Security experts Court Examination System in China

Keywords:: Identification Conclusions / expert / cross-examination

Abstract: The explicit identification of the legal status, does not appear in court the legal consequences do not appear in court cases, experts appear to economic compensation, judicial protection and other issues discussed, in order to overcome the identified person to appear difficult, conclusions of the court cross-examination a mere formality deficiencies, improve the appearance of expert cross-examination system, thus further improving the legislation and practice of judicial identification, protection of human rights, the interests of Justice.



February 28, 2005 the Tenth NPC Standing Committee passed the <"On the Decision of Forensic>" (hereinafter referred to as <<decision>> has achieved great success, but still there are not enough improvement. expert to appear before cross-examination has yet to be further standardized.

1 Forensic legislation lags behind
1.1 Identification of the legal norms of Justice seldom
Identification of the norms of judicial Law little can be said that exhaustive, maneuverability is not strong, there are some provisions of obvious defects. At present, no specific evidence, there is no comprehensive rules of evidence more systematic, not a unified national judicial identification method. For forensic aspects of procedural Law are scattered among the three, only six Articles, and mainly on the identification of the six terms of the enabling provisions of the decision. Even <<decision>> on the Cross Examination only one section mentioned, and perfect.

1.2 Regulation many depArtments, conflicting
Out of necessity, the depArtments have developed a number of adjustments forensic document. If the Ministry of Justice has developed <<Forensic Forensic management approach >>,<< Registration Administration>> Ministry of Public Security established <<Criminal Investigation Technology Rules>> The maximum Procuratorate formulated the <<Forensic Work Rules (Trial>>, the Supreme Court issued a <<People's Court of Forensic Interim Regulations>>, as well as the Supreme Court, Zuigao Jian, Ministry of Public Security, Ministry of Justice jointly issued the documents. These provisions, although to some extent alleviated the forensic field in the operation of the problems, but "rules out multi-gate" and the emergence of new confusion and force level is not high, the scope is narrow, the coexistence of conflict and contradiction , the purposes are different.

1.3 Identification of the legal status of positioning is not clear
Our Law is essentially a Civil Law countries follow the orientation on the identification of people, just as the expert pArticipants in the proceedings, that the identification of people to help the judiciary to resolve litigation issues relating to specialized experts. We all know, Civil Law countries is based on the authority principle litigation proceedings on the status of expert position. But the trend of the Reform of the trial is to establish the main adversary, terms of doctrine, supplemented by the prosecution and the defense-style trial mode on the expert of the uncertain legal status of the problem, apparently with the objectives of the reform is incompatible. It's like the United States subpoenaed to testify in court experts in France, not like the United States, and unlike the French, and some out of tune.

1.4 Identification of the country without a unified judicial norms and technical standards
Currently, except for some forensic and legal mental illness there are several standards promulgated by the Ministry, there is no uniform standard in other disciplines, most are only identified by their standard or empirical standards. All kinds of subjects, national industry standards and with the international standards recognized type of identification, not yet. many accreditation bodies because of their industry or professional characteristics, often have a completely different identification standards, such as personal injury to the same disability rating for Ministry of Public Security established << road traffic accident disability assessment standards>> and developed by the DepArtment of Labor <<employee injuries and occupational disease appraisal standards>> The results are often different from the interests of the parties offenders are usually chosen according to their own accreditation bodies, identification of agencies in order to meet clients. Among the many Some of the identification of standards is not scientific, is not accurate, such as forensic identification lighter injuries and minor injuries and minor injuries and Sometimes no emphasis on the concept of fuzzy expert conclusion. These problems inevitably lead to evidence of the role of the expert conclusion of the differences arise and shake is bound to affect the expert to appear before the effects of cross-examination, then a direct impact on the fair Administration of Justice.

1.5 Identification of people do not appear to accept the source of cross-examination
Because there is no established common law countries such as the hearsay rule is so strict, and no Civil law countries will implement the principle of the direct words of the letter. Principle requires the judge must direct verbal evidence of the original form of personal contact, and follow the words and verbal manner litigation actions. legislation lacks this principle, the establishment of rules of the court expert is bound to affect rates.

