功能主義視角下專家輔助人訴訟地位再認識

The Reconsideration of the Expert Assistant in Litigation Status from the Perspective of Functionalism

為解決訴訟中對司法鑒定意見的質證及審查流於形式的問題，2012年《民事訴訟法》正式確立了專家輔助人制度。該制度旨在增強當事人質證能力，彌補司法鑒定制度不足，幫助法官解決專門性問題，進而促進庭審實質化。2015年《民訴解釋》第122條規定，具有專門知識的人在法庭上提出的意見，視為當事人的陳述。但這誤解了專家輔助人的訴訟地位。從實踐角度來看，專家輔助人的當事人化不利於最大限度地發揮專家輔助人的預期作用。專家輔助人所承載的特定功能，使其有別於鑒定人和大陸法系上的訴訟輔佐人。此外，從我國庭審質證模式及與鑒定人的對立關係上而言，專家輔助人兼具從屬與獨立之雙重屬性。

The Civil Procedure Law, which was revised in 2012, has formally confirmed the expert assis­tant system in order to solve the problem that the cross-examination and scrutiny of judicial expert opinion has became a mere formality in the lawsuit. The implementation of the system is able to enhance litigation capacity, making up for the lack of justice authentication system, helping judges solve the problem of specialization and promoting the substantiality of trial. The No. 122 clause in the Judicial Inteipretation of Civil Procedure Law, issued in 2015, regulates that the comments presenting in the court by the specialists are regarded as the past­ies J statements. However, it misunderstands the litigation status of the expert assistant. As a practical matter, it is adverse to maximize the anticipated effects of the expert assistant when it is regarded as the litigant. What the specific function the expert assistant host makes a distinction between appraiser and litigation assistant in the continental legal system. In addition，the expert assistant combines the dual attributes of subordination and independence in terms of the model of court trial in our country and the adversarial relationship with the ap­praiser.