就司法鉴定而言,我国民事审判中的一个痼疾是法官的以鉴代审。导致该问题的根本原因有:其一,在判定涉案科技等专门性问题时,法官面临“外行判断内行”的困境。其二,我国学界及实务界存在着以科学上的中立性及完整性取代法律上的中立性及完整性的倾向。在此倾向下,人们较为关注司法鉴定的行政管理改革等外围配套问题,忽视对以“诉讼规制”为中心的技术争点听审程序的探讨和构建。在借鉴两大法系相关制度的基础上,我国应利用《民事诉讼法》、《人民陪审员法》等有关法律的规定,构建中式技术陪审员制度及相应的前提性技术争点听审程序。这对遏制以鉴代审问题将大有助益。

As far as judicial authentication is concerned, one chronic problem in China's civil trial involves judges' illicit usage of authentication opinions to replace their adjudging duties thereof (Yi Jian Dai Shen). The root causes of that problem are as follows: First, judges are faced with the dilemma of “laymen appraising professional matters” when deciding specialized issues, such as science and technology involved in the case. Secondly, there is a tendency in our academic and practical circles to substitute legal neutrality and reliability for scientific neutrality and reliability. Under this inclination, people pay more attention to the peripheral supporting issues, such as reforms of unified administrative supervisions against judicial authentication activities, while neglecting the discussion and construction of the hearing procedure for technical disputes centered on “hearing regulating”. On the basis of drawing on the experience of the relevant systems of Britain, the United States and other civil law countries, China should make full use of the provisions of related laws and regulations such as the Civil Procedure Law and the People's Assessors' Law to design our system of technical assessors and the corresponding pretrial hearing procedure for relevant technical issues. This will be of great blessing in curbing and solving the aforesaid problem of Yi Jian Dai Shen.