1.6 pairs of experts shall not clear the rights and obligations
Procedure for identification of the three people should enjoy, such as the right to remuneration, and their close relatives identified the personal and property rights from infringement of the rights of specific rights were not as clearly defined. This is the identification of people do not want to appear before the root causes of cross-examination . experts from the court to some extent, is a special witness. our law witnesses the protection of personal rights and property rights mainly in investigation, prosecution, trial, the testimony of the witness, after witness protection was inadequate. Even <<Criminal>> Section 161, "<Penal Code>> Section 307,308 articles," <Civil Law "> section 102," <Administrative Procedure Law>> 49, the provisions on witness protection , also mainly focus on the negative after the sanctions, the lack of positive protection of witnesses in advance. Not only that, our law on witness protection is limited to the witness itself, does not involve his close relatives. but real life is complex, witnesses and their close relatives, due to inadequate protection by the frequent occurrence of retaliation. from the obligations of the provisions of point of view, and relevant judicial interpretations of procedural law which provides that the appraiser should appear, but not explicitly specify which experts can not appear in court and what people should and must appear in court identified accept the cross-examination, nor establish the appropriate protection mechanism, the resulting defects in judicial practice abound.

2 judicial formality Cross Examination of Conclusions
In judicial practice, very few experts appear in court, an accreditation body to issue a written conclusion and more as the end goal. According to the survey, identification of person to appear rate is less than the current five per cent [2]. The court also urged experts rarely appear, even if the requirements of excuse often evade expert, resulting in qualification of both parties and the court denied review of forensic people do not testify, the court merely read the expert conclusions, the results of both parties in the court can not ask people for identification and cross-examination of the situation Next, only this one is full of technical terms to a mere formality expert conclusion of "Testimony" and the debate, judges, jurors with a conclusive identification of this material can not conduct a comprehensive review, but only some of the Administration of justice in the shadow of judicial power to allow expert. identification of the conclusions of the scientific and fairness is difficult to show, fail to examine the purpose of identification of the conclusions. When the identification of several conclusions appear contradictory, the judge is more likely random finds appeal process is difficult to avoid, or even start the trial supervision procedure, resulting in unnecessary duplication of the judiciary, but also damage the reputation of the judiciary.

Moreover, forensic evidence concluded that a special form, even if the expert to appear, but also because the parties and their agents or counsel lack of forensic expertise in the technical aspects of expert conclusion on the question only to stay in the perceptual level, conclusion that only the legality of stay in the identification level. on the identification of the relevance and objectivity of the conclusions of virtually little or no doubt. As the three major procedural provisions of this problem is only a matter of principle, no specific implementation details of the actual level hardly feasible. Therefore, the current cross-examination of forensic conclusions are often a mere formality, the parties cross-examination activities of the substance of expert conclusions difficult to reach, there is little forensic conclusions on the real cross-examination.

In judicial practice, cross-examination of expert conclusions of the court, saying the terms of the procedures to be too cross-examination, resulting in cross-examination of expert conclusion on the existence of a serious way, one-sidedness of the "cross-examination challenge" problems to be sent to re-identification, identification of people do not question the parties to appear before the court has no means of identification in all aspects of the review would not achieve the proper cross-examination role.

3 Construction Court Examination identification security system
Forensic each party must accept the conclusions of cross-examination, which is a due process protection, identification of the parties who appear before the inquiry, to answer the technical assessment process related issues is its legal obligations, also Caineng opened expert conclusions of science and Technology " mystery. "Otherwise, conclusions may not have probative force, and shall not be used as the basis for the referee. To ensure the smooth implementation of this system, I imagine, can be regulated from the following aspects.

3.1 The legal status of clearly identified
Forensic science and Technology, including the status of the status and legal status of the two areas. From a scientific status, he is a natural person with specialized knowledge, this is not controversial, from a legal point of view, accept the identification of the proceedings of the commission is involved in post- people. But what the status of living in what experts, the law does not clearly defined.

