Pre-trial Forensic Procedural Research

China adopts authority dominant litigation model, which obeys the process that parties in action must prosecute firstly and do a judicial expertise then, and we call that judicial expertise during the litigation. However, as a professional activity investing evidence, it is improper to put judicial expertise ahead of litigation, otherwise, that will push back the party’s expectation for the result of litigation, aggravate the tension between the both parties and also waste the judicial resources. Under the circumstances in which lots of cases sprout out, and social contradictions get more complete, it is more clear and obvious for the disadvantages of the model firstly prosecuting and then dong judicial expertise. To deal with the situation, Beijing xicheng district people’s court and Shanghai xuhui district people’s court start to explore to start the judicial expertise before the litigation in practice. Because of the lack of relevant laws, the situation lacking standardization and unification starts to occur in this exploration to reform existing judicial system from bottom up, and it even contradicts with existing laws in some situations. It’s just because of the various problems that it is necessary to do further researching about the model starting the judicial expertise ahead of the litigation. To enhance the function of judicial expertise before litigation, my article chooses some courts, which has started the practice of judicial expertise and achieved good effect, as samples to assess the judicial effects in practice. During the process, my article learn some lessons from German’s civil procedural laws, and also do some researching on the construction of Chinese judicial expertise before litigation. Generally speaking, my article wants to do discussion primarily on the promotion and application of this model in practice, express my opinions about the sequencing of judicial expertise before litigation.My article can be divided into five sections, including introduction, overview of judicial expertise before litigation, survey on the practice of judicial expertise before litigation, the sequencing of judicial expertise and the conclusion.The introduction mainly describes the basis and meaning choosing this topic to discuss, literature review and main research methods of my article.The first chapter is mainly about overview of judicial expertise before litigation, and introduces the basic theories of judicial expertise before litigation. Firstly my article introduces the concept and nature of judicial expertise. There are different viewpoints about the question whether it can be contained in ranges of judicial expertise for courts to delegate expertise to other organizations in practice. My article describes the concept of judicial expertise, based on the viewpoint that it should be contained in ranges of judicial expertise for courts to delegate expertise to other organizations in practice. The second chapter compares the judicial expertise before litigation and relevant concepts, and discusses the advantages of this model. My article chooses two different expertise models in practice to study, including judicial expertise entrusted by parties and judicial expertise during litigation. The article introduces the similarities and differences among judicial expertise before litigation, the judicial expertise entrusted by parties and the judicial expertise during litigation, and thinks the judicial expertise before litigation has more advantages over other models, which highlights the advantages of the judicial expertise before litigation.The second chapter, which is divided into three sections, researches the effects of judicial expertise before litigation in practice. The first section introduces the experiences of this model, and then the second study the practical effects of the model, and finally the third section discusses the problems of the model in practice. In the first section, the article introduces how the judicial expertise before litigation is done in practice, based on the researching on the experiences of Beijing xicheng district people’s court and Shanghai xuhui district people’s court. The second section 3 summarizes the successful experiences in practice. Firstly, judicial expertise before litigation could enhance the efficiency of litigation and solve the disputation of parties, and the model can cut down the lawsuit time. Secondly this model can decrease the burden of parties. Thirdly, the model can ease the tension between parties. In the third section, the article summarize the existing problems of the model in practice, including the unclear jurisdiction, the violation of parties’ right of action, the lack of protection for opposite party, the not uniform effects of conclusion of judicial appraisal before litigation, settlement agreement’s having not legal force, and the unclear subject burdening appraisal cost.The third chapter divided into three sections discusses sequencing of judicial expertise before litigation. The first section also can be divided into two parts, and the first part summarize three different model in practice of judicial expertise, including the type entrusted by court, the type with the court as agency, and the type with court as consultant. Then, I explain why the type entrusted by court should be the type fitting China from the aspects of Chinese judicial situation and comparative law.The second section mainly discusses sequencing of judicial expertise before litigation, after we confirm China should choose this model. At first, I think the enumerative method should turn into inductive method when the court decided what cases can suit the judicial expertise before litigation, because enumerative method can’t meet the needs of different cases. In addition, my article discusses the preconditions applying judicial expertise before litigation, including the court’s having jurisdiction, the party’s filing application, and the issues needed to be identified being relevant with the cases. After discussing the cases suiting judicial expertise before litigation and precondition, the third parts discusses the specific rule of the model. The rules include:1.the court interpretates the rules in reviewing.2.the party files an application, and the court accepts and examinates the application.3.the judge announces the opposite party.4.the party submit the expertise materials, and accept cross examination.5.the party and court go through expertise’s formalities. Besides the scientific and reasonable rules, some supporting measures must be indispensable. The third section mainly introduces some supporting measures, includes: 1. the competent department should be defined, and I think the organization of prosecution court should be reformed, and the special administration belonging to prosecution court and supervising judicial expertise before litigation should built. 2. The opposite party’s right should be protected during the judicial expertise before litigation, and should be given right to know and right to participate. 3. The conclusion of judicial appraisal should be directly regarded as evidence to be used in action. 4. The system that contacts settlement agreements and the judicial confirmation process should be built. 5. The principle that the expertise’s cost firstly is burdened and finally is burdened by subject liability should be confirmed.The conclusion introduces the main contents of this article, and express that it is necessary to continue the research on the judicial expertise before litigation.