诉讼外鉴定的类型化及其司法审查
曹志勋诉讼外鉴定的类型化及其司法审查
Classification and Judicial Review of Extra-judicial Expert Identifications
期刊名称：《法学研究》
期刊年份：
作者：曹志勋
单位：
中文关键词：诉讼外鉴定;鉴定意见;当事人陈述;报道性书证;鉴定证人
英文关键词：extra-judicial expert identification; judicial expert identification; parties' presentation; reporting documentary evidence; witness for expert identification
中文摘要：
诉讼外鉴定现象在我国广泛存在，其证据定性归类及配套的司法审查规则值得探讨，应当在比较法经验的基础上，就中国问题展开反思与建构，提炼出我国就诉讼外鉴定有特色的理论。诉讼外鉴定涉及情况复杂，只有指向事实发现功能的才是证据法意义上的诉讼外鉴定，具体可能分别构成不同的证据种类。由于鉴定意见的中立性与以异议权为核心的证据收集程序的强制性要求，诉讼外鉴定原则上不宜被视为法定鉴定意见。诉讼外鉴定可以构成事实主张层面的具体案情陈述，而不能构成证据层面的当事人的陈述，但法院应保障当事人通过案情陈述发表意见的机会，其功能在于否定鉴定的必要性和挑战法定鉴定意见。基于民事诉讼契约化的原理，诉讼外鉴定可以例外地根据当事人的合意转换为法定鉴定意见，当事人也有权将其共同委托的诉讼外鉴定意见作为认定事实的依据。基于对证明对象的调整，诉讼外鉴定也能够就鉴定人对待证事实发表的意见（而非待证事实本身）构成报道性书证。虽然鉴定制度不同于英美法系的专家证人制度，但是诉讼外鉴定也可构成鉴定证人，证明专家在鉴定过程中亲自观察和感知的事实。
英文摘要：
The evidence nature and the corresponding rules of judicial review of extra-judicial expert identifications deserve more attention. Only those with fact-finding function can be regarded as extra-judicial expert identifications in the sense of evidence law, which could further be classified in different types of evidence. Considering the neutrality of expert identifications and mandatory requirement of evidence collection proceedings with the right of objection as its core, extra-judicial expert identifications should in principle not be regarded as judicial expert identifications. An extra-judicial expert identification could constitute the particulars of the case presented by the parties as factual allegations, but could not be regarded as the parties' presentation as evidence. Nevertheless, the court should safeguard the parties' right to be heard by presenting such particulars that have the function of denying the necessity of judicial expert identification or challenging judicial expert identification. Merely based on the principle of contractualisation within civil litigation, an extra-judicial expert identification could exceptionally be transformed into judicial expert identification based on the consensus of the parties. The parties are also free to agree that the conclusion of an extra-judicial expert identification mutually designated by both parties could be used as the basis for fact-finding. Based on the adjustment of the facts to be proved, an extra-judicial expert identification can also be used as documentary evidence that has the function of reporting the facts. In this regard, the facts to be proved are the opinions that the expert gives regarding the to-be-proven factual allegations, rather than the objective facts of the case themselves. Although judicial expert identification in continental legal systems differs from the expert witness in common law systems, an extra-judicial expert identification could constitute special expert witness, who can prove the facts that he has observed and perceived by himself during the process of preparing his professional identification.
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