A Study On The Problems In Chinese Expert Testimony System

In the trial practices, because of the lacks of professional knowledge about those expertise problems needed to be appraised, the judge will greatly depend on the expert conclusions. In Chinese judicial practices, there have been such phenomena for a long term, as self-investigation and self-identification, self-inspection and self-identification, self-trial and self-identification, the quality of expert testimony appraisers being uneven, which makes the authority of expert testimony conclusions confront with unprecedented challenges. However, expert testimony conclusions, known as king of evidence and also important evidence in litigation, play a decisive role in many cases. As a result, the reform of expert testimony system is the focal point in the whole reform of judicial system. This article, Combining with the trial practices of court, focuses on the consideration of the characteristics, contents and roles of expert testimony, the subject of Chinese Expert testimony system, the starting and entrusting system of Chinese expert testimony, the re-appraisal and admission of Expert testimony conclusions and so on, with the expectation to benefit for the reform and perfection of Chinese expert testimony system.The first part is a description of the characteristics, contents and roles of expert testimony. Through the historical changes and comparative analysis at home and abroad, it clears up the concept of Expert testimony and figures out four characteristics of it. The first one is scientificalness. Appraisal itself is a scientific activity, as the materials used for appraisal is objective and the means, methods, conclusions of appraisal are all scientific; the next one is legitimacy. The subjects, procedures and expert conclusions are all required to be legal; Thirdly, appraisal is independent as the accrediting bodies and expert testimony appraisers can carry out independent appraisal activities without any interference and the judicial appraisers are merely responsible for the objective scientificalness of the appraisals; The last one is the openness, that the Expert testimony system and procedures must be open and transparent. Four contents of Expert testimony are also generalized in this part. They are forensic appraisal, material evidence appraisal and acoustic image materials appraisal and other matters to manage the registration of Expert testimony appraisers and accrediting bodies provided by The Supreme People's Court, The Supreme People's Procuratorate, Which are the judicial administration departments under the State Council in accordance with the need of lawsuits. This part also sums up five roles of Expert testimony in accordance with trial practices, which are providing basis for court's accepting, hearing and qualifying a case, providing basis for quantification in case trials, providing basis for measurements of penalty measurements in case trials, providing basis for the review of the authenticity of other evidence, providing basis for the court's reviewing whether the subjects are qualified or not.The second part does an analysis and research on the subjects of Chinese Expert testimony system. This paper analyzes particularly on the new issues after the implementation of The Decision and clarify the constitute of the subject of Expert testimony. The two major elements, as the subject of expert testimony that impact the justice of appraisal substance, are accrediting body and appraiser. This part gives a study of the problems existing in the expert testimony institution system, the unreasonableness in identifying the fight between rights and interests and in the setting of the classification of institutions. In response to these issues above, the article raises out some amendatory advices to the expert testimony institution system from four aspects as follows: Firstly, the setting up principles of accrediting bodies should follow the principles of scientificalness, legitimacy and independence; Secondly, the scope of the cases accepted and heard by the accrediting bodies needs to be standardized, and the accrediting bodies must receive the cases and carry out the appraisal work in strict accordance with the scope of public registration; Thirdly, it is recommended that the foreign advanced experience can be absorbed when setting up accrediting bodies, in the way of combining concentration and dispersion. Fourthly, it is the supervision and management to accrediting body. It is advised to implement a comprehensive monitor and management over accrediting body under different circumstances. That is: the professional guilds conduct supervision and management over professional affairs, and the registration, fees and administrative penalties of accrediting bodies are only under the charge of judicial administration department. What's more, the activities of the expert testimony engaged in the accrediting bodies, as a part of lawsuit activities, are to receive supervision and management from the courts. This part also puts forward some views on the system construction such as the legal status of expert testimony appraisers, qualification system, pre-job training, continuing education and testifying in court in the Expert testimony system.The third part is about the starting and entrusting system of the Chinese expert testimony. As for the starting system of expert testimony, the author makes comparison between the start-up of the Expert testimony in Anglo-American Legal System, Continental Law System and Chinese expert testimony, combine with the actual situations courts system encounter in the starting procedure of expert testimony, to analyze the problem of unequal distribution existing in the starting procedure of expert testimony. It discusses the points should be improved and perfected in Chinese expert testimony Procedures from the aspects that justice should be benefit to people, high-quality and efficiency serves for judicial work, endorses the parties with the right to start in Expert testimony. As for the entrusting system of Chinese expert testimony, with the combination of practical problems in court's trial practices, the author analyzes the advantages and disadvantages through the entrusting procedures and comparison between the two forms of expert testimony entrustments: personal entrustment and court-organized entrustment. The main focus is on the advantages and disadvantages of personal entrustments which reflect the right of parties after the reform. The author affirms the inventive step of this right in the reform of expert testimony system, and thinks over how to regulate and guide proper and effective implementation of such rights in order to maintain the authority of expert testimony to save the cost of the parties and truly achieve the purpose of serving for people from three aspects of standardizing the entrusting styles, perfecting the jurisdiction provisions and perfecting the regulations to avoid.In the fourth part, the author makes some exploration about the re-appraisal and admission of Chinese expert testimony conclusions. As for re-appraisal, in the cases of personal entrustments, the situations in which re-appraisal will emerge includes cause of action errors leading to wrong criteria of the application, the qualification of the accrediting body being dissented, different areas being applicable to different standards. In court-organized entrustments, the situations in which re-appraisal will emerge include accrediting bodies or appraisers being disqualified for identification, appraising procedure being a serious breach of law, expert conclusions lacking of basis and other circumstances in which the expert conclusions cannot be used as evidence upon the cross-examination. Provisions on re-appraisal procedures are raised through the analysis of the circumstances in which occurs the re-appraisals in personal entrustments and court-organized entrustments. As for the admission of expert testimony conclusions, the analysis is carried out from four aspects: clarifying the requirements for expert testimony instruments, clarifying the examining and verifying to expert testimony instruments, clarifying the pre-trial publicity system of expert conclusions and clarifying that the judge should state his or her reasons for accepting or rejecting any expert conclusions. It regulates that the judge should made clear scientific and rational conclusion on the admission of expert conclusions. At the same time, the technical staffs are affirmed to have an important role when they provide technical advices, technical audit services when judge admits the expert conclusions.