Judicial Appraiser Responsibility Research

Judicial appraisal is the application of technology in judicial practice, which shall be objective, impartial and scientific, while as judicial appraisal is carried out by judicial appraiser, it is an action to take evidence with subjectivity and consciousness, it is possible to conduct mistaken appraisal or mal-appraisal in the process of judicial appraisal, causing damage and leading to the problems about legal liability of judicial appraiser. Starting from the concept and characters of judicial appraiser, this paper describes litigation status of judicial appraiser and main problem existing in legal liability of judicial appraiser, puts forward suggestions and complementary measures to build judicial appraiser's legal liability system by referring theories and practical experiences from judical appraiser's legal liability systems under the two legal systems.This paper consists of four parts.The first part is mainly to distinguish concepts between judicial appraiser and judicial appraiser, analyze the characters and litigaiton status of judicial appraiser under the condition of clearing the concept of judicial appraiser. Judicial appraiser is the implementer of appraisal, the core rule of judicial appraisal system, all appraisal activities are closely related to judicial appraiser. judicial appraiser's knowledge, skill and all kinds of qualities determine whether the appraisal results are correct, whether the smooth running of lawsuits and quasi-judicial activities can be ensured, whether life and property interests can be maintained, etc. Besides, only the litigation status of judicial appraiser is clear, so that problems about appraiser's qualification, rights, obligations and liabilities can be defined. Litigation status of appraiser in China is higher than that of expert witness in common law countries and lower than that of judicial appraiser in civil law countries, reflecting the requirement of scientificity and fairness.The second part is to analyze the necessity and feasibility of studying appraiser's liabilities. It is necessary to define the concept of appraisal legal relations, clarify appraisal legal relations and its subject, whose rights and obligations shall be clear so that the appraisal can be carried out correctly. The right of appraiser is the guarantee of liability, while obligation is the necessary requirement for performing duties. Whether appraiser shall assume liability or assume what kind of liability is closely related to the litigation mode and construction of appraisal subject system. We shall unite the advantages of the two legal systems in the case of official and non-official appraiser existed in our country and select appraiser's accountability theory suited to our actual conditions. In the situation that our study on the theory of judicial appraiser liability is not efficient and the practical regulations are lack in legislation, this paper analyses the categorties of appraiser's liability, and proposes suggestions for building and completing appraiser liability system. Under the guide of necessity of studying appraiser liability and according to the reality existed in our judicial field, this paper analyses the feasibility to build appraiser liability system, and clarifies that the principles of legality, self liability and procedural justice shall be followed when accounting appraiser liability.The third part is to analyze the legal liability of judicial appraiser from the view of jurisprudence. Some principles shall be followed for studying legal liability system of judicial appraiser to unify the legislation and adjudication. This paper specifically analyses the principles of legitimacy, objectiveness, independence and impartialty, unification of objectivity and subjectivity of knowledge and relativity and absolutism of practice, the principle in conformity with our current legal system and principle combines legally investigating liabilities with protecting lawful rights of appraiser.The aim is to strengthen the obligation idea and sense of responsibility by pre-prevention and afterward remedy, ensure objectiveness and impartialty of appraisal results, thus ensure smooth running of appraisal activity. The author also specially discusses the scope of investigating appraiser's liability from home and abroad, analyses the nature, categories and constitutive requirements of legal liability of appraiser from the perspective of civil liability, thus clarifies the exemption given to appraiser. In addition, the author tries to establish a legal liability system for appraiser suited for our reality and legal practice in terms of criminal, administrative and civil liability, further clarifying the liability of appraiser by legislation and completing the system about judicial appraiser, promoting the healthy and orderly development of judicial appraiser order.The fourth part is mainly to discuss problems to be solved and related complementary measures under the system. First, this paper analyzes the rationality of subject who assumes civil, criminal and administrative liability according to our reality. With deepening appraisal system reform, the system shall be mainly focused on personal liability and supplemented with organ liability, transforming the"official expert"position of appraiser and realizing appraiser's socialization. Second, burden of proof, as an important part of evidence system, shall be clarified. Judicial appraiser has different kinds of liability, as different procedures are applied in civil, administrative and criminal procedures for accounting liability, so that the distribution of burden of proof is different. Finally, it is necessary to clarify and complete the rules of appraiser liability to restrict appraiser to perform duties objectively and impartially based on true obligation, and encourage them to serve the court. While malpractice liability insurance and mutual aid system shall be constructed to minimize practice risks of appraiser and ensure the fulfillment of civil liability caused by mistaken appraisal. In the respect of the nature of judicial appraisal, both official appraisal and non-official appraisal shall be subject to multi-level and multi-angel supervision to guarantee the objectiveness and impartiality of judicial appraisal.