浙江利群律师事务所  朱美聪

内容提要：司法鉴定在民事诉讼司法实践中的运用日益广泛，许多类型案件的解决需要通过鉴定，鉴定结论对案件的处理具有决定性作用。罗马法的古老法彦“鉴定人是事实的法官”也说明了司法鉴定在诉讼活动中的重要作用。律师在代理民事诉讼案件过程中，是否重视对司法鉴定结论的质证、能否熟练运用相关法律规定，充分行使代理人对鉴定结论的质证权往往决定了案件结果的成败。本文拟从律师的视觉对我国司法鉴定结论质证的现状、成因、意义、及质证的方法进行论述，探讨如何在民事诉讼司法鉴定质证活动中为当事人提供优质的法律服务。

关键词：司法鉴定结论   质证   程序正义  专家辅助人 

一、司法鉴定结论质证的现状及成因

我国的民事诉讼法及相关的司法解释虽然对鉴定人出庭及询问鉴定人等司法鉴定结论质证制度作了规定，但司法实践中，当事人及其代理人对司法鉴定结论的质证往往流于形式，难以触及鉴定结论的实质，其结果就是使大量‘假冒的科学’、“假冒的科学家’堂而皇之进入法庭并作为证据采信。”严重影响了当事人和社会公众对司法鉴定工作的信任，并进而影响对相关诉讼过程和判决结果的可接受性，影响社会的和谐稳定。造成上述现状，其原因主要有：

1、法律规定过于原则，民事诉讼法和相关司法解释对“鉴定人出庭”制度、“专家辅助人”等制度只有原则性规定，没有明确的实施细则，规定不完善且可操作性差。

2、未规定鉴定结论开示程序。许多法院在开庭前没有将鉴定结论送达当事人，到庭审时才出示或宣读鉴定结论，当事人显然难以当庭对鉴定结论发表充分和准确的质证意见。

3、相关人员（包括当事人和律师）对司法鉴定结论质证的重要性认识不足。认为司法鉴定是由法院委托的鉴定人作出的，对鉴定结论盲目的“崇拜”，认为“鉴定都有结论了，当事人说什么都没有用”，不重视对鉴定结论的质证和审查判断。

二、对司法鉴定结论（意见）进行质证的意义

1、但鉴定结论也存在失真的可能性。鉴定活动受鉴定仪器设备先进程度、鉴定人鉴定水平经验高低、鉴定人职业道德水平参差不齐和鉴定科学理论与实践不断发展等众多因素影响，鉴定意见并非完全绝对正确无误。

2、鉴定结论不是当然的定案依据。对诉讼中的专门性问题申请鉴定是当事人收集证据的活动，根据法律规定，鉴定结论也只是证据形式的一种，未经质证不能作为裁判的基础。

3、对鉴定结论进行质证是程序正义的必然要求。“程序正义理论认为,法律程序不仅是为寻求公正的结果而设计,也是为保障一些独立于判决结果的程序价值而设计的。”[3]鉴定结论只有经过双方当事人的质证,才能从程序上保障当事人的询问权、异议权等诉讼权利的实现,从而以程序正义来保障实体正义的实现。

三、律师如何对司法鉴定结论进行质证

（一）律师在庭审外对司法鉴定结论质证应采取的措施

1、提供送检材料并对对方提供的送检材料进行质证。向鉴定机构提供真实、完整、充分的送检材料，就对方当事人提供的送检材料是否真实、与鉴定的事实的关联性、是否应纳入鉴定材料范围等提出质证意见，以保证送检材料本身的真实性及其与案件事实联系的客观性。另外，当鉴定材料因客观原因无法取得时，申请人民法院予以调取。

