論我國民事訴訟中鑑定人不出庭作證之應有後果－－「民事訴訟法」第78條釋析

The Necessary consequence of Expert Witness's Non-appearance in Civil Action: An Analysis on Article 78 of civil Procedure of PRC

2012年修改的《民事訴訟法》第78條明定鑑定人不出庭作證的後果是：鑑定意見不得作為事實認定的根據、鑑定人返還鑑定費用。該規定忽視了鑑定人出庭作證的公法義務性質和鑑定的證據法構造。在民事訴訟中，出庭作證系鑑定人對代表國家行使裁判權的法院承擔的訴訟法上的義務。基於該義務的公法性質，鑑定人不出庭作證應遭受罰款、拘留等公法上的制裁。考慮到鑑定人與證人訴訟地位的相似性，立法上應將鑑定人不出庭作證的後果一體適用於證人，這樣才符合形式正義的要求。According to Article 78 of PRC Civil Procedure amended in 2012, the consequences of the expert witness's non-appearance are the denial of the witness expert's opinion as the basis for fact finding and the restitution of the expert witness fees. However, such provision is not only contradictory to the expert witness's public law duty to appear, but also inconsistent with the structure of evidence law. It is even illogical. In civil action, serving as a witness in court-a duty under the procedural law-is for the expert witness to fulfill the requests of the court, which represents the state to exert the adjudicative power. Since the duty is arising from the public law, the non-appeared expert witness should be imposed on the public law sanctions, such as fine, detention, etc.. From the perspective of the jurisprudential methodology and legislative techniques, Article 78 of PRC Civil Procedure should not only provide that the non-appeared expert witness should be imposed on those public law sanction, but also articulate consequences of the expert witness's non-appear-ance, aiming at meeting the internal request of the doctrine of equity.