|Year : 2019 | Volume
| Issue : 4 | Page : 208-212
Reformation of the judicial appraisal adoption system used by party institutions entrusted by the investigation agency in criminal proceedings
Yang Lian1, Mengshang Wu2, Yuanyuan Lian3
1 Changping District People's Court of Beijing, Beijing, China
2 Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing, China
3 Collaborative Innovation Centers of Judicial Civilization; Institute of Evidence Law and Forensic Science, Key Laboratory of Evidence Science, Ministry of Education (China University of Political Science and Law); Institute of Evidence Law and Forensic Science, Fada Institute of Forensic Medicine and Science; Institute of Evidence Law and Forensic Science, Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing, China
|Date of Submission||25-Apr-2019|
|Date of Decision||17-Sep-2019|
|Date of Acceptance||05-Nov-2019|
|Date of Web Publication||11-Dec-2019|
Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing
Source of Support: None, Conflict of Interest: None
The new requirements of trial-centered litigation in China are a concrete manifestation of the reform of the rule of law under Xi Jinping's new socialist era. The effective implementation of judicial appraisal lays a solid foundation for the correct identification of facts, accurate conviction, and sentencing, and technically, it should guarantee a fair trial. However, in practice, judicial appraisal opinion carries the risk of a diminished trial that deviates from the trial-centered requirement to substantiate a charge and can easily lead to unjust cases. This paper seeks to discuss the system of identification of property loss involved in criminal proceedings, which is implemented by a third-party appraisal institution entrusted by the investigation agency, and highlights the fact that the third-party appraisal institutions in judicial practice are currently reliant on cooperative thinking, but countenance the lack of a mechanism for effective accountability, and the court's propensity for their support. This leads to the verification components of the trial being depreciated, which may lessen the validity of the appraisal opinion (substantiation). In response to this problem, the author hopes to provide some suggestions to assist third-party appraisal agencies in the completion of judicial appraisal and achievement of their trial-centered reform goal by rationalizing the relationship between the investigation agency and identification institution, establishing a hierarchical accountability mechanism, and improving the rules governing testimony in court.
Keywords: Appraisal opinions, criminal litigation, judicial appraisal, trial centered, trial substantiation
|How to cite this article:|
Lian Y, Wu M, Lian Y. Reformation of the judicial appraisal adoption system used by party institutions entrusted by the investigation agency in criminal proceedings. J Forensic Sci Med 2019;5:208-12
|How to cite this URL:|
Lian Y, Wu M, Lian Y. Reformation of the judicial appraisal adoption system used by party institutions entrusted by the investigation agency in criminal proceedings. J Forensic Sci Med [serial online] 2019 [cited 2020 Jun 3];5:208-12. Available from: http://www.jfsmonline.com/text.asp?2019/5/4/208/272724
| Introduction|| |
Judicial appraisal in criminal litigation is not limited to that of the investigation agency's own appraisal institution, such as the judicial appraisal center of the public security bureau, but includes the appraisal of a social third-party agency entrusted by the investigation agency. Professional cases that are not covered by the appraisal centers of the Public Security Bureau must be entrusted to an institution with specialized knowledge. Reform of the trial-centered litigation system requires a substantive trial and the court should validate all the evidence of a case before its acceptance. In practice, however, the court adopts the opinion of the third-party appraisal institution entrusted by the investigation agency without a validation certificate for various reasons. This move violates the requirement that a substantive case is trial centered. Therefore, it is necessary to eliminate the risk of trials not being independent, so that appraisal opinions can truly obtain the effective verification of the courts and the reform goals can be realized.
| Real-Life Example: the Risk Arising from Judicial Appraisal by a Third-Party Appraisal Institution Entrusted by the Investigation Agency|| |
In August 2015, because of a dispute over land-use rights, Liu, the security department manager of Company A, hired two excavators and ordered his employees to evict the tenants of self-built homes in a particular area. Company A dismissed the employees of Company B (a gardening company) and instructed the excavators to demolish several bungalows on the plot, along with the gardens planted by Company B. Later, Liu was prosecuted for deliberately destroying property. One of the focuses of the trial was the matter of the loss of the gardens planted by Company B. During the investigation of the case, the Public Security Bureau entrusted an appraisal institution to identify the cost of the lost gardens, which was reported as 4,876,129 RMB. In the court hearing, because the defendant and the respondent objected to the appraisal opinion, Wu, the appraiser, was notified to testify in court. Wu's testimony was that he conducted his price evaluation based on the on-site records and the list submitted by the Public Security Bureau, but that he was not responsible for verifying whether or not items actually existed. The conclusion was made entirely on the basis of the list submitted by Company B, with no guarantee that the items on the list were those destroyed. After both the prosecution and the defense had conducted a cross-examination of the appraisal opinion, the court finally found that the appraisal opinion was based on insufficient evidence and could not confirm the destruction of Company B's gardens. Therefore, the appraisal opinion was not adopted. This case displays the following two prominent problems in the practice of property identification in criminal cases: (1) the appraisers did not go directly to the site and verify the property loss, but made an opinion directly based on the materials provided by the entrusting agency; (2) the appraisers were not familiar with the subject being appraised and were unable to respond to questions from the prosecution and the defense during the trial.
