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司法审判作为解决纠纷的最后手段,往往涵盖了社会的方方面面,作为专职司法的审判人员很难单独对案件中涉及到的专业性问题做出准确判断。虽然一般情况下鉴定意见会给审判人员提供帮助,但仅凭这种单方提供的证据而解决某个专业性的问题,无论是在人权保障方面,还是司法公正方面都有很大不足。有鉴于此,2012年再修改后的《刑事诉讼法》第192条明确了“具有专门知识的人”参与到刑事诉讼程序的制度,这在一定程度上缓解了被告方难以对专业性问题进行有效辩护的窘境,同时也部分解决了审判人员对专业性证据和事实认定困难的问题。鉴于法典中对于“有专门知识的人”的规定过于原则,因此,此项制度还有诸多需要明确和完善之处,比如刑事诉讼中“有专门知识的人”的诉讼地位、证据效力和质证范围分别是什么,刑事鉴定人和“有专门知识的人”有哪些区别和联系,涉家暴刑事案件中“有专门知识的人”出庭的实践状况如何,刑事诉讼与民事诉讼中“有专门知识的人”有哪些异同,以及大陆法系国家和地区刑事诉讼中“有专门知识的人”的相关制度对我国的借鉴意义,等等。本次笔谈试图从具体的视角切入,对上述问题一一进行探讨,力求为司法实践提供一些启示。
Judicial adjudication, as the last resort to resolve disputes, often covers all aspects of society. As a full-time judicial judge, it is very difficult to make accurate judgments solely on the professional issues involved in the case. Although appraisal opinions generally provide assistance to judicial personnel, the solution of a particular professional issue solely on the basis of such unilateral evidence provides a great deal of inadequate protection of human rights and justice. In view of this, Article 192 of the Criminal Procedure Law, revised in 2012, clearly defines the system of participation of people with specialized knowledge in criminal procedure, which to some extent alleviates the defendant’s difficulty in professionalism The problem of effective defense of the dilemma, but also partially solved the trial staff of professional evidence and facts identified the problem of difficulty. In view of the principle of “people with special knowledge” in the Code, it is necessary to clarify and perfect the system. For example, in the criminal procedure, “people with specialized knowledge” What is the difference between the evidence of evidence and the scope of the evidence? What is the difference between the criminal expert and the “person with specialized knowledge?” And “Person with specialized knowledge” What are the similarities and differences with the “people with specialized knowledge” in civil lawsuits and the reference to “the people with specialized knowledge” in criminal lawsuits in the civil law countries and regions? This written attempt to cut from a specific perspective, to discuss these issues one by one, and strive to provide some inspiration for judicial practice.