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An Empirical Study Of Expert Assistant System In Criminal Procedure

Posted on:2020-09-20Degree:MasterType:Thesis
Country:ChinaCandidate:K Y TianFull Text:PDF
GTID:2416330572994210Subject:Procedural Law
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In 2012,the Criminal Procedure Law added a provision that both the Prosecution and the Defense could apply for expert assistant to appear in court to give opinions on the appraisal opinions.In recent years,there have been some cases of expert assistants appearing in court in various parts of the country.The practical attempts and explorations have accumulated valuable experience for the development and improvement of the system,and also reflected many problems in the operation of the expert assistant system.Therefore,this paper adopts the method of empirical research to study the existing practice of expert assistant system,aiming to understand the operation status of the system,find out the obstacles and problems encountered in the operation of the system,and finally try to put forward the corresponding solutions.The body of this paper consists of the following four parts:The first part is the preface of this paper.This part gives a brief introduction to the research object,research methods and research samples.The research object of this paper-"expert assistant" is an expert assistant in the narrow sense,that is,in criminal proceedings,the person who has filed an appeal to the appraisal opinion applied by the prosecution and the defense.In terms of research methods,this paper adopts the method of empirical research in general;in the specific research methods,this paper mainly uses the combination of statistical analysis,interviews and questionnaires.The research samples in this paper mainly include the following three categories: 124 judicial documents relating to the expert assistant system;42questionnaires about the prosecutors and judges' knowledge of the expert assistant system;and 4 transcripts of interviews with person of the expert assistant system.The second part is the investigation and analysis of the operation of the expert assistant system.First of all,the overall applicability rate of the expert assistant system is low in practice.The reasons include the maneuverability of the system is not strong,and the judges,prosecutors,and parties in practice have conflicts with the system.Secondly,the expert assistant system is more suitable for cases of personal injury such as intentional homicide and intentional injury,because such cases involve the identification of death causes and the identification of injuries,which are the most likely to cause controversy in practice;the expert assistant system is more suitable for professional case.In such cases,judges often need to use professionals to solve professional problems to avoid the embarrassment of “outsidersreviewing internal problems”;the expert assistant system is more concentrated in personal injury cases,and at the same time Most of them are suitable for forensic clinical and forensic pathology identification.Thirdly,the practical cases of the expert assistant system are widely distributed in various provinces,regions,and levels of courts in the country,which is basically in line with the actual situation of criminal cases in China at this stage.Finally,the adoption rate of expert assistants' opinions is not high as a whole.This is caused by the disparity of possibilities raised between the prosecution and the defense and the adoption rate,and the quality of the opinions of the expert assistants.The third part is a self-examination on the problems that arise in the operation of the expert assistant system.First,in practice,the connotation of the "expert-assisted person" is biased in understanding,confusing the concepts of "expert-assisted person","person with specialized knowledge",and "expert witness".Second,in practice,the setting of the barriers to entry of the expert assistants is unreasonable.Only the "formal requirements" are used to examine the qualifications of the expert assistants,which brings the risks of "pseudo-experts into the court" and "true experts are rejected outside the courtroom." Third,the expert assistant's procedure for attending the court is incomplete,including the unsuccessful initiative standard of the procedure of the system.In practice,the grasp of the expert supporter's “necessity of appearing in court” presents a diversified feature;the expert assistant's position in the litigation is doubtful;The new forms required for the expert assistant's opinions to be displayed are limited;the expert assistant's written opinions' new display form are missing;the expert assistant's cross-examination effect in the trial is not satisfactory.In practice,some of the appraisers have not appeared in court.Even the appraisers appearing in court,the court verification was not really realized.Fourth,the attributes and effectiveness of the expert assistant's opinions are not clear.In practice,the nature of the expert assistant's opinions and the standard of proof are different,and the responding judicial documents' responses to the opinions of the expert assistants are also different.The fourth part is the idea of perfecting the expert assistant system.The improvement of the expert assistant system itself includes: First,the use of the term “expert-assisted person” is regulated,and the titles of various “persons with specialized knowledge” in the litigation are adjusted according to different functions.Second,the principle of "conformity of form and substance" is used to stipulate the qualifications of experts.Thirdly,the principle of“comprehensive and focused” is used to clarify the criteria for the examination of the necessity of the expert assistant to appear in court;it is clear that the expert assistant has an independent subject status in the litigation;the time and effect of the written opinion of the expert assistant are stipulated;the useful experience of “demonstrative evidence” in the Anglo-American legal system is used for reference;the cross-examination rules for expert assistants are established in the trial and verification procedures.Fourth,the opinions of expert assistants are given the qualifications for evidence;the standard of proof for the opinions of the expert assistants is made clear;and the rationality of the judgment documents is strengthened.The relevant supporting system for expert assistants mainly includes: firstly,establishing a library of expert assistants,encouraging and supporting the normative growth of self-disciplined industry associations;secondly,exploring the establishment of an expert assistance system from the perspective of judicial justice and third,establishing expert rights protection mechanism;The fourth is to strengthen the ability of judges to review appraisal opinions and cultivate "methodological judges".
Keywords/Search Tags:expert assistant, appraisal opinion, subject qualification, court procedure, opinion effect
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