentication institutions, the phenomenon of"self-investigation self-authentication"existing in the public security organs and"self-prosecution self-authentication"existing in the procuratorial organs has not been fundamentally resolved, the social authentication institutions have a certain chaotic situation. In view of this, the reform of judicial authentication institutions is necessary.Chapter III , an inspection on the foreign system of judicial authentication institutions. The distribution rules of foreign judicial authentication institutions include: Most organs which have investigation rights set up authentication institutions. Judicial administrative organs of each country mainly charge authentication and establish authentication laboratory without any authentication organizational system themselves. Authentication institutions of medical jurisprudence and forensic psychiatry are set up in health sector. The majority of judgement organs do not directly engage in authentication business. The organizational forms of foreign judicial authentication institutions are mainly four kinds: authentication institutions set up by nation, departmental authentication institutions, social judicial authentication institutions, vocation authentication institutions outside the judicial authentication. The common characteristics of common law countries and civil law countries include independence, neutrality, specialized, commonweal and so on.Chapter IV,the macroscopical conceive about the reform of system of judicial authentication institutions in our country. In the guiding ideology, it is necessary to carry out reform actively and steadily, and oppose not only the rigid thinking and coming to a halt but also too radical reform. It is necessary to compare mutually and absorb synthetically rational connotation of system of judicial authentication institutions of both the countries which implement the terms of reference and the countries which implement the parties. It is necessary to combine our judicial history tradition and modern judicial practice and accord with our national conditions and judicial practice needs. It is necessary to carry out under the existing system of the"Decision". It is necessary for every department to correspond and cooperate in the process of reform. It is necessary to implement the management system combining government management with vocation self-regulation. China's reform of system of judicial authentication institutions should adopt monorail and multiple decentralized mode, that is, authentication institutions that public security organs and procuratorial organs set up basing on needs of work coexist with social judicial authentication institutions, and judicial administrative organs charge register and administration of judicial authentication institutions. This model is established by the basis of standardization, adjustment and reform to the existing judicial authentication institutions. It takes into account the history inheritance of judicial tradition, and also positively responds realistic needs. At the same time, it makes a good foreshadowing for further reform in the future. It is a model that relatively accord with actual conditions.Chapter V, concrete system design about the reform of system of judicial authentication institutions of our country. According to the model of monorail and multiple decentralized mode to reform China's system of judicial authentication institutions, the following approach should be taken: Firstly, due to adapt to the present judicial practice, departmental authentication institutions should not be cancelled, but should be strengthened. However, departmental judicial authentication institutions should be separated from the other business departments, and become individual established business departments in order to improve its independence and enhance the fairness of the authentication conclusions. At the same time, departmental authentication institutions also should be unified registered and administrated by the judicial administrative organs in order to achieve consistency with social judicial authentication institutions administrant standards and operational standards. Secondly, the administrant system of the social judicial authentication institutions should be further developed and improved. Strict access system and the charging system should be established. Standardize procedures, technical standards and instruments standards of judicial authentication of each subject should be unified instituted. Avoidance system and the responsibility system (including both administrative responsibilities and civil liability) of authentication institutions should be implemented. Guilds of judicial authentication should be established to assist judicial administrative organs in administrating social judicial authentication institutions.