Research On The Expert Auxiliary System In Criminal Procedure

By referencing expert witnesses technically,the system of expert auxiliary aims to help examine the forensic appraisal opinions for the prosecution and the defense,change the dominant situation of the forensic appraisal opinions long-standing in practice and strike a balance between prosecution and the defense.The relevant regulations were first released in the field of civil action and administrative action in our country.Then the newly amended Code of Criminal Procedure also adds the regulations of this system.The application of the expert auxiliary system to the criminal action is not only the urgent demand on the criminal judicial practice,but also a response to the professionalization of the criminal judicial proof.However,the relevant regulations about the system by the new Code of Criminal Procedure and relevant judicial explanation are too brief.In order to help the system work better and meet the need in practice,this dissertation will construct and improve the system of expert auxiliary in Chinese criminal action by considering the characteristics of criminal procedure and identify activities,discussing the basic theories and using the relevant experience at home and abroad for reference.The full text is divided into four parts,thirty thousand words in total.The first part mainly discusses the theoretical basis of the expert auxiliary system in criminal action.The thesis points out that based on the existent judicial identification system,the subject of the system of expert auxiliary is,although different from the expert witness,coexists with the judicial appraiser.Without changing the judicial identification system in our country,the expert auxiliary just offers help for the prosecuting and defending parties to review and cross-examine the forensic appraisal opinions.Therefore,the newly added person who has specialized knowledge and can present an opinion to the forensic appraisal opinions should be the expert auxiliary.Due to the lack of independent function,the person should be subsidiary litigant participant.And his core function is to help the prosecuting and defending parties review the forensic appraisal opinions and safeguard their legitimate rights.The second part is to study the extraterritorial legislation of expert auxiliary participates in criminal proceedings.Different countries have different forms of lawsuit.Among these,the technical consultant system in Italy and expert system in Russia are similar to the expert auxiliary in our country.The thesis discusses the legislation of the two systems in detail,mainly about the expert’s rights and obligations as well as their opinions’ effect,points out their advantages and disadvantages,in hope to provide experience and reference for the improvement of the criminal expert auxiliary system in our country.The third part indicates the significance of the newly added criminal expert auxiliary system,and analyzes the present legislation.On one hand,the start-up and operation of criminal identification in one side leads to the unequal powers of the prosecuting and defending parties.One the other hand,the lack of the appropriate scientific and expert knowledge fails two parties to join into the identification activity as well as to judge on the forensic science opinions scientifically.The thesis points out that the expert auxiliary would help them balance the powers and by improving the parties’ abilities to review the appraisal opinions,helps the judge solve the problems of whether to admit the forensic appraisal opinions and reduce repeated identification and other phenomena that lower the lawsuit efficiency.But the unclear status of the expert auxiliary in new Code of Criminal Procedure and relevant provisions leads to the uncertainty of the expert auxiliary’s rights,obligations,opinion’s effect and the participating procedure.Moreover,the lack of related supporting systems,the uncertainty that whether the rate of the appraisers appear in court in the judicial practice would be improved,and the judge’s mind-set,etc can have an influence on the practical effect of the system.The fourth part is the constructions to perfect the system of criminal expert auxiliary.This part is the foothold and main points.In order to promote the system work availably,the regulations should be concretized in the legal level.The thesis points out that in the first place,it should be made clear that the expert auxiliary is a subsidiary litigant participant and its opinions is the evaluation ones based on the forensic science opinions.So their words don’t have the competency of evidence.The expert auxiliary should be ones qualified with the appraiser qualification,allowing some exceptions.And their rights,obligations,responsibilities and a series of subjective norms should be reasonably set too.Secondly,the participating procedures of the expert auxiliary should be refined.To ensure the better fulfillment of the expert auxiliary’s duties,the parties have rights to employ the expert auxiliary freely.The expert auxiliary should have rights to participate in the pretrial procedure,such as referring the relevant documents,inquiring the appraisers,supervising or witnessing the identification process under the conditions of restarted or supplementary identification.For the expert auxiliary are different from the appraisers in status and function,it is unreasonable to apply the provisions of appraiser appearing in the trial to the expert auxiliary.The expert auxiliary should be allowed to ask the appraiser some questions in certain situation.At last,on account of the characteristics of identifying activities,the thesis puts forward that the relevant supporting systems should be perfected such as the discovery of the forensic science opinions,the record of the identifying process,the reason of the judge’s judgement on the forensic appraisal opinions,the remedy procedure when the court refuses the application for the expert auxiliary’s appearing,and the legal aid when the parties can’t afford to employ the expert auxiliary.