Due to cultural background and litigation model differences, experts in different countries, litigation system's position is different. In common law countries, judicial experts are usually located in the litigants Technology assistant, forensic are "expert witnesses" - "After the people of the discipline of science education, or master the practical experience gained from the special or proprietary knowledge of the people" [2]. to the United States the most typical. generally believe that the U.S. litigation system of "adversarial parties" as the feature the parties in the proceedings of all aspects of the confrontation. "Forensic Identification of activities and actions against are inseparable. both parties are trying to find a can of their claims under the judicial experts, to minimize the favor of their own identification, At the same time by the other party expert to refute the judicial inquiry is not conducive to efforts to reduce evidence of their identification with the values. From this point of view, the judicial expert witnesses in general is no different, so the forensic expert witness known as "[3] . and the main difference between an ordinary witness in their knowledge, skills and concepts in such proceedings, under the guidance of Forensic be regarded as both defense and prosecution witnesses, subordinate to the party. This inevitably makes the identification of Forensic parties and the court concluded testimony with a clear tendency, can not ensure Forensic completely neutral position. As the two sides of the struggle of judicial experts, although from different angles will help the court to judge carefully the testimony of experts, but diametrically opposed to the expert testimony because the judge will inevitably lead to trade-off difficulties in expert testimony. coupled with the objective of such testimony, the judge, already suspicious of notarization, of course, reduces the credibility of the testimony, weakening the value of identification evidence should be concluded.

In Civil law countries generally regard a clear distinction between experts and witnesses, expert testimony often is positioned on the use of specialized knowledge "to help identify the activities of the Court" and "the science is supporting the judge who" is considered to be identified "help the judge find the truth and achieve justice" activities that are part of judicial power [4]. Thus, in civil law countries, the judiciary is the duty of expert knowledge and experience to make up for the lack of judges, their activities often have quasi-judicial activities features. such as "Germany's litigation system to forensic human nature understood as a judge's assistant, thus requiring forensic must neutral both parties" [5]. In France, the identification of experts considered the Court's members, is termed "Science of judges," judges have a significant impact facts of the case. In Italy, the identification of experts considered the court support staff, whose function is to assist the judge to collect evidence, assessment of the evidence. Because of this "auxiliary judges" Conclusions Identification of the nature of scientific decision, coupled with the lack of identification of the judge's expertise led to judge the reliability of expert conclusion overrated, easy to recognize the evidence of effectiveness. As the German scholar laments Eni Xi Yao Ao Tema , Identification of the judges are too easily from "assistant" into the judge's "master" of the [6].

China <<Criminal>> modified to learn the adversary system, a number of factors, the judge's initiative was limited to some extent, but the identification of the system of Criminal procedure does not change with the changes. And common law countries, China's "identification of the legal status of an official with the eligibility status and multi-background" [7]. Some scholars believe that the identification of the legal status of common law countries than in high, lower than in civil law countries, the concept of "science and the principles of justice."
For judicial expert legal status of the positioning, I recommend positioning as a witness of the identification of people. The reasons are: Defendant, the trial is the legal framework of the basic elements, other participants are basically all three of the facilitators, who with the case results of no interest, and in the Trial Reform continue to push forward, follow the action construct the basic principles of expert's role should be a breakthrough. weaken the expert judges assistant position, advance expert to appear before cross-examination, can be said of the trial the logical result of the Reform.

3.2 provides expert legal consequences of non-appearance
Conclusions on the identification of a party in litigation to challenge and ask experts to testify in court cases, conclusions not been identified in testimony in person to clarify the process of forensic, and conclusions based on answering questions from both defense and prosecution and judges, can not According to the court decision as a basis. Thus, the admissibility of expert conclusion on clearly defined by law.

