The relevant content of the Criminal Procedure Law stipulates: "Anyone who knows the case has the obligation to testify. People who are physically and mentally defective or young, can't distinguish between right and wrong, and can't express correctly can't be witnesses. "
The relevant content of the Administrative Punishment Law stipulates: "If a mental patient commits an illegal act when he cannot identify or control his own behavior, he shall not be given administrative punishment, but his guardian shall be ordered to strictly guard and treat him. Intermittent mental patients should be punished for violating public security management when they are mentally normal. "
Two, the judicial authentication institutions to make an appraisal how to deal with the conclusion of the examination and appraisal, you can start from the following four aspects:
(1) Entrusting procedures for judicial expertise.
The entrustment procedure of judicial expertise is stipulated by law, for example, the materials on which the expertise is based must first be cross-examined by both parties. After cross-examination, the appraisal materials are true, complete and sufficient, which are relevant to this case. If there is no cross-examination, then the entrustment procedure is illegal. If the victim entrusts the judicial appraisal unilaterally, he may raise an objection to the entrustment procedure of gas and apply for re-appraisal.
(2) Evaluation procedures of evaluation agencies.
The qualifications of appraisal institutions and appraisers shall comply with the law. The judicial appraiser conducts the appraisal independently, objectively and impartially according to law, and is not subject to any illegal interference by any individual or organization. The appraiser shall implement legal provisions such as withdrawal. There are many provisions in the judicial expertise procedure, including those in the Supreme People's Court. Among them, the "General Rules of Judicial Appraisal Procedure" promulgated by the Ministry of Justice has made clear legal requirements for all aspects of judicial appraisal, from accepting entrustment to issuing appraisal conclusions for reference and screening.
(3) The appraisal standard is applicable.
Judicial expertise often involves professional issues, but there is no uniform standard for many professional issues, and the application of different standards determines the great differences in the conclusions of expertise. This is the actual situation of judicial expertise. But ordinary parties don't know this, and often have to reluctantly accept the conclusion, just because the appraisal conclusion is made by experts, and they don't know what standards the appraisal should be based on, and they don't know that there are many standards to choose from. So what standards should be used for a professional problem? It can be said that different people have different opinions. Moreover, the same appraisal standard may be inconsistent in understanding and application. Experts also have mistakes in understanding and application. So I think it is very important to know the specific appraisal conclusion, deeply understand the case and be familiar with various appraisal standards. Therefore, it is very important to advise the parties to find a professional lawyer who is proficient in judicial expertise. Lawyers can help you make a substantial contribution to this key issue. For example, lawyers have a lot of skills and experience in judicial expertise, which can often win by surprise, making the appraisal conclusion more conducive to the needs of clients.
(four) the ability to identify the conclusion evidence.
In China's judicial trial practice, judges usually exaggerate the scientific nature of expert conclusions, ignore the "opinion" attribute of expert conclusions, and regard the "opinion" evidence that should be strictly examined as "conclusion", which is directly applicable to the judgment of case facts. In this case, the abuse of expert advice is inevitable. However, we can find from the National People's Congress Standing Committee (NPCSC)'s "Decision on the Management of Judicial Appraisal" that the relevant content clearly stipulates that "judicial appraisal refers to the activities in which an appraiser uses science and technology or specialized knowledge to appraise and judge the specialized issues involved in litigation and provide expert opinions", which not only clarifies the concept of judicial appraisal, but also points out the nature of the appraisal conclusion. In other words, the expert conclusion is actually just an expert opinion provided by the appraiser to the court. One of the meanings of opinion and suggestion is that it only represents one opinion, which may be right or wrong, so the expert conclusion has no predetermined effect. Expert opinions can only become the evidence for the judge to make a judgment if they have the evidence qualification stipulated by law and have been cross-examined and debated by the court. That is to say, the expert conclusion is actually an "expert opinion" which has been restricted by the court procedure and has the ability of evidence. The expert conclusion is the result of the application of the expert opinion. Therefore, it is very important to conduct full and effective cross-examination. If a problem is found, it should be fully exposed and its evidence ability should be exposed. In addition, for some complicated problems, we must insist that the appraiser appear in court for cross-examination, otherwise the appraisal conclusion cannot be recognized. For example, in dealing with many cases involving appraisal, I will find that the appraisal conclusion and the court judgment in China have a common feature, that is, they draw conclusions quickly and lack analysis and argumentation. For professional problems, if there is no argument, then the conclusion is obviously unconvincing. Therefore, the parties concerned should not let go of such a key link, and should pursue rights protection according to law.
Three. Procedure for Judicial Appraisal of Mental Illness (1) The appraisal work will be completed within 15 working days after the center generally accepts it, and a complete and standardized appraisal report will be issued.
(two) before the center carries out the appraisal, the appraiser should read the examination paper in advance to understand the case and make the necessary verification. The diagnosis of diseases should be clear and scientific, and the evaluation of various legal abilities and causality should be accurate.
(three) the judicial appraisal of mental illness shall be presided over by the director of the office or the designated personnel of the center, and there shall be no less than three people (including no less than two appraisers).
(four) after the conclusion of the judicial appraisal of mental illness is made, the judicial appraisers participating in the appraisal shall sign the appraisal opinions, and if there are different opinions, they shall be recorded.
(five) the conclusion of the judicial appraisal of mental illness is made in the form of "Appraisal Document Review Opinion"; It will take effect after being signed by the appraiser and stamped with the official seal of the Center.
(six) the judicial appraisal of mental illness shall be completed within the statutory time limit, and the examination opinions of the appraisal documents shall be served on the entrusting organ or the applicant.
Judicial expertise of mental illness is also to ensure judicial justice and ensure that the interests of mental patients are not harmed. The fair and just result of psychiatric judicial expertise is an important guarantee of judicial justice, and it is also a strong evidence for judges to finalize the case and lawyers to defend. The above is my introduction to the legal basis for applying for psychiatric judicial expertise, hoping to help you.