| In recent year, role of the criminal judicial expertise is becoming more important in the criminal proceedings, the various troubles exposed in practice have been caused attention by the theory circle to the some issues such as system of criminal judicial expertise, and starting procedure, etc. because that, starting procedure of criminal judicial expertise would be concerned with litigious right and substantive right of a litigant directly, concerned with fairness of a expert conclusion, etc. the more remarkable attention is caused by litigant, judicial authority and theory circle. In my mind, the various troubles caused by criminal judicial expertise would be attributed to the unreasonable configuration in starting right for our criminal judicial expertise. In a criminal proceeding, the starting right of a criminal judicial expertise is monopolized by the three authorities, i.e. public security bureau, procurator ate and law court, as a litigant, who doesn't have any rights of relief excepting the right of application to supplementary expertise and re-expertise only. This situation would go back on fundamental principle of balance of charge and defense, to a very great extent right to participation, right to produce evidence and right to attorney of a litigant has been deprived and, principle of procedural justice has been violated, it must go against human rights protecting. for these reasons, in this thesis the configuration of criminal judicial expertise in starting right is key, firstly, the theory of criminal judicial expertise is performed a overall cognition; secondly, the current situation and the existing troubles in configuration of criminal judicial expertise in starting right is made an analysis,; thirdly, after investigating the configuration modes of criminal judicial expertise in starting right for the two main legal systems, the some measures concerning with reforming and improving the configuration of criminal judicial expertise in starting right in this country will be raised accordingly.This thesis is made by me according to the following line: raising the question, analyzing the question and resolving the question, excepting introduction and conclusion the main body is divided into 4 parts, the whole of the thesis is about thirty thousand words.Part-1 is the basic theories concerning with criminal judicial expertise. That's because profound understanding of elementary theory is the premise to analyze from the root the starting right of criminal judicial expertise in our country and carry out further reform and consummation. This part firstly gives a comprehensive understanding of the nature of criminal judicial expertise, the author defines from the aspects of litigation, evidence and appraisal object, correspondingly, the nature of criminal judicial expertise can be defined as criminal procedural act, verbal evidence and resolving the special questions in criminal proceedings. Secondly, discusses the understanding of criminal judicial expertise starting right, expounds respectively from three aspects, that is, criminal judicial expertise procedure, starting right and nature. The author tends to consider that criminal judicial expertise is a kind of verbal evidence, and the manifestation of right to produce evidence. Starting is the very essential link in criminal judicial expertise procedure, it is the premise to implement criminal judicial expertise, and referring to who starts, how to start, it is closely connected with specific legal institution, litigation pattern, evidence system, legal culture as well as case type.Part-2 is the current situation and the existing troubles in our configuration of criminal judicial expertise in starting procedure. Firstly, in consideration of the relevant laws and regulations in our country, it has outlined the current situation of starting right of criminal judicial expertise, that our country's public security bureau, procurator ate and law court has monopolized the starting procedure of criminal judicial expertise, the litigant has only rights of application for supplementary verification, reappraisal. Such as the rights of configuration that would make the procedural right of litigant unrealized. Secondly, combing with the current situation, the existing trouble in our country's starting procedure of criminal judicial expertise have been analyzed. In the first place, there is inequity between both the prosecution and the defense on starting right of criminal judicial expertise, that defense party has only the rights of reappraisal and supplementary verification, and it is even conditioned by public authority, the inequity and imbalance on starting right of criminal judicial expertise by both the prosecution and the defense not only violate the basic demand of procedural justice, that would often cause the doubts to expert conclusions in objectivity and credibility. Second, the starting right of judicial expertise that is given authority by lows to public security bureau, procurator ate and law court is unbalanced, Current, criminal judicial expertise in starting right granted by the law of our country to public security bureau, procurator ate and law court is too large, that has had too much influence on litigant's procedural rights. Third, under the current system, as the absence of optional right of litigant judicial expertise, the litigant has neither the right of choosing expertise body