Recently, a grass-roots court encountered a thorny criminal private prosecution case. Actually, the case is not complicated. Tang, the private prosecutor, accused Fan of intentional injury and demanded compensation for related economic losses. The evidence provided by the private prosecutor is two forensic certificates issued by the local public security bureau. It is puzzling that the two forensic expert certificates are less than two months apart, but the contents are diametrically opposite. The early appraisal conclusion was "minor injury", but two months later, the bureau actually issued a minor injury appraisal certificate for grade 9 disability. The defendant believed that the appraisal conclusion of the local public security bureau was unfair and applied for re-appraisal. The Intermediate People's Court made a forensic appraisal conclusion that constituted minor injuries. The grass-roots court accepted the appraisal conclusion of the Intermediate People's Court, ruled that the defendant Fan was not guilty, and compensated the plaintiff Tang in the incidental civil action for economic losses of more than 4,000 yuan. The private prosecutor refused to accept the appeal. During the second trial, the private prosecutor Tang asked for re-appraisal, and the Intermediate People's Court entrusted the hospital designated by the provincial people's government to re-appraise according to law. The appraisal conclusion was slight, and the Intermediate People's Court sent it back for retrial because of unclear facts and insufficient evidence ... A simple criminal private prosecution case became extremely complicated because of the different appraisal conclusions. The judge was at a loss in the face of the confusing appraisal conclusion, and the parties had no choice but to fall into litigation.
In fact, this situation is not uncommon in trial practice. The expert conclusion often becomes the decisive "focus" in the process of finalizing a case, which is directly related to the compensation or not, the amount of compensation and other issues, and directly affects the crime and non-crime, felony and misdemeanor in criminal proceedings. However, the current situation of imperfect judicial expertise mechanism, inconsistent expertise rules and obviously lagging legislation has seriously hindered the development of trial practice. Problems such as "wrangling identification", "repeated identification" and "artificial identification" are becoming increasingly prominent, and the voice of reforming the forensic identification mechanism is getting higher and higher.
(2) Analyze the current situation and disadvantages of China's judicial expertise system.
The practice of judicial expertise in China started late and developed quite slowly. In the early 1980s, China's judicial expertise system was mainly based on the principle of "mutual restraint and mutual supervision" among the public, procuratorial and legal organs, and corresponding judicial expertise institutions were established within the public, procuratorial and legal organs. So far, there is still no unified legislation for judicial expertise. Relevant laws and regulations include: Regulations on Handling Medical Accidents promulgated by the State Council in 2002, the new Criminal Procedure Law, Explanations on Several Issues Concerning the Implementation of the Criminal Procedure Law by the Supreme People's Court and other six ministries and commissions, the Criminal Technical Appraisal Rules of the Ministry of Public Security, and the Detailed Rules for Forensic Work of the Supreme People's Procuratorate, etc. The promulgation of these laws and regulations has played a certain role in standardizing the behavior of judicial expertise in China and promoting the development of judicial expertise. However, with the development of the situation, these scattered and unsystematic laws and regulations obviously cannot meet the objective requirements of the development of judicial expertise, and their disadvantages are constantly emerging. At present, there are no uniform and clear provisions on the qualification examination, appraisal standards and procedures, appraisal institutions, appraisal period and legal responsibilities of judicial appraisers. This not only sets obstacles for the trial work, but also adds shackles to the already weak development of forensic expertise. Someone wrote, "Because of the existence of multiple appraisal systems and the lack of strict legal provisions on appraisal review procedures, a very strange phenomenon has formed, and the most important' evidence' is the most random and changeable! Randomness and variability will be linked to dereliction of duty, dereliction of duty, perjury and even state compensation, which will make the forensic work at the grassroots level tread on thin ice ... "[1]
Specifically, the shortcomings of the imperfect judicial expertise system are: (1) incomplete legislation and lack of operability. Events such as "self-examination, self-investigation, self-examination, and self-examination" by the three organs of the Public Prosecution Law violate the scientific spirit and the principles of procedural law from time to time; It is not uncommon for the appraisal institutions to wrangle with each other, and the appraisal conclusions are defamatory and contradictory. (2) disorganization and lack of authority. At present, in addition to the top-down appraisal institutions established by public security organs, procuratorates and legal departments, there are also medical accident appraisal committees established by health administrative departments, appraisal centers of medical universities and political and legal colleges. Multi-system setup wastes human and material resources, alienates the quality of forensic identification, and greatly reduces the authority of forensic identification. (3) The evaluation rules are different and lack unity. The standards for guiding and standardizing the appraisal in various systems and regions are not uniform and mutually unconstrained, which leads to completely different appraisal conclusions in practice. (4) The admissibility of evidence is arbitrary and lacks impartiality. In the identification of expert conclusion, there is no legal standard, the judge's discretion is too large, and the fairness of the referee is questioned.
