Zhejiang Liqun Law Firm Zhu Meicong

Summary: The application of judicial appraisal in civil litigation judicial practice is becoming increasingly widespread, and the resolution of many types of cases requires appraisal. The appraisal conclusion plays a decisive role in the handling of cases. The ancient law of Roman law, "appraisers are judges of facts", also shows the important role of judicial expertise in litigation activities. In the process of representing civil litigation cases, whether lawyers attach importance to the cross examination of judicial appraisal conclusions, whether they can proficiently apply relevant legal provisions, and fully exercise the agent's right to cross examine appraisal conclusions often determine the success or failure of the case outcome. This article intends to discuss the current situation, causes, significance, and methods of cross examination of judicial appraisal conclusions in China from the perspective of lawyers, and explore how to provide high-quality legal services for parties in civil litigation judicial appraisal cross examination activities.

Key words: expert assistant of judicial expertise conclusion cross examination of Procedural justice

1. The current situation and causes of cross examination of judicial appraisal conclusions

Although China's Civil Procedure Law and related judicial interpretations provide for the system of cross-examination of judicial appraisal conclusions, such as the appearance and questioning of appraisers, in judicial practice, the cross-examination of judicial appraisal conclusions by parties and their agents often becomes mere formality, making it difficult to touch the essence of the appraisal conclusion. As a result, a large number of 'counterfeit science' Fake scientists' openly enter the court and are admitted as evidence. This seriously affects the trust of parties and the public in judicial appraisal work, and in turn affects the acceptability of relevant litigation processes and judgment results, affecting social harmony and stability. The main reasons for the above situation are:

1. The legal provisions are too principled, and the Civil Procedure Law and relevant judicial interpretations only have principled provisions for the system of "expert witness appearing in court" and "expert assistant", without clear implementation rules, incomplete regulations, and poor operability.

2. There is no prescribed procedure for the disclosure of appraisal conclusions. Many courts do not deliver the appraisal conclusion to the parties before the trial, and only present or read it out during the trial, making it difficult for the parties to express sufficient and accurate cross-examination opinions on the appraisal conclusion in court.

3. Relevant personnel (including parties and lawyers) have insufficient understanding of the importance of cross examination of judicial appraisal conclusions. Believing that judicial appraisal is made by appraisers entrusted by the court, blindly worshipping the appraisal conclusion, believing that "the appraisal has a conclusion, and the parties' words are useless", and neglecting the cross examination and examination judgment of the appraisal conclusion.

2. The significance of cross examination of judicial appraisal conclusions (opinions)

1. But there is also a possibility of distortion in the appraisal conclusion. The appraisal activities are affected by many factors, such as the advanced level of appraisal instruments and equipment, the level of expertise of appraisers, the uneven level of professional ethics of appraisers, and the continuous development of Scientific theory and practice of appraisal. The appraisal opinions are not completely correct.

2. The appraisal conclusion is not a natural basis for finalizing the case. Applying for appraisal of specialized issues in litigation is the activity of the parties involved in collecting evidence. According to legal regulations, appraisal conclusions are only a form of evidence and cannot be used as the basis for a judgment without cross examination.

3. Cross examination of expert conclusions is the inevitable requirement of Procedural justice. "According to the theory of Procedural justice, legal procedures are not only designed to seek fair results, but also to safeguard some procedural values independent of the judgment results." [3] Only after the cross examination of both parties can the expert conclusion ensure the realization of the parties' procedural rights, such as the right to ask questions, the right to object, and so on, in order to safeguard the realization of substantive justice with Procedural justice.

3. How Lawyers Cross examine the Conclusion of Judicial Appraisal

（1）Measures to be taken by lawyers to cross-examine judicial appraisal conclusions outside of court trials

1. Provide inspection materials and verify the quality of the inspection materials provided by the other party. Provide authentic, complete, and sufficient inspection materials to the appraisal institution, and provide cross examination opinions on whether the inspection materials provided by the other party are true, related to the appraisal facts, and should be included in the scope of the appraisal materials, in order to ensure the authenticity of the inspection materials themselves and the objectivity of their connection with the facts of the case. In addition, when the appraisal materials cannot be obtained due to objective reasons, apply to the people's court for retrieval.

Legal basis: Article 13 of the General Rules for Judicial Appraisal Procedures issued by the Ministry of Justice stipulates that the client shall provide authentic, complete, and sufficient appraisal materials to the judicial appraisal institution, and shall be responsible for the authenticity and legality of the appraisal materials. Article 17 of the Several Provisions on Civil Litigation Evidence of the Supreme People's Court (hereinafter referred to as the "Civil Evidence Provisions"): If one of the following conditions is met, the parties and their litigation representatives may apply to the people's court to investigate and collect evidence:... (3) Other materials that the parties and their litigation representatives cannot collect on their own due to objective reasons.

2. Timely obtain judicial appraisal reports from the court. After the relevant matters are included in the judicial appraisal process, maintain working contact with the handling personnel of the court responsible for judicial appraisal work. Upon learning of the judicial appraisal report, promptly obtain the appraisal report from the people's court and inform the client of the appraisal conclusion. Together with the client, review the content of the appraisal report and prepare for cross examination.

Legal basis: Currently, there is no clear provision in the law that evidence, including appraisal conclusions, should be delivered to the parties before the hearing. However, the time limit for proof stipulated in Article 34 of the Civil Evidence Regulations and the pre-trial exchange of evidence system stipulated in Article 37 all reflect the right of the parties to obtain evidence before the hearing.

3. Submit an application for the appraiser to appear in court. Lawyers should submit a written application to the court requesting the appraiser to appear in court in a timely manner before the hearing after receiving the appraisal report. In judicial practice, due to the fact that appraisal agencies are entrusted by the court, most judges hold a high level of trust in the appraisal conclusion. In cases where the parties do not make a request, judges generally do not notify the appraiser to appear in court to participate in the cross-examination. However, the appraisal conclusion itself cannot directly answer any cross-examination and questions. If the appraiser does not appear in court, it essentially deprives the parties and agents of the right to cross-examine, and doubts about the appraisal conclusion cannot be eliminated. Therefore, in cases of doubts about the appraisal conclusion, lawyers should submit a written application requesting the appraiser to appear in court to participate in the cross-examination.