道路交通事故责任认定研究
余凌云道路交通事故责任认定研究
Determination of Liabilities for Road Traffic Accident
期刊名称：《法学研究》
期刊年份：
作者：余凌云
单位：清华大学法学院
中文关键词：交通事故;责任认定;专家证言;行政诉讼
英文关键词：traffic accident;determination of responsibility;expert witness;administrative litigation
中文摘要：
针对道路交通事故责任认定是否可诉这一问题，法院和公安机关进行了长期的角力。这一问题的实质在于，应由谁承担涉及专业判断的过错认定职责，而产生这一问题的深层次原因却在于，道路交通安全法确立的完全开放的专家证言模式无法一蹴而就，法官不愿意采纳专家证言并承受审判风险，因此会尽量依赖警察的责任认定。未来，应当改革道路交通事故责任认定制度，采取可控的开放模式，这样既对现有机制震动不大，又能有序推进制度的改革。
英文摘要：
Whether police decisions on comparative negligence percentages can be sued or not is in fact a question about who should take the responsibility of making such decisions:the judge or the police? The practice after the adoption of Road Safety Law in 2003 has highlighted the bankruptcy of the legal provision that police decision in this regard is just an evidence and it is for the judge to decide whether it is valid and acceptable or not. Judges are not willing to take the risk of making a judgment on technical issues which they are not familiar with. In the meantime, except for the police report, judges will not trust and rely on the statement provided by experts outside the court and police bureau, since some experts may be captured by the parties and provide false evidence or untrue statement. Unfortunately, lacking of technical knowledge, judges have no ability to find out the truth. Many civil and administrative cases have revealed that judges always prefer to support or withdraw the police decision, rather than to alter it. That means judges rely heavily on police to find out the fact. Therefore, this author suggests that, a controllable open model should be adopted in the future reform of this system. Under this model, a panel consisting of police and relevant experts should be set up, and the majority members of the panel should be experts. They should work together and make the relevant decisions. In this way, they could achieve comparative independence, and their decisions will be acceptable by both the judge and parties. This model can ensure the smooth and successful implementation of the reform.
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