Second, the rational thinking of reconstructing the judicial expertise system.
Before considering the construction of judicial expertise system, we must analyze the essential characteristics of judicial expertise conclusions. Forensic expert conclusion is a kind of evidence material, not a natural "evidence", which may not have probative force, so it cannot be directly accepted, and it can be called "quasi-evidence"; Appraisal conclusion is a special conclusion that can only be drawn through rigorous scientific activities and scientific means and methods, and it is scientific; At the same time, the appraisal conclusion must be legal evidence that can only be recognized after strict examination by legal procedures, and it is legal. It can be seen that the conclusion of judicial expertise, as "quasi-evidence", is both scientific and legal. The construction of appraisal system must ensure the realization of the essential characteristics of appraisal conclusion, which is the embodiment of the value of appraisal system in practical operation. In other words, the purpose of establishing a scientific appraisal system is to ensure that the scientific value and litigation value of appraisal conclusions can be realized in litigation. [2]
The judicial expertise system does not meet the scientific and legal requirements of the appraisal conclusion at the initial stage. Therefore, in the process of the reform of judicial expertise system, the focus of people's attention is to meet the scientific and legal requirements of expert conclusions. At present, there are four main theories about reconstructing the judicial expertise system, namely monism, dualism, maintaining the status quo and pluralism.
Today, the monism that represents the voice of most forensic doctors is to establish a unified, efficient, independent and fair forensic identification system. They advocate the establishment of a forensic work Committee or a general administration of forensic medicine in the central government, which is subordinate to the Legal Affairs Committee. There are 1 or two scientific research institutions under the Forensic Medicine Working Committee or the General Administration to conduct key scientific research and consultation on difficult cases. At the same time, corresponding forensic institutions are set up in provinces (cities, autonomous regions), regions (prefecture-level cities) and counties (county-level cities) to undertake different tasks respectively.
"Dualism" advocates the establishment of judicial expertise centers in public security system and procuratorial system respectively; Or merge the forensic identification centers of public security and procuratorial organs into one identification center and build another social identification center.
Most of those who hold "maintaining the status quo" are conservatives, fearing that a large number of changes will not be conducive to a smooth transition, so they advocate local adjustments on the basis of the existing forensic appraisal system, such as strictly examining the qualifications of appraisers and setting up supervision procedures.
"Pluralism" will be discussed in detail below.
Analyzing the above viewpoints one by one, we can easily find that all three theories except "pluralism" have various disadvantages, so they cannot be the final choice mode of judicial expertise system.
The unified forensic identification system has three characteristics, namely, high concentration, strict subordinate relationship and clear division of labor. The fundamental defect of this system is that it can't guarantee the scientific nature of the judicial expertise conclusion, which makes the legitimacy of the conclusion lose its reliable premise. First of all, the "unified" system is easy to form an administrative subordinate relationship and the industry circle is narrow. The singleness of appraisal institutions limits the parties' right to choose and cannot meet the needs of litigation democracy. In addition, the malpractice of industry monopoly and the influence of subjective and human factors can not guarantee the scientific nature of the judicial appraisal conclusion, and the phenomenon of distorted appraisal conclusion occurs from time to time. Secondly, "monism" is not conducive to the development of forensic medicine, and fundamentally destroys the foundation on which the scientific nature of expert conclusions depends. This is mainly due to the high concentration of forensic identification mechanism under the "unitary system", which deprives political and legal colleges and medical colleges of the possibility of participating in forensic identification and greatly weakens the experimental basis and economic conditions of forensic teaching and research. In the long run, the forensic team will not be able to ensure the enrichment and reserve of the reserve forces, and the long-term development of forensic medicine will be affected. It can be seen that the "unified" system can not fundamentally avoid the current phenomenon of "repeated identification" and "artificial identification", so the reform from the current system to the "unified system" will be unnecessary.
