Give it to someone else for adoption!
The so-called expert conclusion refers to the conclusion made by the appraiser by using science and technology or specialized knowledge to identify and judge the specialized issues involved in the case. Article 42 of the Criminal Procedure Law of People's Republic of China (PRC) determines that expert conclusion is an independent form of evidence in criminal proceedings. Expert conclusion plays an important role in criminal proceedings and is an important basis for judges to find out the facts and judge according to law. From a scientific point of view, there is only one correct appraisal conclusion. "Different appraisal conclusions in the same case can only show that there is a deviation in the subjective and objective aspects of appraisal. Re-appraisal is undoubtedly the only way to test and correct the wrong appraisal conclusion and draw the correct conclusion. Therefore, the appraisal systems of various countries provide for re-appraisal without exception. " . The so-called re-appraisal means that when the parties, defenders and agents ad litem have objections to the appraisal conclusion of a case, they request the judicial organ to entrust an appraiser with the same appraisal matter, or the judicial organ entrusts an appraiser with the disputed appraisal conclusion ex officio. Looking at the relevant laws of criminal procedure in China, there are few provisions on re-appraisal, which are not feasible, and even there are legislative blind spots, which leads to many difficult problems in judicial practice. The author intends to make a superficial discussion on some problems of re-appraisal in criminal proceedings and the idea of legal perfection in order to attract more attention.
First, the start-up procedure of re-appraisal.
The re-appraisal initiation procedure in China's current criminal procedure has the following characteristics:
1. There are many start-ups of the re-qualification program. In China's criminal proceedings, the main body of the re-appraisal procedure is not only the court, but also the public security organs and procuratorial organs. The legal provisions on starting the re-appraisal procedure are scattered in China's criminal procedure law, relevant judicial interpretations and ministerial regulations. For example, article 12 1 of China's Criminal Procedure Law stipulates that "the investigation organ shall inform the criminal suspect and the victim of the appraisal conclusion used as evidence. If the criminal suspect or victim applies, he can make supplementary appraisal or re-appraisal. " Article 159 of the law stipulates: "During the court hearing, the parties, defenders and agents ad litem have the right to apply for notifying new witnesses to appear in court, for obtaining new material evidence, and for re-appraisal or inquest. The court shall make a decision on whether to approve the above application. " "the Supreme People's Court on implementation
2. There are different conditions for the public, the procuratorate and the law to start the re-appraisal procedure.
As can be seen from the above legal provisions, the conditions for the procuratorial organ to start the re-appraisal procedure are as follows: the criminal suspect and the victim have objections to the appraisal conclusion, and the re-appraisal procedure can be started with the approval of the procurator-general; The conditions for the public security organ to start the re-appraisal procedure are: the criminal suspect and the victim apply for objection to the appraisal conclusion, and the re-appraisal procedure can be started with the approval of the person in charge of the public security organ at or above the county level. Both of them do not emphasize the examination of whether the objection is valid or not. There are two situations in which the court starts the re-appraisal procedure: the first is that the court agrees to start the re-appraisal procedure for the parties and defenders who apply for re-appraisal in the trial and think that it may affect the fact finding of the case. It should be noted that the court thinks that the original expert conclusion "may affect the determination of the facts of the case", which is a relatively abstract and flexible concept, which is not convenient for judges to master in judicial practice; Second, if the judge has doubts about the appraisal conclusion, he can immediately start the re-appraisal procedure.
The current situation of starting the re-appraisal procedure in criminal proceedings in China is that both the public prosecutor and the law have the right to start the re-appraisal procedure, but the parties have no right to start the re-appraisal, and they only have the right to apply for supplementary appraisal and re-appraisal. The author believes that the current situation of the start-up mode of re-appraisal procedure in criminal proceedings in China obviously violates the principle of equality between prosecution and defense; On the other hand, the public security organs and procuratorial organs give them the right to start the re-appraisal procedure after the appraisal conclusion is made, which easily leads to "multiple appraisal" and "repeated appraisal", and also increases the difficulty for the people's court to accept the appraisal conclusion. Therefore, reforming the current appraisal system and improving the defendant's starting ability have become the unanimous voice of the theoretical and judicial practice circles in China. Some scholars have put forward the target model of "taking authority as the basis and litigation as the supplement". China has a long history of criminal procedure legal system and civil legal system. Judging from the criminal procedure legislation of civil law countries, the criminal procedure laws of Italy, Germany and France clearly stipulate that only judges have the right to decide whether to start the appraisal. Therefore, the author believes that China can learn from the criminal procedure law system of the civil law system, improve the criminal procedure law and improve the starting mechanism of the re-appraisal procedure.