法律依据：司法部《司法鉴定程序通则》第13条规定：委托人应当向司法鉴定机构提供真实、完整、充分的鉴定材料，并对鉴定材料的真实性、合法性负责。最高人民法院《关于民事诉讼证据的若干规定》（下称《民事证据规定》）第17条：符合下列条件之一的，当事人及其诉讼代理人可以申请人民法院调查收集证据：……（三）当事人及其诉讼代理人却因客观原因不能自行收集的其他材料。

2、及时向法院获取司法鉴定报告。在相关事项进人司法鉴定程序后，与法院负责司法鉴定工作的经办人员保持工作联系，在得知司法鉴定报告作出后，及时向人民法院获取鉴定报告，并将鉴定结论告知委托人，与委托人共同对鉴定报告内容进行审查并做好质证准备。

法律依据：目前法律没有明确规定包括鉴定结论在内的证据应在开庭前送达给当事人，但《民事证据规定》第34条规定的举证时限、第37条规定了审前交换证据制度等均体现了当事人有在开庭前获取证据的权利。

3、提交鉴定人出庭申请。律师应当在收到鉴定报告后开庭前适时向法院提交要求鉴定人出庭的书面申请。司法实践中，由于鉴定机构都是有法院委托的，大部分法官对鉴定结论持高度信任状态，在当事人不提出要求的情况下，法官一般不会通知鉴定人出庭参与质证。而鉴定结论本身无法直接回答任何质证和疑问，鉴定人不出庭在实质上就剥夺了当事人和代理人的质证权，对鉴定结论存在的疑惑无法消除，因此，在对鉴定结论存在疑虑的情况下，律师应当提出书面申请，要求鉴定人出庭参与质证。

Zhejiang Liqun Law Firm Zhu Meicong

Summary: The application of judicial appraisal in civil litigation judicial practice is becoming increasingly widespread, and the resolution of many types of cases requires appraisal. The appraisal conclusion plays a decisive role in the handling of cases. The ancient law of Roman law, "appraisers are judges of facts", also shows the important role of judicial expertise in litigation activities. In the process of representing civil litigation cases, whether lawyers attach importance to the cross examination of judicial appraisal conclusions, whether they can proficiently apply relevant legal provisions, and fully exercise the agent's right to cross examine appraisal conclusions often determine the success or failure of the case outcome. This article intends to discuss the current situation, causes, significance, and methods of cross examination of judicial appraisal conclusions in China from the perspective of lawyers, and explore how to provide high-quality legal services for parties in civil litigation judicial appraisal cross examination activities.

Key words: expert assistant of judicial expertise conclusion cross examination of Procedural justice

1. The current situation and causes of cross examination of judicial appraisal conclusions

Although China's Civil Procedure Law and related judicial interpretations provide for the system of cross-examination of judicial appraisal conclusions, such as the appearance and questioning of appraisers, in judicial practice, the cross-examination of judicial appraisal conclusions by parties and their agents often becomes mere formality, making it difficult to touch the essence of the appraisal conclusion. As a result, a large number of 'counterfeit science' Fake scientists' openly enter the court and are admitted as evidence. This seriously affects the trust of parties and the public in judicial appraisal work, and in turn affects the acceptability of relevant litigation processes and judgment results, affecting social harmony and stability. The main reasons for the above situation are:

1. The legal provisions are too principled, and the Civil Procedure Law and relevant judicial interpretations only have principled provisions for the system of "expert witness appearing in court" and "expert assistant", without clear implementation rules, incomplete regulations, and poor operability.

2. There is no prescribed procedure for the disclosure of appraisal conclusions. Many courts do not deliver the appraisal conclusion to the parties before the trial, and only present or read it out during the trial, making it difficult for the parties to express sufficient and accurate cross-examination opinions on the appraisal conclusion in court.

3. Relevant personnel (including parties and lawyers) have insufficient understanding of the importance of cross examination of judicial appraisal conclusions. Believing that judicial appraisal is made by appraisers entrusted by the court, blindly worshipping the appraisal conclusion, believing that "the appraisal has a conclusion, and the parties' words are useless", and neglecting the cross examination and examination judgment of the appraisal conclusion.