While strictly the implementation of "<decision>> Article 13 provides:" The People's Court refused to testify in court notified by the provincial people's government to stop engaging in judicial administrative department of forensic services to give more than three months to one year punishment, the circumstances are serious, revoke the registration. "can be refined as follows: (1 admonition, a statement of repentance, ordered to appear in court cross-examination. (2 accepted by the admonition to appear in court even after cross-examination by the court as the circumstances, impose a warning, fine. (3 parties to delay proceedings to undue litigation costs, by this bear corresponding liability of the parties to the actual loss caused by the necessary compensation. (4 appraiser does not appear before the bad part of their occupational performance should the poor performance record, where people can identify the unit to make its disciplinary action, administrative action proposed to have several bad record, its roster of experts or experts from the agency to remove. (5 even if the commission identification, natural persons designated by the judges should also be recognized, if necessary, matters should be identified in the identification of the person to appear. (6 of judicial expert intentionally damaged, replace the identification information, serious consequences to the court cross-examination, the people Crime of the proposed destruction of evidence the court may deal with relevant filing. Links to Research Papers Download http://www.hi138.com 3.3 people do not appear in court clearly identified exceptions
Learn from Germany, I think we can make the following provisions: (1 Identification of people have died, disappeared or residence is unknown, (2 old and infirm, suffering from serious illness or other barriers can not be excluded and can not be restored in a long time, (3 for the distance, inaccessible, and that the expert may not be required to appear in court, (4 because of natural disasters and other force majeure or other unexpected events can not appear in court (5 on expert conclusions without controversy, the parties, prosecutors have agreed to read, (6 expert conclusion made jointly by two or more, and no differences in expert opinion, and can allow a person to appear, others do not have to appear in court, (7 by two forensic and expert evaluations before and after the two agreed, (8 approved by the full court other special reasons.

But even in these exceptional circumstances, the expert's expert conclusion by the judge and the prosecution and the defense must also be the joint review (review of the content and procedures described earlier with reference to cross-examine forensic conclusions of the object and cross-examination procedures and the supplementary inquiry procedures before as the basis for deciding. Otherwise, the court should deny the evidence of effectiveness, and conduct additional verifications or re-identification.

3.4 The establishment of expert cross-examination of the economic compensation system for court
Identification of person to appear to pay certain amount of time, effort and associated costs, and our laws concerning the expert testimony because of how the economic loss suffered by the issue of compensation, in addition to the Supreme <"On the Civil Evidence requirements>> 54 , "" On the administrative provisions of the Evidence Issues>> Article 75, but has not made clear and specific provisions. In this regard, foreign countries have to draw upon the enactment of legislation. If the New York State Criminal Procedure Law, section 610 Article 50 provides: "Criminal proceedings are entitled to call witnesses and the Witness fees and travel costs the same. According to witnesses, the court or the official certificate issued by the actual appearance of witnesses and indicating the date and mileage, the county financial officer Fees paid to witnesses. "Japan <<Criminal>> Section 164 provides:" A witness may request travel expenses, accommodation. but there is no legitimate reason to refuse to be sworn or give testimony, unless. "Germany <<criminal procedure Code>> 71, 72 stipulates that the appraiser to follow the <<witnesses and expert witnesses Compensation Law "> to be compensated. <<Russian Civil Code>> Section 87 provides:" It should be paid to a witness to appear and take their to the travel and accommodation costs, travel expenses and pay them. "Article 89 is also made for the payment of the amount of witnesses as follows:" by the court under the circumstances they complete their obligations to pay, the amount paid to the witnesses, does not consider the amount collected from the parties, payment methods and the amount paid by the provisions of the Russian Council of Ministers of the Federal Republic. [8] "
I believe that in order to safeguard the legitimate interests of experts, experts due to appear in court for cross-examination and payment of costs and therefore affect the normal income or by giving the judiciary the right to require the parties to appropriate judicial compensation, the courts shall pay the appraiser funds into the court considered the top. this can be related to rules of law and refined as follows: (1 appearance by the full court to determine cross-examination of experts paid by the people's court. (2 requested by the public prosecution cross-examination of court expert, the public prosecution represent national interests, the public prosecution authority for the state treasury. (3 criminal defendant or defender application, cross-examination by the full court agreed to participate in the identification of the economic costs of compensation paid by the court. This is because the final decision rests with the courts, but also consistent with the principle of equal rights of both parties. (4 civil and administrative litigation cases, requiring expert cross-examination of the compensation court, in accordance with the Supreme People's Court <"On the Civil Evidence requirements>> Article 54 and the Supreme People's Court < "On the administrative provisions of the Evidence Issues>> Article 75, reference to an ordinary witness, identified by the provider who has paid in advance party, and ultimately by the losing party.