The original intention of the holder of "Dualism" is to balance the level of litigation democracy and scientific research, but his "Dualism" actually caused the inevitable "lame" phenomenon. If only two appraisal centers are set up in the public security system, it will not be able to meet the needs of the public, and the work pressure of the public security system can be imagined, and the appraisal quality is difficult to guarantee; However, if the appraisal centers within the public security and procuratorial organs are combined into one, the restriction and balance between the public security and procuratorial organs can not be guaranteed, then corruption in the appraisal can not be avoided, and the scientificity and fairness of the appraisal conclusion will naturally be difficult to achieve.
As for the theory of "maintaining the status quo", it can no longer meet the needs of current reform. Reform is bound to bring "pain", and the status quo cannot be maintained because of fear of "pain". The strict examination of the appraiser's qualification and the increase of the appraisal procedure proposed by him are tantamount to scratching their boots, and it is difficult to really play a role.
Third, establish a foreign judicial expertise system.
Compared with China, many foreign countries have established judicial expertise systems for many years and accumulated a lot of valuable experience. Today, with the internationalization and integration of the rule of law, it is a good way to reform the law in China to analyze and learn from foreign advanced and common practices, and critical absorption is one of the legislative methods in China.
(1) Anglo-American judicial expertise system.
The forensic identification system in Britain consists of three parts: coroner, forensic pathologist and police surgeon. If considered in connection with litigation, it can be roughly divided into two relative systems: one is a forensic identification system serving the police, and the other is a forensic identification system for the public under the supervision of the Ministry of the Interior. Of course, if the police really need it, it does not rule out that the police will benefit from this system. [3] The formation of these two forensic expertise systems is closely related to the adversarial litigation structure in Britain. In Britain, there is no clear distinction between witness and expert witness, witness testimony and expert conclusion in evidence law. Experts (expert witnesses) are usually hired by the parties, so experts from both sides of the defense often put forward tit-for-tat expert opinions on the same issue, and lawyers from both sides can also cross-examine the expert witnesses. This will help to confirm the scientific and legal nature of the appraisal conclusion.
In addition, Britain adopts the expert witness qualification system. No matter the coroner, forensic pathologist or police surgeon, they must meet certain qualifications and experience restrictions to be competent, which ensures the specialization and expert of expert witnesses from the system. The United States, like Britain, also implements a diversified assessment system. The largest forensic identification system is the police system. In addition, many universities and scientific research institutions also have forensic medicine laboratories. Some individuals have also set up their own forensic laboratories to provide scientific appraisal services for defense lawyers in criminal cases, and of course they also provide services for the police. The United States also implements the expert witness system, but the qualification of expert witnesses is not determined by hardware measures such as examinations, but by judges and juries according to specific circumstances. [4] These provisions are consistent with the adversarial litigation structure in the United States.
(2) French judicial expertise system.
The French police system has a forensic appraisal agency. In the field investigation that requires physical evidence identification and autopsy, the prosecutor or the judicial police may designate personnel with corresponding professional qualifications to participate in the field investigation; If the appointee is not an expert registered by the Supreme Court or the Court of Appeal, he must swear in writing to help the judiciary with his own personality and conscience. [5] It can be seen that France has not explicitly stated that it implements "diversification", but it implies that the appraisal system is not single, because the person outside the registered appraiser list is an uncertain concept, indicating that there are other appraisal institutions or natural persons besides the registered appraiser list. France implements the system of appraisal right, and whether to conduct appraisal in a case is decided by the criminal pre-trial judge. Appraisal activities are operated by appraisers, whose qualifications are usually determined in advance according to administrative regulations and decided by the investigating judge, which also reflects the characteristics of judge authoritarianism in French litigation structure.
(3) Japan's judicial expertise system.
The forensic identification system in Japan presents various forms, including the supervision medical system, the police medical system, the autopsy system of university professors and the scientific police identification system. [6] Japan implements the appraiser qualification examination system. Generally speaking, the qualification requirements of Japanese appraisers are higher than those of Britain.
It can be seen that the similarities between the judicial expertise systems of Britain, the United States, France and Japan are as follows: (1) The implementation of diversified judicial expertise systems conforms to the characteristics of litigation structures in various countries. (2) The police system has established an independent assessment system from top to bottom. (3) The court has no separate forensic institution and full-time forensic doctors. (4) Various countries have detailed regulations on the qualification examination of appraisal institutions and appraisers.
Fourthly, the idea of "diversification" of China's judicial expertise system.
