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司法实践中,存在多份重复性甚至冲突性死因鉴定意见的刑事个案频发,确认死因往往成为核心争点,如何审酌鉴定意见证据、认定实体事实继而成为法庭裁判的重心。但现行法并未识别死因鉴定意见较之其他类鉴定意见的特殊之处,以致一般性审查判断规则在具体适用中显得僵化。法庭对死因鉴定意见的“遵从”导致质证缺乏对抗性;死因鉴定意见所隐含的经验性、知识性、传闻性表明其并不自证其可靠性;死因鉴定意见具有间接证明属性,自身无法充足对死亡相关事实的完整证明,需要结合其他证据进行综合审查判断;死因鉴定意见要求鉴定人对尸检过程、尸检操作规程、意见作出的依据及意见认定等作出解释说明。为此,有必要在反思现行法不足的基础上,重塑死因鉴定意见审查判断的体系性规则:以审判中心主义为统摄性要求;确立被告人对质权,使其有权质疑并挑战控方证明;鉴定人出庭就死因鉴定意见做出解释与说明,此为死因鉴定意见可采性的程序性要件;明确专门知识人及其意见在诉讼中的地位和作用,使其成为增强质证充分性、有效性的手段。
In judicial practice, there are many criminal cases with repetitive and even conflicting causes of causation. It is often confirmed that the cause of death is the core issue. How to judge the evidence of opinion, and then the substantive facts are the center of gravity of court decisions. However, the current law does not recognize the special features of the cause of death appraisal as compared with the appraisal opinions of other categories, so that the rules of general appraisal of judgments appear to be rigid in the concrete application. The “compliance” of the Court’s judgment on the cause of death led to the lack of confrontation of the cross-examination; the empirical, informative and anecdotal evidence implied in the causal opinion of the cause of death indicated that it did not verify its reliability; Incomplete self-sufficient evidence of the death-related facts need to be combined with other evidence for comprehensive review and judgment. The expert opinion on the cause of death requires the appraiser to explain the autopsy process, the autopsy procedures, the basis for making opinions and the opinion of the opinions. For this reason, it is necessary to reconsider the systematic rules of judgment and judgment of the cause of death appraisal on the basis of reviewing the deficiency of the existing laws: taking the trial-centrism as the requirement of taking the sexual photos; establishing the right of pledge against the accused, making it challenge and proving the prosecution’s proof ; Appraisers to court to explain the views of the cause of death to explain and explain the reasons for the admissibility of the cause of death procedural elements of identifiable; clear expertise and their opinions in the position and role of litigation, making it a more fully substantiated and valid Sexual means.