The Research On Mental Disorder Judicial Identification System

The State Council Legislative Affairs Office announced "Mental Health Law (Draft)"("draft" for short) on June10th,2011. Define mental disorders and serious mentaldisorders for the first time, pointing out start-up procedures of Mental Disorder JudicialIdentification, identification system and bodies’ qualification, identification procedures,the use of identification conclusion, and so on. Compared to old Mental Disorder JudicialIdentification, has made considerable progress. But how to avoid the Public ProsecutionService identify healthy people randomly, making the healthy "mental patients " and lostthe basic right to life and human dignity; or healthy escape legal sanction because of"mental patients ", causing social injustice or even a serious social opinion, which bringserious challenges to justice. For this, I start with Mental Disorder Judicial Identificationtheoretical study, analyze the current situation of judicial identification of mental disorder,used along with a comparative analysis of methods, combined with the" draft" to offer afew simple conceptions for our Mental Disorder Judicial Identification.The article includes four parts. The first part is about the general investigation of MentalDisorder Judicial Identification. Describe the historical development of Mental DisorderJudicial Identification for short, define what the Mental Disorder Judicial Identification isfrom the "draft", put forward protection of human rights, procedural justice, the specificityof mental disorders in criminal law, and so on. Point out the significance of judicial justiceand social legal construction on perfecting Mental Disorder Judicial Identification.The second part around the current status of Mental Disorder Judicial Identification,pointing out the main problems in actual work: the first, the start of Mental DisorderJudicial Identification is unreasonable, mainly reflected in the prosecution and thedefense’s rights of balance, the Public Prosecution Service has a absolute identification tostart, but there is no appropriate judicial relief ways to defense’s rights. The second,Mental Disorder Judicial Identification institutions are not consistent, identificationexperts are suspectable, such as there are so many identification institutions in hospitals,governments, and colleges, which work with psychiatrists in their own ways. The third,procedural justice is absent. For example, the court start to identify only by subjective consciousness, the identification process is not open, the identification method drawnrandomly, the identification term is varied, and also lack of the necessarycross-examination. The fourth, because of the system’s limitation, there are so manyidentification conclusions in the same case, needing to clear identify purpose, unifiedidentification of quality assessment criteria, and limit the identification’s times, in order toimprove the reliability of identification conclusion.The third part focuses on the starting right, procedures, conclusions, experts’cross-examination of Mental Disorder Judicial Identification, comparing two legalsystems in order to provide useful lessons for the improvement of our forensic system.The fourth part interpretation the twenty-ninth, thirty, thirty-one, thirty-two of the"draft" on Mental Disorder Judicial Identification detailedly. Summarize the perfectscheme: the first, retaining the "draft" of the parties concerned or guardians’ entrust injudicial rights on the start, and given the defense first application right to Mental DisorderJudicial Identification at the same time. The defense can entrust by themselves when theapplication is not approved. Under special circumstances, criminal Mental DisorderJudicial Identification is the necessary procedure. The second, we should set upauthoritative coordination and management agencies on Identification institutions andexperts, unify the only Identification institution, and improve the identification expertssystem according to the" draft", such as a clear identification of examination, evaluation,grant program, a clear experts’ rights and obligations. Besides, we should implement theavoidance system, on-site supervision and legal experts to participate in the provisionsfrom the "draft". The third, we should take the identification procedure standardization,transparency, establishing appraisal conclusion pretrial display program, improve theidentification of appearing in court as a witness, expert witness testimony is established inthe rules of procedure, strengthen the supervision and guidance, set reasonable appraisaldays, instead of the draft’ s compulsory identification and general identification days. Thefourth, we should record of the different appraisal opinions roundly and sign in addition tothe "draft", should also set up examination system of expert conclusion, perfectcomplementary identification procedures, establish " A maximum of two identification",to play the experts’ conclusion of judicial auxiliary functions under limited judicialresources.