Drawing lessons from the successful practical experience of judicial expertise systems in various countries and combining with China's current national conditions, the author believes that China's judicial expertise system should be diversified. The basic framework of "diversification" includes institutions that provide forensic expertise for society and institutions that provide forensic expertise for national interests. [7] The former includes the forensic center of higher political and legal colleges or medical universities, hospitals or private forensic departments. To provide forensic expertise in civil proceedings; The latter includes forensic expertise institutions of public security and procuratorial system, which conduct forensic expertise in criminal proceedings. When encountering technical problems that are difficult to solve, you can also entrust a forensic appraisal institution in a university to conduct appraisal.
Specifically, the supporting requirements of the "diversified" judicial expertise system are: (1) The current judicial expertise institutions in the court system should be abolished, or even if they are retained, their tasks should be changed to advisory nature, providing technical support for the judges of this court or this system and no longer engaging in expertise activities. This is because the forensic doctor in the court only has a dual identity, that is, he is both a member of the court and a witness of one party, which will inevitably make the judge's ruling biased and the scientific and legal testability of the expert conclusion will inevitably decrease. (2) The public security and procuratorial departments also retain appraisal institutions. Appraisal centers of public and procuratorial organs are set up to safeguard national interests. In some major criminal cases, the existence of internal appraisal institutions is conducive to the confidentiality of work, and the existence of both is conducive to the restriction and balance of power. (3) The judicial authentication institution of the judicial department should be changed to a private institution. Since the agency has been engaged in appraisal activities for the society, it does not represent the country in function, and it is in line with the laws of market economy to change to non-governmental operation, which is also conducive to saving manpower and material resources and reducing the financial burden of the country. (4) Eligible hospitals can engage in forensic identification activities. The second paragraph of article 120 of the new criminal procedure law stipulates that "the medical appraisal of personal injury is controversial and needs to be re-appraised, or the medical appraisal of mental illness is carried out by a hospital designated by the provincial people's government." This is the legal basis for hospitals to participate in forensic identification. There are two meanings: only a few hospitals with high medical level designated by the provincial people's government can carry out forensic identification, and such hospitals can only carry out forensic identification on specific forensic matters. (5) Forensic scientific research centers of medical universities and political and legal colleges can conduct forensic identification. Generally, such centers have a high level of scientific research and can engage in specialized difficult cases or corpse inspection. Under certain conditions, allowing them to become the main body of forensic medicine is conducive to the most rational use of resources and the development of forensic medicine teaching, thus providing a talent pool for forensic medicine in China.
In the setting mode of forensic identification system, we can learn from foreign practices and set up different number of identification centers according to administrative divisions. This can not only rationally realize the optimal allocation of judicial expertise resources, but also meet the needs of litigation democracy and guarantee the parties' right to choose, thus realizing the scientific, independent and professional judicial expertise system. (1) County-level areas can establish a trinity network identification model of public security, procuratorial work and hospital. The appraisal resources diverted from the courts and judicial administrative organs can be enriched into the public security system. The forensic appraisal institution of the hospital can be merged with the technical appraisal committee of medical accidents in the local area. When encountering a particularly difficult case, some experts can be transferred from the three appraisal institutions to form a temporary appraisal comprehensive team, thus forming a scientific pattern of tripartite confrontation and integration. (2) More than three assessment agencies can be established in the prefecture (city) or above. In addition to the two appraisal institutions within the public security department and the medical examination department, two or so hospital forensic appraisal institutions can be set up to alleviate the work pressure caused by the increase in the number of medical accidents and forensic appraisal, and at the same time expand the parties' right to choose. Of course, the comprehensive technical strength of these two hospitals must be absolutely excellent, and the appraisal institutions should also absorb outstanding professionals from other hospitals in the same area. The local health administrative department is responsible for the specific staffing of the institution, and the court is responsible for supervision and coordination. In operation, a talent database can be established through computer regional networking to realize regional talent sharing. Conditional areas, which mainly refer to areas with higher political, legal and medical colleges, can set up scientific appraisal centers according to their own forensic strength, and when necessary, they can accept the entrustment of courts, parties or other forensic appraisal institutions to engage in the appraisal of difficult and complicated cases.
When setting up appraisal institutions according to administrative divisions, some people advocate setting up three appraisal institutions in county-level areas, four in prefecture-level areas and five in provincial capitals. I don't think it is necessary to make such hard and fast rules, because the development between regions is very uneven. In some areas, there is no need to set up five appraisal institutions, and in some areas, the scale of five appraisal institutions is not reached. Too rigid and rigid rules may be counterproductive, resulting in a waste of human resources, and too cumbersome institutions are not conducive to scientific and efficient appraisal.
