| With great concern, the second instance trial of Fudan poisoning began in Shanghai. As a expert Assistants, legal medical expert Hu zhiqiang said “the dead may die of explosive viral hepatitis type B” in the trial, his words shocked the people there. Prosecutors made a prompt deny, he said:” Hu just made this conclusion in according to reference materials and experiences, instead of practical inspection to the body. So, his remarks cannot be used to overthrow the expert opinion of first instance.” Hu’s remarks did not adopted by the court did not shock me because of the powerful refutation of the prosecutor. But it draws attention of the public to discuss the concept of “ expert Assistant ”. Because this is not only a single procedure of lawsuit, but a significant condition that influences the fair verdict of the same cases.With the development of science and technology, our life is becoming more and more complex. Fact-finding of criminal cases is not only a legal procedure. Many non-professional views are playing a significant role in litigation. The application of expert opinion appears a lot in criminal cases. Sometimes the expert opinion has the decisive influence on the result of litigation. At first, expert opinion were authoritative. But, with the expanding of demand of expert opinion, the number of appraisers is increasing rapidly. It influences the management and quality of expert opinion. Therefore, it becomes increasingly important in the confirmation of expert opinion.However, on one hand, because of the ex officio doctrine in litigation, expert opinion that being used as legal evidences was issued by the office of the public prosecutor. If other party has any objection, they can re-identify it only with the agreement of the court. As a result, the expert opinions are much authoritative in litigation, but lacking of powerful confirmation. On the other hand, the confirmation of expert opinion is related to professional knowledge. Lawyers, prosecutors and litigants may be professional in his field, but not generalist in all respects. Thus, the participants are without a talent who can fight against appraisers in some professional problems. Therefore, we need introduce more experts in all respects, in order to help litigants to express their views and exercise their litigation rights. As a result, the new edited “Criminal Procedure Law” in 2012 introduced the system of “talents with professional knowledge” to make up this fault; help litigants solve the problem of lacking confirmation in expert opinion, and sorting the specific problems in cases. But the law is too simple, resulting in many problems in the practice of this system. Therefore, this thesis has the theoretical and practical value in studying this system. We hope to improve the credibility of the judiciary, promote judiciary reform, and maintain social fairness and justice.The full text is divided into four chapters, a total of more than 31000 words.There are three parts in first chapter: first, classifying the concept of expert assistants and other same ones. We linked the concept of expert assistants and that of “talents with professional knowledge,” to define the meaning and features of expert assistants, and lay a theory foundation for the discussion. Second, we simply introduced the state of expert assistants system in civil and administrative litigations before 2012, and the phase and development of it in criminal litigation after the formulating of new edited “Criminal Procedure Law” in 2012, in order to let us know the situation and problems of this system. Finally, we introduced the meaning of this system in protecting human rights and other three parts to indicate the importance of this system in the litigation in China.In the second chapter, we introduced the difficulties of expert assistants system to make up the fault of insufficient judicial certification in criminal cases on the basis of the judicial condition. The author thinks that, the main problem of this system is the unclear stage of expert assistants, and the lacking of unified and clear foundation of this system. These result in many problems in the operation of expert assistants system in criminal litigation. We hope to make the fault of the current expert assistants system much more clear.In this chapter, we use two legal systems as our linkage. We mainly introduced the system of expert witness of U.S., the system of technical advisor in Italy and the litigation assistant system of Japan. These systems, especially the position of expert witness have great influence in our law system, and laid a theoretical foundation for the discussion of the improvements in Chinese criminal litigation.In the fourth chapter, we introduced the innovation of this thesis. We think expert assistants are independent while their neutrality should not too strict. That is to say, remarks of expert assistants in criminal litigation should be on the basis of objective science and should not be affected by any party. What’s more, according to the assignment of witness responsibilities in criminal litigation, expert assistants enjoy the right of immunity when they found evidence that is unfavorable to them. Then, we think there are two kinds of expert assistants: talents with knowledge and talents with experiences. The requirements to the first ones are same as those to the appraisers, aiming at solving the confirmation to the expert opinions. Therefore they enjoy the rights to reappraisal with the agreement of the court. The requirements to the second ones should not be too strict. They help litigants solve the other specific problems in litigation. But considering their qualification and ability, they cannot enjoy the right of reappraisal. This thesis introduced the problems in expert assistant system in Chinese criminal litigation and some expert witness system of other countries. We put forward the position of expert assistant in Chinese criminal litigation- independent litigants. We also express our advices on procedures and improvement of relevant rules of this system. |
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