nor the right of choosing appraiser. Facing the current situation and the existing serious troubles in our country's criminal judicial expertise, we have to make a profound reflection.Part-3 is the foreign experience and revelation in configuration of criminal judicial expertise in starting procedure. First of all, it is an introduction to the models of configuration of criminal judicial expertise in starting procedure in both system of Anglo-American law and civil law system, in which the system of Anglo-American law is embodied as a bilateral expertise under the model of litigant and civil law system is embodied as a single expertise under the model of inquisitorial system. The writer thinks that the examination on the model of the configuration of criminal judicial expertise in starting right in the typical countries of both system of Anglo-American law and civil law system no matter during the investigation stage and during the trial stage, the litigant of system of Anglo-American law has the starting right of criminal judicial expertise and nomination right of the expertise witnesses; while the litigant of civil law system generally only has the right of applying to start the criminal judicial expertise and has not the right to choose expertise organ and expertise witnesses. Next, the comparison and evaluation on configuration model between the two legal systems are put forward. From the aspect of seeking for entity fairness, the starting right configuration model of the civil law system has certain superiority. However, from the aspect of procedural justice, the starting right configuration model of the legal system of Britain and America are better. The author thinks there is not an idea of which configuration of criminal judicial expertise in starting right is absolute better. They both have their own special systematic cultures and social structures to support them, and any individual model of them is not in accordance with the starting right reform of the criminal judicial expertise in China.Part-4 is to improve configuration of criminal judicial expertise in starting procedure. This part is the key point of this thesis. Firstly, the author proposed the consideration factor of reform in configuration of starting procedure, including political legitimacy, litigation institutional condition, transformation of litigation conceptions as well as possibility of realization and so on, and considered that only by considering from various aspects can make the configuration of starting right in criminal judicial expertise become more perfect. In view of distinctive peculiarity in our country's political system and litigation system, related experiences from foreign countries are impossible to play the role, therefore, our country's configuration of criminal judicial expertise in starting right must try another way under the traditional pattern. Secondly, the author discussed the concrete reform of configuration of criminal judicial expertise in starting procedure, the first aspect is to restrict and maintain the starting right of civil rights institution through restricting the power of investigative organ and regulating the range of court to start judicial expertise respectively, in this way, it may effectively prevent civil rights institution from the infringement of litigant procedural rights; the second aspect is to allow litigant to start the criminal judicial expertise right independently, then give further framework to it under the foundation of expounding the theory of litigant starting criminal judicial expertise procedural rights independently, mainly to entrust with litigant the initiative to start criminal judicial expertise procedure, and the court with passive right to start criminal judicial expertise procedure, thus, participation rights of litigation for litigant can obtain full manifestation; the third aspect is to reform and consummate the public rights to restart judicial expertise or replenish the start of judicial expertise procedure, restrict the investigative organ from using the internal accrediting body to carry out reappraisal and supplementary appraisal so as to ensure the justice of appraisal conclusion. Finally, it refers to supporting policies of reform in configuration of criminal judicial expertise in starting procedure, mainly elaborates from two aspects, that is, accrediting body and neutrality of appraiser. The objectivity and fairness of appraisal conclusion directly influence the integrity and authority of the judiciary, only by ensuring the accrediting body and appraiser to maintain neutrality and free from the influence of various interests can obtain objective and true appraisal conclusion, therefore, the author proposed some suggestions to the management of accrediting body and appraiser, with which to guarantee the effective implementation of configuration of criminal judicial expertise in starting right.The reasonable configuration of criminal judicial expertise in starting procedure may effectively ensure the procedural rights of litigant and restrict the civil rights institution from infringing and neglecting the procedural rights of litigant, thus, it can ensure the integrity and authority of the judiciary while making the public even more belief law, and further more, it will be beneficial to promote the realization of managing the country affairs according to law as soon as possible.
|
PDF Full Text Request