I think it should be improved from the following aspects: 1. It is suggested to amend the Criminal Procedure Law to clarify that both the prosecution and the defense have equal rights to apply for re-appraisal in criminal proceedings, and stipulate that only the people's court has the right to decide to start the re-appraisal procedure. The author believes that breaking the convention that the public, the procuratorate and the law have the right to start the appraisal procedure is conducive to ensuring the neutrality and fairness of the re-appraisal procedure. 2. It is suggested that legislation should unify the starting conditions of the re-appraisal procedure. Analyzing the reasons for starting the re-appraisal procedure in the current judicial practice, it is true that the original appraisal conclusion is wrong, and many parties apply for re-appraisal for their own interests, which is not necessarily unscientific and unfair. The current law does not require the applicant to provide any evidence, which will easily lead to the re-appraisal procedure being started at will. The author believes that it is necessary to protect the equal and legal rights of both the prosecution and the defense to apply for re-appraisal, and also to legislate to prevent the abuse of the right to apply for re-appraisal. Therefore, it is imperative to unify the starting conditions of the re-appraisal procedure. The author thinks that the criminal procedure law should be improved by legislation, and the starting conditions of the re-appraisal procedure should be unified, that is, it is stipulated that the people's court can start the re-appraisal procedure according to the application of both the prosecution and the defense or ex officio: (1) the appraisal institution or appraiser does not have the relevant appraisal qualification, or the appraiser does not have a quorum; (2) The appraisal procedure is illegal; (three) the contents of the appraisal conclusion are obviously wrong, or contradict with other evidence and facts, and the evidence is obviously insufficient; (4) The appraisal materials are false or the instruments and methods used for appraisal are defective; (5) The appraiser should have avoided it without avoiding it; (6) There is evidence to prove that there are factors that affect the accurate identification of appraisers; (seven) there is evidence to prove that the appraiser is practicing fraud; (8) The existing science and technology have been able to prove that the original identification method and conclusion are obviously wrong. In addition, it should be clear that if the original appraisal conclusion can be solved by supplementary appraisal, re-appraisal or supplementary cross-examination, it will not be re-appraised.
Second, the re-appraisal organization and cost burden.
1, determination of re-appraisal institution.
Article 120 of China's Criminal Procedure Law only 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 ..." For those who enter the re-appraisal procedure for other reasons, the current criminal procedure law does not specify the re-appraisal institution.
On February 28th, 2005, the NPC Standing Committee made the Decision on the Administration of Judicial Appraisal (hereinafter referred to as the Decision). Article 7 of the decision stipulates that "an authentication institution established by the investigation organ according to the needs of investigation work shall not accept social entrustment to engage in judicial authentication business. The people's courts and judicial administrative departments shall not set up appraisal institutions. " Article 8 stipulates that "there is no subordinate relationship between appraisal institutions; Entrusting an authentication institution to engage in judicial authentication business is not limited by geographical scope. The appraiser shall engage in judicial authentication business in an authentication institution. " The "Decision" does not clearly stipulate which institutions are re-identified.
In judicial practice, different places have different understandings about the choice of re-appraisal institutions. Some judicial organs adopt the method of "combining the selection of parties with the appointment of judicial organs", that is, the parties (including criminal suspects, defendants, victims, etc.) first negotiate to determine the appraisal institutions and appraisers with appraisal qualifications; If consultation fails, it shall be designated by the judicial organ; Some judicial organs directly entrust appraisal institutions with appraisal qualifications to conduct re-appraisal, without soliciting opinions from both the prosecution and the defense.
The author believes that since there is no subordinate relationship between appraisal institutions, all appraisal institutions with appraisal qualifications can be included in the scope of re-appraisal institutions (except those who have made appraisal conclusions on the same matter before). The author suggests perfecting legislation and stipulating that the determination of re-appraisal institutions should follow the principle of combining "statutory" with "fully embodying the interests of both parties".
