Study On Construction Of Judicial Expert Appearing In Court System In China

With the changing of science and technology everyday and the complexity of social contradictions, the modern judicial faced much technical problem when the judge found the truth. The judicial expertise played a more and more important role in judicial procedure, and the evidence of judicial expertise is often the key to success or failure of the litigation. Moreover, to cross-examine the conclusions of the judicial expertise is the important basic right of action to the litigants. However, the situation that the judicial expert avoid obligations of appearing in courts is serious, so that the evidence of judicial expertise can only be readed in court, but fail to cross-examine fully. There are not only subjective reasons such as the cognitive deviation of the judge and the judicial expert, but also the objective reasons of imperfect legal system.There are negative impacts on justice system because of difficulty of judicial expert appearing in court and formalize cross-examination of evidence of judicial expert. On the one hand, the facts judged by the judge often based on the evidence of judicial expertise without cross-examined fully. It has affected substantive justice. On the other hand, procedural justice can not be guaranteed if the litigants' right of cross-examination is replaced by reading the conclusions simply. Establishing a sound system of judicial expert appearing in court is an important part of reformation of modern judicial systems and promotion to judicial fairness.This article tried to establish primary framework on the judicial expert appearing in court system based on analyzing the problem of judicial expert appearing in court as a witness, and learning from foreign judicial experience.In addition to the introduction and conclusion of this article, the total is divided into four chapters.Chapter one discussed the historical evolution of judicial expertise system, defined applicable scope of judicial expertise, and cleared the difference of concept in judicial expertise, judicial expert and judicial expertise mainbody. This part also analyzed the necessity which the judicial expert appearing in court as a witness with the perspective of the development of judicial expertis and related concepts. All above layed the theoretical basis for the below. Chapter two discussed the present situation and defection about judicial expert appearing in court as a witness from both subjective and objective aspects. The subjective aspects concluded the cognitive deviation of judicial expert, the judge and the community. The objective aspects mainly concluded the lack of legal consequences, the imbalance between rights and obligations and the non-standard of cross-examination of judicial expert appearing in court as a witness, which result from impefect law ststem. Finally, this part emphasized the necessity of judicial expert appearing in court based on its significance .Chapter three is about the extraterritorial resources of judicial expert appearing in court system. This part tried to seek the useful experience to contraction of judicial expert appearing in court in China through discusstion about "expert witness" in Anglo-American legal system and "judge-assisted person" in continent law system and analysis and comparison of advantages and disadvantages between two legal systems.Chapter four is the key part of this article, it build a comprehensive system of judicial expert appearing in court based on its system foundation and rule design. This article consistently implement the principles of procedural justice,direct and verbal trial and right of cross-examination when establish the rule of judicial expert appearing in court. This part put forward six suggestions of judicial experts appearing in court system based on analysis of causes of the problem and the experience learning from the foreign countries. The suggestions conclude: clearing the lawsuit satus of judicial expert; determining the exceptions to the obligation to judicial experts appearing in court; establishing the right guarantee of judicial experts appearing in court; perfecting the procedures and the contents of judicial experts appearing in court; establishing the system of accountability when judicial experts do not appearing in court; establishing the system of expert assessor.