In the practice of criminal justice, the identification of a corpse, the identification of the degree of injury, and the identification of a drug overdose are entrusted by the Public Security Bureau to their own appraisal institutions. Projects covering the identification of financial loss, the identification of toxic and harmful foods, and the identification of goods for counterfeiting registered trademarks are entrusted to social third-party appraisal institutions. According to incomplete statistics, in the period from 2012 to 2015, the percentage of cases where Beijing courts directly supported third-party appraisal opinions in criminal cases was as high as 91.9%. In practice, the opinions of third-party appraisal institutions are adopted by the courts. The case mentioned above was exceptional in that it did not adopt the third-party institution appraisal opinion. Based on all the evidence, the defense continued to apply for reappraisal, the judge decided to call expert witnesses to court, and the appraiser voluntarily attended the trial. Those relevant common factors contributed to the result. In practice, the defender's application for reappraisal is often rejected and the appraiser cannot be summoned to appear in court. When the third-party appraisal opinion cannot be effectively cross-examined, the lack of checks and balances interferes with the judgment of the court.
| Analysis of the Cause of Problems of Judicial Appraisal by Third-Party Institutions|| |
Lack of collaboration between the appraisal institution and its client
The appraisal institutions in criminal litigation are generally divided into the investigation agencies' own internal appraisal institutions (such as the Public Security Bureau Forensic Appraisal Center) and social appraisal institutions. The internal appraisal institution can identify such things as corpses, drugs, and personal injuries, but the identification of lost property is generally entrusted to a third-party social appraisal institution. Social appraisal institution is based on the trust of the investigation agency, and the material provided by clients will not, under normal circumstances, be inspected to verify its objectivity, integrity, and whether it is contaminated.
The appraisal institution lacks an effective mechanism for accountability
Regarding the accountability of the judicial appraisal institutions, on February 28, 2005, the Standing Committee of the National People's Congress passed the “Decision on the Administration of Judicial Identification” (the Decision). Article 13 stipulates that if the appraiser or appraisal institution violates this Decision, the provincial judicial administration department shall issue a warning and order a correction. This could occur in one of the following circumstances: (1) the appraiser or institution is responsible for significant losses to the legitimate rights and interests of the parties; (2) the provision of false certification documents or other means of fraud; (3) refusal to testify after having been notified by the court; and (4) other circumstances as prescribed by the legal judge. The provincial judicial administrative department shall sentence the appraiser or appraisal institution for >3 months and <1 year's disqualification and they will be ordered to stop engaging in judicial appraisal for that period. Their registration may be cancelled if the violation is serious. If they intentionally provide a false appraisal, they will be held criminally responsible according to criminal law; if it does not constitute a crime, they will be punished in accordance with the provisions previously described. In judicial practice, the execution of the Decision is imprecise and has not achieved the desired effect. The important reason for this is that the Decision has not been strictly implemented and violations do not receive appropriate punishment. Conversely, as stipulated in Article 187, paragraph 3 of the criminal procedure law, when the public prosecutor, the appraiser, or the defendant's litigation agent disagrees with the appraisal opinion, and if the judge considers that it is necessary, the appraiser shall appear in court to testify. If the appraiser refuses to appear in court after being notified by the judge, the appraisal opinion will not be used as the basis for the final decision. As a result, the appraisal institutions and appraisers are casual with their requirements, because they are unaffected by whether or not their opinions are adopted in criminal litigation. In summary, the lack of effective accountability mechanisms for appraisal institutions and appraisers has led to a lack of responsibility, and errors are inevitable. This negatively affects the court's gathering of evidence and harms efforts to substantiate the trial.