(1) Where a hospital designated by the provincial people's government needs to be re-appraised according to law: a. The medical appraisal of personal injury is controversial and needs to be re-appraised; B. medical identification of mental illness; C. medical certificates for prisoners seeking parole.
(2) Respect the right of both parties (including procuratorial organs, criminal suspects or defendants, victims or appraisers) to choose re-appraisal institutions under the legal framework. As the appraisal institutions are not subordinate to each other, both the prosecution and the defense can determine the re-appraisal institutions through consultation and other means within the scope prescribed by law. In the specific operation, the following methods can be considered: a. Re-appraisal institutions are selected through consultation among procuratorial organs, criminal suspects or defendants, victims or appraisers; B. If one party proposes several candidate re-appraisal institutions, the court may ask the other party for advice; C the people's court shall select a number of qualified appraisal institutions, which shall be selected by both the prosecution and the defense; D if both parties are not satisfied with the above methods, the people's court will randomly select the database of judicial authentication institutions. The author believes that the above measures can put an end to the "black-box operation" that may occur in the appraisal process and ensure the fairness and objectivity of the appraisal conclusion.
2. Re-recognize the problem of cost burden.
China's current criminal procedure law and relevant judicial interpretations do not stipulate who should pay the re-appraisal fee. In judicial practice, practices vary from place to place. Due to the lack of funds for handling cases, some public security organs, procuratorial organs and courts adopt the method of "who applies for re-appraisal", that is, the relatives of the criminal suspect or defendant who applies for re-appraisal, the victim himself or relatives pay the re-appraisal fee; Some prosecutors and laws directly require relatives of criminal suspects or defendants, victims themselves or their relatives to pay re-appraisal fees.
The author believes that in criminal proceedings, the state judicial organs exercise judicial power on behalf of the state, expose crimes, prove criminal facts and punish crimes according to law. Re-evaluation in criminal proceedings may play a vital role in the conviction and sentencing of defendants. In judicial practice, the practice of paying the re-appraisal fee by the relatives of criminal suspects and defendants is inevitably suspected of "affecting the fairness of the re-appraisal conclusion"; It is against the original intention of criminal procedure legislation to pay the re-appraisal fee by the victim or his relatives. Looking at civil law countries, the criminal procedure laws of Germany and Italy clearly stipulate that the compensation and remuneration expenses of appraisers shall be paid by the state. ④
Therefore, the author proposes to improve the criminal procedure law and make it clear that the appraisal fee (including the re-appraisal fee) in criminal proceedings is paid by the state.
Third, the limit of the number of re-appraisals.
The current criminal procedure law and relevant judicial interpretations in China are not clear about the restrictions on the number of re-appraisals. Repeated identification is a prominent problem in current judicial practice, which can be said to be a concentrated expression of many disadvantages of the current judicial identification system. In addition, have the second trial and retrial procedures been re-appraised? There is no explicit provision in the current criminal procedure law and related judicial interpretation, which cannot be said to be an omission in legislative technology. Judging from the length of China's current criminal procedure law, the content of "re-appraisal" exists in "Part II, Chapter II, Investigation, Section VII Appraisal" and "Part III, Chapter II, First Instance Procedure, Section I Public Prosecution Case", but it is not found in the legal provisions of "Second Instance Procedure" and "Trial Supervision Procedure". However, in judicial practice, many criminal cases have started the re-appraisal procedure in the second instance procedure and retrial procedure.
Because there is no legal restriction, repeated identification of the same problem (including repeated identification by different judicial organs such as public security and procuratorial law, as well as repeated identification by the court in the first, second or retrial procedures) has resulted in multiple expert conclusions, which not only can not rule out the contradictions between expert conclusions, but also will affect the judge's judgment and make the problem more complicated. Such as "Lu Bocheng v. Hu's intentional injury compensation case", there are many appraisal agencies involved. Around the victim's injury, judicial expertise departments at all levels have conducted eight appraisals and made eight appraisal conclusions. Another example is the case of Wu Saiyang v. Wu criminal private prosecution in Pujiang County, Jinhua City, Zhejiang Province, which lasted for 7 years. After two remands and one retrial, Wu went from innocence to guilt and then to innocence, which played a decisive role in three judicial appraisals. ⑦
Thus, unlimited re-appraisal can easily lead to protracted cases, bring litigation fatigue to the parties and waste judicial resources, which not only damages the objectivity, scientificity and authority of judicial appraisal, but also greatly damages judicial authority. Therefore, it is extremely urgent to improve legislation, limit the number of re-appraisals, and ensure the objectivity, impartiality and authority of judicial appraisal.
