Expert witness research

Author: Xu Jijun
Publisher:
Publish Date: 2004-12-01
Features: Evidence is the foundation of judicial justice. Without evidence, the justice and fairness of the judiciary cannot be guaranteed. To achieve justice and fairness in China's judiciary, it is essential to strengthen the foundation of judicial justice and fairness—evidence law! This is also the basis for ensuring long-term social stability and establishing a rule-of-law society. In simple terms, evidence law is the law that uses evidence to prove disputed facts. Its content mainly consists of two parts: evidence and proof. The relationship between them is that evidence is the foundation and means of proof, while proof is the inevitable result and requirement of evidence. These contents, , do not belong to any single code of procedure but are universally applicable across the three major types of litigation. Second, it is related to procedural law but is not part of procedural law; rather, it is a type of regulation that is quite similar to substantive law norms. Judges and parties often cite it directly as substantive law norms. Third, from a legislative perspective, no single code of procedure can encompass all rules of evidence law. Therefore, the relationship between evidence law and procedural law is very clear: Due to the openness of evidence, evidence-related actions must be transparent. In the context of litigation, the powers and activities of investigative agencies such as public security organs and the procuratorate are closed, which does not align with the essence of evidence law. Hence, they should be regulated by the code of criminal procedure. On the other hand, procedural law itself has the irreversibility of procedures, meaning that once a procedure is completed, it cannot be repeated. For example, once the public security organ transfers a case to the procuratorate for prosecution, it cannot reopen the investigation; once the first-instance court has concluded the trial, it cannot decide to retry the case. In contrast, evidence law itself has reversibility. For instance, even if the procuratorate prosecutes a case to the court, it can still investigate and collect relevant evidence. Moreover, even after the court has concluded the trial, if the examination-in-chief or the closing argument has ended, the court can still decide to reopen the examination-in-chief or the closing argument at its own discretion. Therefore, firmly grasping the characteristics of closedness (non-openness) and irreversibility to distinguish between procedural law and evidence law is clear and straightforward. Especially in distinguishing the content of procedural law from evidence law, evidence law can be formulated independently.
Expert evidence is a highly distinctive form of evidence. In China, expert opinions fall under expert evidence. In this book, the author systematically introduces the acceptance rules, disclosure rules, cross-examination rules, and rules for holding expert witnesses accountable in common law jurisdictions, providing valuable materials for research on expert witness systems. When studying the expert witness system, the author conducts a horizontal comparison with the expert witness system in civil law jurisdictions and, combining the litigation cultures and fundamental national conditions of various countries, profoundly reveals the advantages, disadvantages, and survival reasons of expert evidence systems in the two legal systems. On this basis, the author proposes a framework for establishing a "expert witness-expert" system in China, which holds positive significance for improving China's expert witness system.