forensics

Appraisal conclusions are statutory types of evidence. With the development of science and technology, appraisal conclusions are being used more and more widely and frequently in the litigation process. However, not every case requires the use of judicial appraisal as a technical means. The two cases have similar controversies. The following two cases are separated by ten years and are located in two places. The focal points of the disputes in the cases are very similar, but the final handling methods are quite different.

Case number one

This is a dispute over arrears of project payments in an earthwork contract. The plaintiff a city (county-level city under the jurisdiction of Jiaozuo City) engineering company (hereinafter referred to as the engineering company), the defendant the second engineering office of a bureau of the Ministry of Railways (hereinafter referred to as the second engineering office). At the beginning of 1994, in order to realize the national resource adjustment plan for the transportation of coal from north to south, the second manager department (hereinafter referred to as the second manager department) under the second engineering office of a certain bureau of the Ministry of Railways undertook the construction of the section from Yueshan in Henan Province to Houma in Shanxi Province. Part of the task of the railway. In April 1994, the second manager department subcontracted part of the subgrade and earthwork of the project to the engineering company. On May 1, 1994, the engineering company began to organize construction. As of March 1995, the company had completed construction Due to the slow construction of the engineering company, the progress of the project has been affected. In order to end this situation as soon as possible, the two parties negotiated and reached a termination contract on the amount of earthwork completed by the engineering company and comprehensive consideration of other factors. When the defendant thought that all the relationship between the two parties in the construction of the roadbed had ended, in 1995, the engineering company became the second engineering office (because the second manager department did not have the legal person qualification, it was regarded as the second The Engineering Agency was the defendant) and only paid 730,000 yuan for the project payment due to 3.73 million yuan, and sued the Jiaozuo Intermediate People’s Court on the grounds that it was still in arrears with the project payment of 3 million yuan, requesting a judgment that the Second Engineering Office should pay the arrears and ten thousandths per day. Three liquidated damages, and provided the earthwork settlement agreement and the earthwork contract agreement to the court. Among them, the earthwork settlement agreement shows that the roadbed earthwork constructed by the engineering company can be settled at one time, and the second manager department will pay the engineering company 3.73 million yuan for the project, and no further expenses will be incurred. There are four joint agreements in total, one and three joints shall be transferred to the second engineering office, and the second and fourth joints shall be kept by the engineering company; the project contracting agreement shows that the unit price of earth and stone works is temporarily set at 17.24 yuan/m³. The plaintiff claimed that the construction company completed 102583.13m³ of earth and stone, and calculated the project price at 17.24 yuan/m³ to 1,768533.10 yuan; the plaintiff claimed that the two sides still disputed 34,654.06m³ of earth and stone, worth 597435.99 yuan, and the loss of equipment waiting for work was 1,858,400.60 yuan. The total amount is 4,224,369.60 yuan, and it is said that the 3.73 million yuan project fund reached in the settlement agreement with the earthwork is the result of multiple negotiations between the two parties. The two pieces of evidence are mutually corroborated and seem to be sufficient to support the plaintiff’s litigation claims. As the defendant’s second engineering agency’s litigation agent, the author has neither a soil settlement agreement nor a project contract agreement (the defendant has not signed with the plaintiff at all). All have the seal of the defendant's unit, and the defendant cannot tell that the seal on the agreement is false, and can only find a breakthrough from the content reflected in the evidence provided by the other party. After investigation and evidence collection, the author found that because the two parties could not reach an agreement on the contract price, they did not sign the project contract agreement; the two parties did reach an earthwork settlement agreement, but the confirmed project cost was 730,000 yuan. The agreement was worked by the second manager department. Personnel Zhao drafted the project and filled in the amount of 730,000, and the agreement was in quadruplicate. After the contract of the second manager department was stamped and signed by the representative, it was sent to the engineering company for signature and seal, and the engineering company manager Zhang A certain person left all the four agreements written by the second manager department on the grounds that the clerk who kept the seal was absent and unable to seal the seal, saying that after the seal was completed, he returned two copies to the second manager department and later became the second manager department. When asked whether the agreement was sealed, Zhang claimed that the agreement was lost and promised to fully approve the content of the agreement. Obviously, the "3" in the project payment was added by the engineering company before the actual payment of "730,000" of the project payment. Although the above facts exist, as the defendant, there is no strong evidence to overturn the engineering company. After the facts were made, the defendant presented the following two indirect evidences: First, the unit price of the earthwork in the agreement signed between this unit and other contracting units did not exceed 7.11 yuan/m³, which was much lower than the 17.24 yuan/m³ in the contracting agreement provided by the plaintiff. ; Second, provided the certification materials of the engineering staff who drafted the agreement at that time. In the trial, Zhang said that the amount of the project payment in the earthwork settlement agreement brought by the defendant staff was blank. After negotiation between the two parties, Zhang himself filled in the three numbers "373", that is to say, the dispute between the two parties It depends on whether "373" is formed at one time. For this, only technical means can be used. Therefore, the author requests to verify the authenticity of "373". Appraised by the Jiaozuo Public Security Bureau: the “3” in the hundredth place and the “73” in the tenth place in the engineering section were not formed in one writing, and “373” was redrawn. It was found that the “373” was actually "73". With this appraisal conclusion, plus the unit price of the earthwork in the agreement signed with other contractors provided by the author, the court of first instance supported the defendant's claim and ruled to reject the engineering company's claim. The engineering company refused to accept it and appealed to the Henan Provincial Higher Court. In the second instance, based on the application of the engineering company and with the approval of the Second Engineering Office, the Henan Higher People’s Court entrusted the Ministry of Public Security of the People’s Republic of China to re-appraise the amount of the project payment in the earthwork settlement agreement. The inspection result shows that the "3" in the hundreds of "373" and the following "73" in the earthwork settlement agreement are not formed at the same time. The combination of the hundreds of "3" and "73" in "373" is the same, but the relative content different. Since the facts ascertained by the court of second instance are consistent with the facts found in the first instance, according to the appraisal conclusion of the Ministry of Public Security, the ruling: rejected the appeal and upheld the original judgment. The engineering company was still dissatisfied with the ironclad evidence, and applied to the Henan Higher People's Court for a retrial based on the discovery of new evidence. During the retrial, the engineering company provided it with an arrears note of "Earthworks settlement of the engineering company was 3.73 million yuan, and 3 million yuan still owed, which will be paid in installments" issued by the second manager department. The conclusion is contradictory and requires another identification. The court of retrial held that: there is no contradiction between the two appraisal conclusions, and there is no need for re-appraisal; the arrears mentioned by the engineering company stated that it was generated based on the "3,730,000" yuan in the settlement agreement between the two parties, and the "373" million yuan was not It is true that the arrears of 3 million yuan cannot exist in isolation because there is no legal relationship basis on which it relies. It is believed that the retrial claim of the engineering company cannot be established and the original judgment is maintained.

