China: 关于刑事诉讼鉴定意见质证的几点思考

Last Updated: 13 August 2019
Article by Liu Bo

鉴定意见种类繁多,有法医病理鉴定、法医临床鉴定、精神疾病鉴定、法医物证鉴定、法医毒物鉴定、文书物证鉴定、痕迹物证鉴定、微量物证鉴定、会计司法鉴定等区分,对案件的定罪和(或)量刑起着重要的甚至决定性作用,比如轻伤害案件的伤情鉴定,知识产权案件中的价格认定结论书"等。《刑事诉讼法》和司法解释对鉴定意见的程序、审查、采信作了详尽的规定,但是在实践中,控辩审更多的是在程序性上质疑、审查,实质专业问题上的质疑、审查少,鉴定人和专家辅助人出庭少,裁判说理少,没有充分体现鉴定意见质证的价值和意义,没有贯彻庭审实质化,一定程度上影响是事实的认定和法律的适用。有鉴于此,笔者根据自己多年的实务经验,谈谈自己的几点思考。

鉴定意见的定位和特点

鉴定意见是指鉴定人在诉讼活动中,运用科学技术或专门知识对诉讼中所涉及的专门性问题进行鉴别和判断并提供的专业性意见,是专家对事实而非法律的意见,属于意见性证据,具有主观性和间接性。它需要鉴定人的评判分析等主观因素的介入,主观性不言而喻。而且,鉴定意见与案件事实之间的关联是间接的,不能直接证明,必须通过推理来证明其事实主张,因而具有间接性。

对"鉴定意见"质证的目的

这涉及到形式和实质、表象和本质的分析,质证形式指向鉴定意见,实质服务于辩护观点,表象是质疑鉴定意见,本质是辩护意见的前移和奠基。对鉴定意见进行质证,目的实为"声东击西,围魏救赵,服务于辩护意见"。

对鉴定意见质证的前提和基础

根据多年的经验,辩护人总结为十六个字,即吃透案情、熟稔鉴定、明确目标、拟好提纲。这样才能知道为什么质,怎么质。

如何对鉴定意见质证

(一)坚持一大基本原则

即:鉴定意见与书证、物证、证人证言、被害人陈述等其他证据在资格与效力上并无二致,不存在天然的优势、证明力,鉴定人不是科学的法官,鉴定意见也不是科学的判决,运用科学方法获得的鉴定意见不等于科学本身,鉴定意见必须经过控辩双方的质证,最终由审判人员审查后确定采信与否。对鉴定意见进行"鉴定"是司法审判人员的职责和权力。

(二)严格审查四大重点:

1、检材

这是鉴定意见"物"的要素。检材是鉴定的基础,检材必须客观、真实、完整、充分、合法。实践中检材不全面、来源不明等现象屡见不鲜。

2、鉴定人

这是鉴定意见"人"的要素。鉴定人必须具备相应的专业知识、执业经验、职业技能、职业操守。鉴定人有资质不等于鉴定人适格。比如对一些特殊物品的价格鉴定,如今人字画等,普遍以价格认证中心的"价格鉴定意见"为依据,然而价格认证中心没有这种鉴定能力。

3、方法、过程

这是鉴定意见"行为"的要素。鉴定方法、过程应该独立、科学、客观、严谨。

4、鉴定结果

这是鉴定意见"目的"要素,也是鉴定目的的最终体现,必须客观、真实、科学、规范、合理、符合逻辑。

(三)一个善用——善用鉴定人出庭制度

《刑事诉讼法》第187条规定了鉴定人出庭作证制度,通过直接、言词方式对鉴定人进行质询,对于采信证据、查明事实有着不可替代的作用,辩护人应该善用该制度,借力打力,以实现更好的质证效果。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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