Reflection And Reconstruction On Civil Judicial Expertise System In China

Findings of fact are the basis of civil trials, while judicial expertise is the effective measures for findings of fact. Especially along with the development of the socialist legal system and rising awareness of law of citizens, civil judicial expertise is also regarded as a symbol of power for parties understanding the truth and participating in litigation. Thus it can be seen that judicial expertise is playing a more and more important role in judicial practice, and meanwhile has been attracting wide attention from society. With this history background, Decision on the Management of Judicial Expertise emerges as the times require. It is a milestone of the development of judicial expertise system, which has made a relative comprehensive norm on judicial expertise system from perspective of legislation management for the first time in China. However, at the same time, we can not ignore that judicial expertise system in China is still not very mature, and there still exist many problems need to be solved urgently in aspects of management system of judicial expertise, civil judicial expert system, enforcement system of civil judicial expertise, confrontation and certification system of civil judicial expertise etc.. So, starting from the civil authentication system, the author puts forward some preliminary conception thorough study of related theories and practices from the above several aspects, so as to provide help for colleagues interested in reform of civil judicial expertise system in China.This paper is divided into six chapters.ChapterⅠis about the introduction to civil judicial expertise system. In this part, concept of civil judicial expertise system is introduced firstly, and then features of civil judicial expertise are got through crosswise comparison with criminal judicial expertise.ChapterⅡrefers to the present situation of legislation and defects of civil judicial expertise system in China. First, a brief review on process of legislation of civil judicial expertise system in our country is made. Then problems existed in civil judicial expertise system in China is concluded. Firstly, problems existed in current management evaluation are elaborated, including imperfect power of administration, option of lower court and authentication institution of parties cannot be guaranteed, death of liability system of authentication institution as well as rating system has not been determined by authentication institution, and efficacy of expert conclusion cannot be affirmed etc.. Secondly, concerning aspect of judicial expert system, problems such as power of judicial expert is not paid much attention and system of judicial expert appearing in court is hardly to be guaranteed. Thirdly, problems on enforcement power of judicial expertise shall not be attributed to the Court are put forward from the following three aspects:deviate from function of unbiased trial by court; collide to principles of shouldering responsibility of presenting evidence; and abusively repeated authentication is caused and the burden of parties is increased due to the Court starting judicial expertise at will in judicial practice. Finally, problems existed in confrontation and certification system of judicial expertise is analyzed from three aspects:confrontation of expert conclusion to become formalistic; system of judicial expert appearing in court is hardly to be guaranteed; and discretionary power of the judge when adopting the conclusion of expert conclusion is too large.Chapter III is on the perfection and reconstruction of management system of judicial expertise in China. In this part, management system of judicial expertise in English-American law systems and civil law system is introduced firstly, from which, characteristics of management system of judicial expertise at abroad are concluded. Then, it is proposed that to establish quality operation mechanism, eliminate practices entrusted and appointed by court structure expertise center, set up grading system on qualification of judicial authentication institutions and sound liability system of judicial authentication institutions through the unification of power of administration on judicial expertise, thus to make a further perfection to the management system of authentication institutions.Chapter IV is on the perfection and reconstruction of judicial expert system in China. Judicial expert system of English-American law systems and civil law system is introduced in detail in this part, then, idea of reconstruction of judicial expert system is proposed from two aspects that to give reasonable rights to judicial expert, as well as to perfect system of judicial expert appearing in court through the definition to legal responsibility and sanction process, strict limitation to conditions of judicial expert's non-appearance, and the improvement to expert advisor system.Chapter V is on the perfection and reconstruction of enforcement system of judicial expertise in China. After the introduction and comparison to the enforcement system of judicial expertise in English-American law systems and civil law system, preliminary idea on how to return the power to enforcement of civil judicial expertise to parties, and power to apply for the re-expertise, so as to perfect enforcement procedure of judicial expertise.Chapter VI refers to the perfection and reconstruction of confrontation and certification system of judicial expertise in China. In this chapter, apart from the introduction to confrontation and certification system of judicial expertise at broad, practices on perfection of confrontation and certification system of judicial expertise in our country is elaborated in detail fro the following four aspects:Establishment of expertise materials confrontation system; refining on standard of judicial expertise conclusion; determination on the criterion of inquiry to judicial expertise conclusion; and reason state clearly for adopting expertise conclusion in court verdict.