Several Reflections On Judicial Identification

Since making the conclusion of judicial identification as the evidence, with a laudatory title of King of the Evidences, it has played a vital role in the inquisition of some cases. Although Chinese judicial identification system has its own feature, to some extent, it follows other countries'judicial identification pattern. As the development of Chinese social legal system, the shortcomings of judicial identification are revealed. On Feb. 28, 2005, Decisions on the Management of Judicial identification was carried out by the 14th meeting of the 10th NPC standing committee, which is has already implemented on Oct. 1, 2005. Then, the system of judicial identification has become the focus of the research done by law scholars and the judicial circle. This thesis makes reflections on Chinese judicial identification from three aspects with the hope of benefiting the improvement of Chinese judicial identification system.In Part 1, it is discussed on the starting right of judicial identification to analyze the present situation of the starting right disposition of Chinese judicial identification and to make some suggestions on it. First, the present situation of Chinese judicial identification starting right disposition is introduced from the perspective of investigation organ, judicial organ and the parties involved. Second, analysis and judgment is made on the Chinese present judicial identification starting right. Further discussion is done for the unreasonable factors. Then the author comes to the conclusion that misuse of the starting right is unavoidable if no limitation is made by the public security and judicatory bureau. In this case, the parties involved may do entrusted judicial identification out of lawsuit which may oppose the result of the testimony started by judicial organ, which will lead to the repetition of testimony. Finally, the author suggestions on how to improve Chinese judicial identification starting right are put forward: the starting right of the judicial identification before litigation of the civil, administrative and criminal cases of private prosecution granted to the party is the necessity of the right of action. Depriving this starting right from the party means depriving the party's right of action. The police, procuratorate and the party all have the starting right of judicial identification for the criminal cases in investigation and prosecution stage. Remedy right should be granted to the suspect to balance the litigious relation. The starting right of judicial identification for the cases under trial should be granted depending on the actual situation of the case. The court has the right to start judicial identification if the authenticity of the evidence provided by the parties involved cannot be judged or the parties make application to the court to start technical testimony or the court regards judicial identification is needed to make fact clear.In part 2, it is discussed on the re-appraisal issue of judicial identification from three aspects: First, historical aspect: the three causes of re-appraisal of judicial identification are discussed: the system problem of the testimony; legislative lag; the judge's role in practicing the re-appraisal right. Second, legislation aspect: lack of procedure regulation; the multiplicity of the consigner and lack of law concerning the appraisers appearing in court. Then, the author comes to the conclusion that China has no regulation on the necessity of re-appraising, on the institute conducting re-appraisal or the time of re-appraising, which will result in frequent re-appraisal. Finally, conceives are made for the improvement of re-appraisal system: the decision mechanism for testimony should be further improved; the examination, collection of the testimony of the judges should be regulated; three countermeasures for the re-appraisal procedure should be perfected. The decided power and delegated power of the judicial identification should be carried out by judicial functional sectors that should fully understand the parties involved and respect the parties'application and abstention rights to limit that of the judge's. As one of the evidence, judicial identification is scientific, objective and rational. The appraiser may be required to testify in court when dispute exists on the conclusion of testimony. The judge should make explanation for the chosen conclusion.In part 3, it is discussed examination of the conclusion of judicial identification. The examination procedure of the two law systems is reviewed and the conclusion that the two systems have their own advantages is drawn. They also learn from each other. Britain and America learn from the continent countries'examination of evidence procedure to increase the controlling role judges played in the procedure. While the continent countries and those countries applying similar law think over the disadvantages of the judge's direct examination. They also learn from Britain and America's examination system, which results in the convergence of the law systems. The problems existed in Chinese examination of the judicial identification are analyzed. And the conclusion that China has misunderstandings over the examination of judicial identification is draw. The judicial identification procedure performs practically no function since the judges follow the testimony conclusion without questioning. The author also points out that China lacks show procedure for the judicial identification before the court at present so the parties cannot raise questions on the conclusion of the testimony. And the liability of the appraiser is not stated. Constructive suggestions are draw from learning and analyzing other countries law. Conceive for re-constructing Chinese judicial identification system is discussed: the court should show the judicial identification before the trial and inquire whether different idea is held by the parties involved. If no different idea, a document of no objection on the testimony should be made. If different idea is raised, re-appraisal or written review can be done. The regulation that the appraiser appears in court should be made to prescribe the responsibility of the appraiser, which increase the antagonism of the court trial and ensure the acceptability of the conclusion of the judicial identification. Inquiry procedure should be reorganized. Main inquiry and cross inquiry serves as the two forms in inquiry. The qualification, neutralism and credibility of the testimony institute and the appraiser and the relevancy to the case as well as the probative power of the testimony should be inquired. Questions concerning the conduct of the testimony should be put forward, including the conclusion, the method and the procedure of the testimony, which will raise the judge's confidence degree over the testimony. Experts testifier involves in the examination can enhance the quality and efficiency of the inquiry in court trial and promote the quality of testimony.