The author thinks that the criminal procedure law should be revised first, and the length of re-appraisal procedure should be standardized. The contents of "appraisal" and "re-appraisal procedure" can be divided into a separate section and refined. Secondly, it should be clear that the re-appraisal is limited to two times, whether based on the application of both the prosecution and the defense or directly decided by the people's court (including the re-appraisal in the first and second retrial procedures), so as to avoid the complication of the appraisal conclusion caused by the endless re-appraisal of the case.
Fourth, re-evaluate the calculation of the trial limit after starting.
The author thinks that the calculation of the trial limit after the re-appraisal procedure is started has defects in legislative technology.
Article 122 of China's Criminal Procedure Law stipulates: "The time limit for psychiatric appraisal of criminal suspects is not included in the time limit for handling cases." Article 33 of the Supreme People's Court's "Several Provisions on Strictly Implementing the Time Limit System of Case Trial" also stipulates: "... According to the above provisions (refer to Article 122 of the Criminal Procedure Law), except for the time of psychiatric appraisal of criminal suspects and defendants, other appraisal time is included in the time limit for handling cases. For cases that cannot be concluded due to reasons such as long appraisal time and expiration of the time limit for handling cases, the compulsory measures for criminal suspects and defendants in custody shall be changed to bail pending trial or residential surveillance from the date of expiration of the time limit. " Article 156 of the Interpretation stipulates: "If a party or defender applies to notify a new witness to appear in court, obtain new evidence and apply for re-appraisal or inquest, he shall provide the name of the witness, the place where the evidence is stored, explain the facts of the case that need to be proved, and ask for the reasons for re-appraisal or inquest. According to the specific circumstances, if the judge thinks that it may affect the determination of the facts of the case, he shall agree to the application and announce the postponement of the trial; If it disagrees, it shall inform the reasons and continue the trial. The time for postponing the trial in accordance with the provisions of the preceding paragraph shall not exceed one month, and the time for postponing the trial shall not be included in the trial limit. "
The author's understanding of the above provisions is: after the re-appraisal procedure is started, if it is directly based on the relevant provisions of the Criminal Procedure Law, the time of re-appraisal (except for the re-appraisal of mental illness) should be included in the trial limit; However, if the relevant provisions of the Interpretation are applied flexibly, the people's court may decide to postpone the trial due to the initiation of the re-appraisal procedure (the time limit for postponing the trial shall not exceed one month), then according to the relevant Interpretation, the time for postponing the trial (essentially including the time for re-appraisal) is not included in the trial limit.
The author thinks that both the Criminal Procedure Law and the interpretation formulated by the Supreme People's Court belong to broad legal sources, and there are different provisions on whether the appraisal time should be included in the trial limit, but their legal effects are similar in essence, and conflicts between legal sources are inevitable.
As we all know, starting the re-appraisal procedure will inevitably affect the normal trial progress of the case, and it is difficult for the people's court to conclude the case as scheduled within the statutory trial period. The Supreme People's Court's explanation of the time limit for trial actually takes into account the objective reasons in the trial practice, circumventing the stipulation in the Criminal Procedure Law that the appraisal time except mental illness should be included in the time limit for handling cases, so as to achieve the purpose that criminal cases should not exceed the time limit for trial. The interpretation formulated by the Supreme People's Court plays an important role in guiding the trial practice of the people's courts, but its legal status is not as high as that of the Criminal Procedure Law.
Therefore, the author proposes to improve the Criminal Procedure Law and clearly stipulate that "the time of appraisal (including re-appraisal) is not included in the trial limit", which not only respects the objective facts, ensures the time limit for people's courts to handle cases, but also avoids the conflict between the current judicial interpretation and the Criminal Procedure Law.