3.5 sound expert cross-examination of the judicial court system of protection
In judicial practice, experts appear in court to cross-examination involves the identification of people and their close relatives, the protection of personal and property safety issues. This directly affects the identification of whether to testify in court, is willing to accept cross-examination of the initiative. In China, civil law and the Supreme People's Court and administrative rules of evidence in the proceedings only to the expert made a principle of judicial protection provisions, it is no protection for. appraiser does not appear that one can not be ignored because of the lack of effective court protection, while the threat insulting, threatening behavior experts, it is difficult for the appraiser to provide effective protection, so that they appear difficult to eliminate the psychological barriers. because of the openness of the trial for some form of intimidation and places provided the opportunity, resulting in the intimidation of trial results. These behavior on the reliability of expert statements have a significant impact. Therefore, should provide experts in the inquiry shall not use Viagra ribs, abusive, threatening language. According to foreign scholars, empirical Research, prior violations against even more than the later. particularly in criminal suspects and defendants to take coercive measures and prior to the trial stage, prone to intimidation of witnesses by [9]. in the development of cross-examination of court expert protection system, should also be set up prior to the expert, after a comprehensive protection system. for example a 24-hour protection system, the names of more restructuring, and other home made the move, the implementation of a comprehensive protection system to prevent, reduce the risk of significant cross-examination. such as the April 28, 1995, the Royal Hong Kong Police Force set up a witness protection group, the group can provide extensive protection for witnesses of measures to meet the needs of witnesses, and also to prevent any form of threat. British regulations, including changes in identity of the witness, name, address, and even change the appearance and other protective measures [10]. In my opinion, these are can learn, in the judicial practice should do the following aspects of the protection: (1 should be a clear implementation of the protection of the judiciary, according to the different stage of the proceedings and the implementation of the provisions of protection of the different expert body, to clarify its responsibilities. such as: in the investigation stage by the investigative agency responsible for protection in the prosecution stage of the prosecution responsible for the protection, at the trial stage, the court of the Judicial Police is responsible for protection, an end after hearing, if in need of protection, the court informed expert area of jurisdiction the public security organs continue to protect. ( 2 strict implementation of <<Criminal>> the provisions of section 49, threats, insults, beatings, revenge and their close relatives identified violations severely punished, and effectively protect the identification of cross-examination of the legal rights of people to appear. (3 protected object, In addition to identification of himself, we must also protect the appraiser's immediate family. (4 in the scope of protection, not only to protect personal rights and property rights, but also to protect its reputation, honor and personality rights are not infringed.




Notes:
[1] Sun business group. FORENSIC of [M]. Beijing: Law Press, 2002:275.

[2] [U.S.] Jon • R • waltz. Criminal Evidence Daquan [M]. Jiahong, etc., translated. Beijing: China People's Public Security University Press, 1993:344.

[3] [Japanese] Taniguchi Anping. Procedural justice and litigation [M]. Ya-xin, translated. Beijing: China University of Political Science Press, 1996:265.

[4] Chen Ruihua. Forefront of issues in criminal proceedings [M]. Beijing: China Renmin University Press, 2000:542.

[5] [Japanese] Taniguchi Anping. Procedural justice and litigation [M]. Ya-xin, translated. Beijing: China University of Political Science Press, 1996:265.

[6] [de] Ao Tema • Yao Eni Xi. Code of Civil Procedure [M]. Zhou Cui, translated. Beijing: Law Press, 2003:289.

[7] Gong Wan Road. Appraiser Comparative Study [M] / / Jiahong. Evidence Forum (Vol. Beijing: Chinese Procuratorate Press, 2000:89.

[8] Zhang Jingbo. Expert testimony on the Restricted Factors and Countermeasures [M] / / Jiahong. Evidence Forum (Volume V. Beijing: Chinese Procuratorate Press, 2002:525.

[9] Peter Finn, Kerry Murphy Healey.Preventing Gang-and Drug-related Witness Intimidation [J]. National Institute ofJustice, 1996, (11:2-3.

[10] Liu Shanchun, Biyu Qian, Cheng Yuk. Rules of Evidence [M]. Beijing: China Legal Publishing House, 2000:101. Links http://www.hi138.com Research Papers Download