Analysis Of The Evidence Ability Of Expert Assistant Opinion From Qihoo V. Tencent

Evidence ability is the condition of the evidence of litigation in accordance with the provisions of the law.It reflects the relationship between the evidence and the facts of the case.Therefore,it is only with the factual material of legality,objectivity and relevance that there is evidence.In the situation of identification system's dominance and small range which is not adapt to the need to civil dispute case,taking expert assistant opinion as evidence can make it into the category of evidence rules,so as to protect the litigation rights of parties.But the legality and objectivity of the expert assistant opinion has aroused wide discussion in the academic circles.Because the defects of the "statement of the parties" lead to the lack of legal support for the expert assistant opinion because it does not belong to the legal evidence.And limited to the process of being admitted to the proceedings by the parties,expert assistant opinion will inevitably tend to his party,which disobeys the objectivity of evidence the civil procedure law and evidence law required.Legality and objectivity are the root of challenge with evidence ability.Insisting to rid of the tendency of expert assistant opinion is unrealistic,and over-thinking the degree of objectivity of opinion will lead to the discussion of probative force.But from the view of evidence ability,by setting the corresponding safeguard mechanism and procedural rules to weaken this tendency maximally.It is possible to ensure the basic objectivity of the expert assistant opinion in qualitative aspects.As a prerequisite,it is necessary to clarify the independent status of the litigant participant,so that the expert assistant can be in a relative neutral position.On this basis to build a system from cross-examination to responsibility tracing system,and from qualification examination to endued with legal classification of evidence,to guarantee the objectivity and legality of expert assistant opinion.In order to curb expert assistant to provide defective even false opinion from its source,procedure of cross examination as a key part of the trial especially need to learn from Japan,which has absorbed the strengths of adversarial system in common law countries to find a balance between the adversary system and inquisitorial system.Through these achieve the goal of intensifying basic objectivity of expert assistant opinion as evidence.