The propensity of the court's judgment encourages the appraisal institutions to be irresponsible
In criminal proceedings, the courts routinely adopt the judicial appraisal of property losses, which leads the appraisers to have confidence in their appraisal opinions. There are two reasons why the court directly adopts these opinions: first, the lack of expert knowledge makes it impossible for judges to effectively identify and verify the appraisal opinions. The knowledge required for identification covers a wide range of issues. As for the identification of the property involved, it is necessary to comprehensively evaluate the market price, influencing factors, price assessment, and the depreciation of the property relevant to the case. Without such professional knowledge, the judge cannot effectively verify the judgment alone. Second, the Public Security Bureau, prosecution department, and criminal courts generally value coordination and neglect constraints in criminal proceedings, leading to the direct acceptance of the appraisal opinions submitted by the public prosecution agency (mostly the investigation agencies). If there is no obvious error, the appraiser will not be asked to appear in court and testify for an effective cross-examination. Chinese Constitution and Criminal Procedural Law summarize the relationship between public security, prosecution departments, and courts in criminal proceedings as division of labor, coordination, and mutual restraint. In practice, the court does nothing in the pretrial proceedings and the legal supervision of the prosecution is not rigid enough. In addition, the concept of emphasizing entity over procedure leads to the formation of a litigation pattern of “attaching importance to cooperation while neglecting restriction” in the public security agency, prosecution department, and courts. The prosecution department and the court are not involved in a case in the substantive sense; they only confirm the results provided by the investigation agencies. This type of legal pattern also leads to the continuing emergence of false and erroneous cases that start from the wrong premise, follow the wrong path, and end with the wrong conclusion, making it difficult to substantiate the trial.
| Path Suggestion: a Feasible Path for the Substantial Cross-Examination of an Appraisal Opinion Provided by a Third-Party Appraisal Institutions Entrusted by the Investigation Agency|| |
Rationalize the relationship between the client and the appraisal institution
Except in private prosecutions, investigation agencies are used for cases of property loss in criminal litigation and the appraisal institutions are mostly third-party social appraisal organizations. To prevent third-party appraisal institutions from attaching too much to the entrusting agencies, the author believes that efforts can be made from the following aspects: first, appraisal institutions should be randomly designated (for example, the appraisal institution of the Beijing court's civil and commercial cases is indiscriminately selected by the Beijing High Court). All intermediate courts and grassroots courts have no discretion to effectively prevent the dependent relationships with which appraisal institutions and the entrusting agency are familiar. The existing practice of investigation agencies having fixed appraisal institutions should be discontinued. Second, appraisal institutions should be given a clear authority. The appraisal institutions must be entitled to the relevant materials of the entrusted appraisal case and have the right to identify the appraisal purpose, the appraisal requirements, and other necessary information. Because the identification requires the corresponding case information, if the appraisers do not understand the case situation, the identification is unlikely to reach the correct conclusion. The appraisal institutions and appraisers must have the right to refuse identification in matters beyond the scope of the appraisers ability or because necessary materials cannot be provided. This is the basis for fully guaranteeing an independent appraisal; if there is no right to refuse identification, no matter what reason the entrusting agency has to make an appraisal, it is likely that errors will occur. This not only damages the authority of the appraisal institution, but also damages the quality of the case, and it is easy for identification of errors to cause false and erroneous case outcomes. In addition to the appraisal materials provided by the entrusting party, the appraisal institutions and their appraisers must carry out the necessary on-site physical reconnaissance, obtain other relevant data, and inquire about relevant witnesses and victims. Under these circumstances, the third-party appraisal institution cannot be able to obtain relevant materials or question relevant personnel on its own and must be assisted by the public security and judicial bodies. Therefore, the appraisal institutions and their appraisers should be given the right to request help from the entrusting authority.
Establish a hierarchical mechanism for accountability of appraisal institutions
The lack of a corresponding mechanism for accountability is a leading cause of improper performance or violation of the law during identification by the appraisal institutions. To avoid this occurrence, it is imperative to establish an accrual mechanism of accountability for appraisal institutions and appraisers. The author believes that efforts can be made from the following aspects: first, the subject of responsibility and the type of responsibility should be identified. It should be distinguished as to whether the problem is caused by the identification of the appraisal institution beyond the scope of its appraisal ability or the appraiser's negligence in their own duties. Responsibility can be imposed and disciplinary action enforced if both are to blame. Second, establish a hierarchy of responsibility tracking should be established. For the appraisal institutions, general negligent behavior can lead to fines or warnings. Serious negligence can be punished by public announcement, ordered rectification, and restrictions on business acceptance. If an illegal act is suspected, the appraisal institution may have their accreditation qualification revoked. For the appraisers, general negligence can lead to fines or warnings as punishment. If there is serious negligence, the appraisal qualification of the appraiser can be revoked, and if there is illegal behavior, the criminal responsibility of the appraiser can be investigated.
Improve the court's review and judgment of appraisal opinions
The appraisal opinion is finally submitted to the court as evidence for review and judgment, whether under the “direct words” rule of the civil law system, the “hearsay evidence” rule of the Anglo-American law system, or the Chinese rules of evidence recognition. The submitted evidence can only be used as a basis for the final decision after both parties have been interrogated and judged by the court. The evidence must be cross-inquired in court and witnesses must appear in court to accept the cross-examination of both the prosecution and the defense. The court will inevitably be required to validate its cross-examination to determine whether the appraisal opinion can be used as a basis for finalizing the case.