5. The appraisee refuses to cooperate with the reassessment.
What should the court do if the appraisee refuses to cooperate after the re-appraisal procedure is started? This problem is still a blind spot stipulated by law.
A court in a certain place has encountered such a case: a case of intentional injury, the victim's injury was identified by the forensic doctor of the public security organ as serious injury B (the initial conclusion was tentatively set as minor injury A; After re-examining the victim's functional recovery, it was concluded that the victim was seriously injured. During the trial, the defendant and defender questioned the appraisal conclusion and applied for re-appraisal. The court made a decision to agree to re-appraisal and entrusted an appraisal institution to re-appraise the victim's injury. However, the victim has been shirking for various reasons, not cooperating with the re-appraisal, and the judicial appraisal institution was forced to terminate the appraisal. Because the severity of the injury affects the conviction and sentencing of the defendant, after the appraiser refused to cooperate with the re-appraisal, because there is no explicit provision in the law, the court can neither forcibly take the appraiser to the appraisal (even if it forcibly takes the appraiser to re-appraise, it is necessary to check his functional recovery, and if it does not cooperate during the inspection, it will definitely affect the appraisal conclusion), nor can it rashly punish the appraiser (in this case), whether it is the criminal procedure law, the decision made by the National People's Congress Standing Committee (NPCSC) or the judicial interpretation made by the Supreme People's Court and the Supreme People's Procuratorate. The 30th meeting of the Standing Committee of the Ninth People's Congress of Jiangxi Province passed the Regulations on Judicial Expertise in Jiangxi Province on June 1 2002. Article 24 only stipulates that the judicial authentication institution may terminate the authentication under such circumstances. The author thinks that the legislative blank of the current law to solve this problem makes the judge helpless when the appraiser refuses to cooperate with the re-appraisal, which not only damages the judicial authority of the court, but also is not conducive to the correct handling of criminal cases.
The author thinks that in order to solve the problem of appraisers' refusal to cooperate with re-appraisal, we should strengthen the rights and obligations of appraisers through legislation, and at the same time increase relevant mandatory and punitive norms. First of all, legislation should be made to ensure that appraisers are entitled to economic compensation if they miss work due to re-appraisal. The scope of economic compensation for the appraised person includes transportation expenses, lost time, food subsidies according to the national staff's business trip standards, accommodation fees, etc. And it can be clearly stipulated that the compensation fee shall be paid by the state.
Secondly, it should be made clear by legislation that the appraiser has the obligation to cooperate with the legal appraisal and re-appraisal, and has the obligation to cooperate with the judicial organs to find out the facts of the case.
Third, improve the legislation, and add relevant mandatory and punitive norms to the legislation for those who do not cooperate with the appraisal and re-appraisal. (1) It is clear that after the people's court starts the re-appraisal procedure, the people's court may impose a fine of less than 1000 yuan on the appraisee who refuses to perform the obligation of cooperation with the appraisal after being notified twice, and the people's court may force him to participate in the appraisal when necessary. (2) If the appraiser refuses to cooperate with the re-appraisal after doing the work, the people's court may, when trying the case, adopt the evidence that is not conducive to the appraiser in combination with the criminal litigation concept of "no doubt". For example, if a party, defender or agent ad litem reasonably questions the forensic expert conclusion that the appraiser was seriously injured and applies for re-appraisal, and the appraiser refuses to cooperate with the re-appraisal after the people's court decides to start the re-appraisal procedure, the people's court can adopt the appraisal conclusion that is unfavorable to the appraiser, that is, it can be treated as a minor injury. Of course, when applying this punitive clause, the people's court should carefully grasp it in combination with other evidence in this case and should not abuse it at will.
Six, several contradictory conclusions.
Although the expert conclusion is important evidence and plays an important role in proving the facts of the case, it has no legal effect. It must go through the procedures of proof and cross-examination before it can be used as evidence to determine the facts of the case. After re-appraisal, the re-appraisal conclusion made by the judicial appraisal institution may be consistent with the original appraisal conclusion, or it may be far from it. How to identify and judge the validity of several conflicting expert conclusions in the same case is a big problem for judges, and there are not many operational provisions in the current law. In judicial practice, judges have great discretion to accept the evidence of expert conclusions, and there is no objective and unified understanding standard. Some people think that the conclusion of re-appraisal is made later and closer to the objective reality, and the conclusion of the last appraisal is generally used as evidence for finalization; Some of them are comprehensively identified by combining several appraisal conclusions with other evidence.