In short, the "diversified" judicial expertise system is an open, healthy and scientific system, which can avoid the bureaucracy and administration of appraisal institutions, help to create an academic and scientific research atmosphere of "a hundred schools of thought contend and a hundred flowers blossom", and also guarantee litigation democracy, reduce litigation costs and improve litigation efficiency. The divorce (revocation) of the court from the forensic appraisal institution is also conducive to ensuring the neutrality of the judge, thus ensuring the fair acceptance of the appraisal conclusion and making a reasonable ruling. In a word, the "diversified" judicial expertise system is the best choice to realize the scientific and legal requirements of expert conclusions.
Five, several related issues.
(1) Supervising judicial expertise.
Judicial expertise is a highly technical and professional activity, and the conclusion of judicial expertise often plays a very important role in the judgment of civil and criminal cases. Therefore, it is necessary to strengthen the supervision of judicial expertise activities to prevent abuse of expertise and violation of procedures.
To be on the safe side, China can implement the expert right system and expert qualification system. The right of expert evaluation is held by the presiding judge or collegial panel. When entrusting a statutory appraisal institution to conduct appraisal, the appraisal candidates provided by the appraisal institution shall be strictly examined, and the appraisal can only be carried out if they have legal qualifications. It is worth mentioning that, in addition to reviewing the candidates provided by the hospital appraisal institution, the judge should also review the forensic qualification of the public security system. In this way, the double certification insurance of certification institutions and appraisers' qualifications is realized. Here, there is another problem. The judge has the right to decide the appraisal right, but who will supervise the judge's decision on whether the appraisal is timely, whether the appraisal conclusion is legal and whether the withdrawal rule is followed? At present, solving this problem can only rely on the supervision of the internal political work and discipline inspection departments of the court, as well as the supervision of NPC and CPPCC. Once the parties have objections, they can report to the discipline inspection department or the procuratorate of the hospital. News media can also play an active role in public opinion supervision.
(2) Participation mechanism can be introduced into judicial expertise, and defense procedures can be applied.
In the process of judicial expertise organized by public and procuratorial organs, judges and courts should have the right to participate. Appropriate intervention of the presiding judge can strictly supervise the procedure, thus effectively avoiding the "takenism" or "arbitrariness" when accepting evidence. Both the prosecution and the defense may also apply for forensic identification. Both parties should have the right to know, the right to be present and the right to express their opinions on the appraisal activities. If any objection is found, the two sides can also argue. In view of the lack of medical professional knowledge, people with specialized knowledge can be entrusted to participate in the forensic identification process, but the entrusted object must have no interest in the case, judges and appraisers, and it cannot affect the normal identification process of the case. By introducing the expert defense system, the conclusion of judicial expertise will be more scientific, reasonable and fair.
(3) the appraisal period and the legal liability of the appraiser.
Judicial expertise is an important link in the litigation process. In the process of judicial expertise, the litigation period is naturally interrupted. Generally speaking, forensic expertise does not necessarily lead to cases exceeding the trial limit. But objectively, if the appraisal time is too long, it will cause the case to drag on for a long time, and make the parties involved in the lawsuit, which is not conducive to improving the efficiency of the lawsuit. However, at present, there are no laws and regulations on the time limit of forensic identification except for the time limit of medical malpractice identification in China. The author advocates that the judicial authentication institution must make an authentication conclusion within 45 days from the date of receiving the authentication power of attorney, and it can be extended for two months after special circumstances are submitted to the audit Committee for discussion and approval.
At present, there are still unclear responsibilities and rights in judicial expertise. In fact, the conclusion of forensic expertise plays a vital role in conviction, sentencing and even life and death. If the forensic expert's conclusion is wrong, how will the responsibility be investigated? Therefore, the author thinks that the responsibility system of judicial expertise should be introduced, and the responsibility of judicial expertise should be transferred from the unit responsibility to the natural person responsibility. Judicial expertise shall be collegiate, and all appraisers involved in the appraisal shall sign their names. [8] The appraisal book shall truthfully record different opinions, including the reservations of the rejected minority, but there should not be only one opinion. The chief appraiser is responsible for the authenticity and legality of the appraisal book. In the determination of responsibility, the principle of presumption of fault should be applied, that is, as long as the appraisal conclusion is wrong, unless the appraiser has evidence to prove that he is not at fault, the appraiser should be responsible for the damage caused by the wrong appraisal conclusion, and if the appraiser is intentional, he should also be investigated for criminal responsibility.