2. The significance of cross examination of judicial appraisal conclusions (opinions)

1. But there is also a possibility of distortion in the appraisal conclusion. The appraisal activities are affected by many factors, such as the advanced level of appraisal instruments and equipment, the level of expertise of appraisers, the uneven level of professional ethics of appraisers, and the continuous development of Scientific theory and practice of appraisal. The appraisal opinions are not completely correct.

2. The appraisal conclusion is not a natural basis for finalizing the case. Applying for appraisal of specialized issues in litigation is the activity of the parties involved in collecting evidence. According to legal regulations, appraisal conclusions are only a form of evidence and cannot be used as the basis for a judgment without cross examination.

3. Cross examination of expert conclusions is the inevitable requirement of Procedural justice. "According to the theory of Procedural justice, legal procedures are not only designed to seek fair results, but also to safeguard some procedural values independent of the judgment results." [3] Only after the cross examination of both parties can the expert conclusion ensure the realization of the parties' procedural rights, such as the right to ask questions, the right to object, and so on, in order to safeguard the realization of substantive justice with Procedural justice.

3. How Lawyers Cross examine the Conclusion of Judicial Appraisal

（1）Measures to be taken by lawyers to cross-examine judicial appraisal conclusions outside of court trials

1. Provide inspection materials and verify the quality of the inspection materials provided by the other party. Provide authentic, complete, and sufficient inspection materials to the appraisal institution, and provide cross examination opinions on whether the inspection materials provided by the other party are true, related to the appraisal facts, and should be included in the scope of the appraisal materials, in order to ensure the authenticity of the inspection materials themselves and the objectivity of their connection with the facts of the case. In addition, when the appraisal materials cannot be obtained due to objective reasons, apply to the people's court for retrieval.

Legal basis: Article 13 of the General Rules for Judicial Appraisal Procedures issued by the Ministry of Justice stipulates that the client shall provide authentic, complete, and sufficient appraisal materials to the judicial appraisal institution, and shall be responsible for the authenticity and legality of the appraisal materials. Article 17 of the Several Provisions on Civil Litigation Evidence of the Supreme People's Court (hereinafter referred to as the "Civil Evidence Provisions"): If one of the following conditions is met, the parties and their litigation representatives may apply to the people's court to investigate and collect evidence:... (3) Other materials that the parties and their litigation representatives cannot collect on their own due to objective reasons.

2. Timely obtain judicial appraisal reports from the court. After the relevant matters are included in the judicial appraisal process, maintain working contact with the handling personnel of the court responsible for judicial appraisal work. Upon learning of the judicial appraisal report, promptly obtain the appraisal report from the people's court and inform the client of the appraisal conclusion. Together with the client, review the content of the appraisal report and prepare for cross examination.

Legal basis: Currently, there is no clear provision in the law that evidence, including appraisal conclusions, should be delivered to the parties before the hearing. However, the time limit for proof stipulated in Article 34 of the Civil Evidence Regulations and the pre-trial exchange of evidence system stipulated in Article 37 all reflect the right of the parties to obtain evidence before the hearing.

3. Submit an application for the appraiser to appear in court. Lawyers should submit a written application to the court requesting the appraiser to appear in court in a timely manner before the hearing after receiving the appraisal report. In judicial practice, due to the fact that appraisal agencies are entrusted by the court, most judges hold a high level of trust in the appraisal conclusion. In cases where the parties do not make a request, judges generally do not notify the appraiser to appear in court to participate in the cross-examination. However, the appraisal conclusion itself cannot directly answer any cross-examination and questions. If the appraiser does not appear in court, it essentially deprives the parties and agents of the right to cross-examine, and doubts about the appraisal conclusion cannot be eliminated. Therefore, in cases of doubts about the appraisal conclusion, lawyers should submit a written application requesting the appraiser to appear in court to participate in the cross-examination.