The author believes that in order to correctly understand and accept the appraisal conclusion, we should first strengthen legislation and improve the cross-examination procedure of the appraisal conclusion. Cross-examination is a necessary pre-procedure to accept the appraisal conclusion as the basis of judgment. As a participant in litigation, the appraiser can verify the appraisal conclusion made by the parties by questioning, asking and refuting. ⑧ Perfecting the cross-examination procedure of expert conclusion includes: (1) adding the system of compulsory appraiser's cross-examination in court. Although the appraiser has the obligation to testify in court, if he refuses to appear in court for cross-examination, the parties' doubts about the appraisal conclusion will not be solved, and the court's appraisal conclusion will be difficult to accept, which will increase the difficulty of hearing the case. The author suggests that if the appraiser refuses to appear in court without justifiable reasons after being notified by the people's court according to law, the court may take compulsory measures such as admonition, summons and compulsory summons, and even impose a fine of 1000 yuan; For those who still refuse to cross-examine in court, the appraisal conclusion made by them will not be accepted, and a fine of less than 3,000 yuan or detention of less than 15 days will be imposed according to the specific circumstances; It is also suggested that the relevant units cancel their appraisal qualifications or remove them from the list of judicial appraisers. Of course, in order to protect the legitimate rights and interests of appraisers, we should also establish the system of compensation for appraisers appearing in court and the system of appraiser protection; If the appraiser is really sick or on a business trip and cannot appear in court for cross-examination, he should be given the right to ask for leave. (2) Improve the cross-examination procedure of expert conclusion in court trial. The cross-examination of experts' conclusions in all countries of the world is generally carried out through cross-examination procedures. The current concept of criminal procedure is that the judge tries his best to let the prosecution and the defense cross-examine the appraiser in the intermediate judgment of the court, and the judge's inquiry about the appraiser is only a necessary supplement; It should be noted that the questioning of appraisers should avoid becoming a mere formality. (3) Establish and improve the expert assistant system. Attending in view of the fact that judicial expertise involves professional knowledge and special skills, only people with relevant professional knowledge can conduct substantive cross-examination activities on the appraiser's appraisal conclusions. At present, China has established the expert assistant system in civil litigation. In criminal proceedings, we can also learn from the relevant experience of the two legal systems and allow the parties to hire expert assistants with specialized knowledge to appear in court to ask the appraisers, so as to make up for the lack of professional knowledge and help to reflect the effect of cross-examination.
In addition, legislation should be improved to standardize the court's review and acceptance procedures for expert conclusions. The appraisal conclusions of several cross-examinations presented in court shall be examined in the following ways: a. To examine whether the appraisal subjects of several appraisal conclusions are legal; Whether it has the qualification for appraisal; Whether a quorum is reached; B. Check whether the procedure made by the expert conclusion is legal, such as whether the appraiser has any circumstances that should be avoided but not avoided; C. Examine whether the samples, samples and appraisal objects on which the appraisal conclusion is based are objective and true; Whether it meets the evaluation conditions; (four) to check whether the instruments, equipment and evaluation methods used by the appraisers in the evaluation process meet the relevant national standards; E. Review and judge whether the differences between several appraisal conclusions are inconsistent with other evidence; Whether there are sufficient arguments to support it; F. Examine whether the appraisee has been influenced by the outside world; Whether there is favoritism, bribery.
The judge examines and judges several contradictory expert conclusions according to the above methods, and all expert conclusions that conform to the law, have no contradiction with other evidence and can form an evidence chain between evidence should be accepted; Otherwise it will not be accepted. The judge should publicly state the reasons for approving the expert conclusion and the selection of evidence in the judgment, which is conducive to improving the transparency of the court's trial activities and convincing the parties that the court approves the expert conclusion and other evidence.
References:
(1) Medical litigation is mired in appraisal, Qilu Evening News A7 [n] April 20, 2005.