To improve the effective cross-examination of the appraisal opinion, the author believes that we should commence with the following aspects: first, establish a trial-centered system of litigation and reform the relationship between the public security authority, the prosecution departments, and the courts. A trial-centered system has two fundamental requirements: the vertical fundamental requirement is that “the public security, prosecution departments, and courts should focus on trial activities, and investigating and reviewing prosecutions are the preparatory stages of the trial, and it should be tested by court trials whether their tasks are completed or not;” and the horizontal fundamental requirement is that “court activities should be centered on the trial activities to ensure the substantiation of the trial.” Only by establishing a trial-centered litigation system can we correct the concept of emphasizing entity over procedure and avoid the court's excessive reliance on the investigation agency to entrust the social appraisal institution to make property loss appraisal opinions. This will encourage the court to effectively verify the appraisal opinions and maintain neutral judgment, ensuring the fairness of the trial. Second, effectively implement the appraisers' court appearance system and expert assistant system as stipulated in criminal procedure law. To promote the court's effective cross-examination of the appraisal opinions, Criminal Procedure Law establishes the appraiser's court appearance system and expert assistant system, which is aimed at ensuring effective identification of appraisal opinions. In addition, the appraiser's personal safety guarantee system has been established to relieve the anxieties involved in identification and testimony. For the appraiser's court appearance system, the court shall clearly notify the applicant that the defense should provide evidence or materials as confirmation of the appraisal institution's errors or defects in the appraisal procedure and their influence on the conviction and sentencing of the case. In this case, the judge should advise the appraiser to appear in court. In view of the fact that the defense, in practice, is not able to provide relevant expert support personnel for court appearances, the court may provide a list of expert witnesses in the corresponding professional fields. This witness is determined by the defense after application to the court when they have been unable to find a person from the relevant field to testify. The court will provide a list of specific expert personnel, and after determination, the court will notify the expert assistants and the expenses will be borne by the defense. Third, improve the composition of the collegial bench. To make up for the lack of expertise of the judges' appraisal opinions, personnel with relevant appraisal knowledge can be admitted to the collegial bench to judge the specialist appraisal opinions of the case and assist the collegial bench. Specific rules may include the introduction of people with relevant fields of expertise into the jury. If the case is found to require professional participation, the court may entrust a juror who has knowledge in the relevant field to join the collegial bench to effectively judge the appraisal opinions and ensure the trial substantiation.
Construct a limited secondary appraisal system
One problem that cannot be ignored in the current appraisal system is how to analyze multiple opinions. Based on the equality of prosecution and defense and to guarantee the fairness of litigation, we should give the prosecution and the defense an equal right to participate in the appraisal. However, to prevent excessive multiple and repeated identifications, that may result in a waste of litigation resources and add to the difficulty of the judge's adoption, the author proposes the following reform ideas for the judicial appraisal of property loss in criminal litigation: first, give the prosecution and the defense a separate but sequential right to apply for appraisal – the investigation agency has the first appraisal authority. If the defendant has concerns about the appraisal opinion, they may apply for a second appraisal, having given a satisfactory reason for their concern (if there is an error or flaw in the appraisal procedure, it can have a significant impact on the conviction and sentencing of a case). In this case, the second appraisal institution is randomly selected by the court from a generated list of appraisal institutions, and the defendant should cover the expenses. For the two appraisal opinions, there is no such thing as a high or low order and the court should decide whether to adopt an opinion and if so, which one to adopt. Second, the reason for the adoption of an appraisal opinion by the court should be stated in the judgment and respond to the appraisal opinions provided by both parties. Third, the two parties are given the right to apply for reconsideration to the court; however, the adoption of the appraisal shall not be stopped during the reconsideration. The reconsidered result shall be answered before the case is concluded and the parties shall be notified in writing. After reconsideration, if it is considered that there is a problem in the appraisal that seriously affects the judicial justice, the court may request a review by the appraisal institution. The reviewing members shall be composed of the appraisal committee of the appraisal institution (but the original appraisers shall not participate in the appraisal committee) and the original appraisers may be required to explain the problem when necessary during the appraisal period.
| Conclusion|| |
The Fourth Plenary Session of the 18th CPC Central Committee proposed a “trial-centered” litigation system reform that, on a horizontal level, necessitates trial substantiation and ensures that the evidence required for conviction and sentencing is effectively verified in court, thus preventing the occurrence of unjust and erroneous cases caused by an inability to validate the evidence. Appraisal opinion is more difficult to validate than other evidence, and a lack of expert knowledge of the parties has an influence on the effective cross-examination of the opinion. Therefore, to effectively cross-examine the evidence, it is necessary for all parties to the litigation to prioritize effective cross-examination, forming a joint effort to effectively verify the appraisal opinions. This article is written with this ambition and hopes to provide some help for the trial substantiation of appraisal opinions.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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