摘要
实证调研发现,技术性证据专门审查存在下列困境:基层检察技术性证据专门审查主体资源存在流失,技术性证据审查的范围与框架不明,技术性证据审查的启动及审查意见的证据效力有争议。困境成因在于,相关立法、司法解释制定背景变迁,造成不同规范间有抵触。检察技术人员流失,与员额制改革、检察人员分类管理后的待遇等因素有关。受证据法定主义影响,此类证据审查意见的证据资格有争议。优化检察技术性证据审查,应完善检察人员分类管理,健全技术人员及有专门知识的人指派、聘请机制;应将技术性证据审查意见视为辅助性证据;应界定审查范围与情形,转变审查逻辑并健全机制,赋予审查意见证据资格,健全司法责任制以提升证据审查质量。
Technical evidence examination refers to the exact practice of examining scientific and technical evidence involved in the prosecution stage then producing expert opinions.Empirical study indicates that there are following problems existing in the technical evidence examination practice.Firstly, the number of technical examiners is reducing in some local procuratorates. The allocation of professional and technical resources of local procuratorial organs at various levels is unbalanced, and the examination of technical evidence has not developed a sound mechanism yet. Secondly, the scope and framework of technical evidence examination are unclear. In practice, there is confusion about the application of the two models: general examination and partial examination. The examining framework of forensic opinion and that of technical evidence are not harmonious. Thirdly, the initiation of technical evidence examination and the natures of technical examination opinion are still controversial. The initiation is quite arbitrary, and the technical examination opinions are different between procurators and judges. Causes of these problems include factors from various aspects and levels. The specific background of some relevant laws and judicial interpretations have been changed in the past few years. Thus, there are some conflicts between different existing effective regulations. According to the legislation of the 1980s, the object of technical evidence examination was limited to forensic documents at that time, and now it has extended to various technical evidence materials. In practice, the scope of the technical examiners has extended from technical stuff in the prosecution system to experts outside the prosecution system. And the functional boundary of the technical evidence examiners is expanding as well. The reduction of technical examiners is related to the cutting salary of technical evidence examiners in prosecution, the classified management reform and the staff reform in the procuratorial and judicial departments. Under the influence of evidence legalism doctrine, the probative value of technical evidence opinions is controversial in practice. To improve the examining of technical evidence, we should reshape the classified judicial management system and enhance the mechanism of appointed experts and technical examiners. It is convincing to consider technical evidence opinion as collateral evidence, which is used as enhancement or impeachment of forensic opinions. And we must redefine the scopes and situations of the technical evidence examining mechanism, change the examining logic and improve the mechanism. In the evidence analysis process, procurators should receive the assistance from the technical stuff about the time when they are to choose the generalization of experience in order to distinguish scientific evidence from junk science. We should give the examining opinion evidence qualifications and probative value, and strengthen the judicial responsibilities to accelerate the quality of this job. If mistakes are made during technical evidence examination occurs resulting in wrongful convictions, the procurators who are in charge of the case should bear the judicial responsibilities, and the technical examiners should bear the judicial responsibilities only when they have intentional or gross negligence.
作者
陈邦达
Chen Bangda(School of Criminal Law and Justice,East China University of Political Science and Law,Shanghai 201620,P.R.China;Institute of Evidence Law and Forensic Science,China University of Political Science and Law,Beijing 100088,P.R.China)
出处
《山东大学学报（哲学社会科学版）》
CSSCI
北大核心
2023年第5期72-83,共12页
Journal of Shandong University(Philosophy and Social Sciences)
基金
司法部法治建设与法学理论研究部级科研项目专项任务项目“司法鉴定立法的理念与路径研究”(22SFB5033)
证据科学教育部重点实验室(中国政法大学)开放基金资助课题(2022KFKT10)
上海人才发展资助项目(2020133)。
关键词
技术性证据
检察技术人员
技术性证据专门审查工作
Technical evidence
Technical examiners in prosecution
Examining of technical evidence