In this case, the evidence provided by the plaintiff at the time of the lawsuit was an earthwork settlement agreement signed and sealed by both parties. Although "373" appears to have been redrawn, the redrawing may not be untrue; the earthwork contract agreement with both parties’ seals, although There is no representative to sign, but the seal of the unit can certify the approval of both parties. When the defendant responded to the lawsuit, there was neither a settlement agreement on earthwork, which could not mean that the one-hundred "3" was added by the other party afterwards; nor was there a contracting agreement for earthwork (because it had never signed with the other party). Before the court commissioned the appraisal, the only evidence that the author had as the defendant was the contractual agreement signed with other contracting units to prove the unit price of the earth and stone contracts of other units. Besides, there was no strong evidence to overturn the plaintiff's evidence. From the first instance to the second instance and then to the retrial, the defendant’s original fragile evidence system was effectively reinforced, and what made the defendant stand invincible was the appraisal conclusion throughout the case. The appraisal conclusion became the weapon of victory in this case. The following case also revolves around the authenticity of a documentary evidence, but the processing method chosen by the author is completely different.

Case two

Private lending disputes. Qin, the plaintiff in this case, claimed that Sun (defendant) and his wife borrowed 300,000 yuan from him on August 1, 2004, and agreed to pay it back within two years. Sun's husband, Zhang, handwritten an IOU. In September 2005, Zhang went abroad. On the eve, Qin learned that Sun’s name was registered on the real estate certificate of Sun’s couple, and asked Zhang to change the name on the IOU to Sun. Later, Zhang sent Sun’s signature from abroad. , The blank note that was still the date of the initial loan was handed over to Qin, and Zhang asked him to write the content of the IOU on the note. After the loan period expired, because of multiple unsuccessful requests from Sun, he filed a lawsuit in the court. The author acted as the defendant Sun's litigation agent. After investigation and evidence collection, I believe that the IOU was forged by Qin. In terms of the form of the IOU, the IOU presented by Qin to the court is only the size of a business card. The word "IOU" starts at the edge of the paper, and Sun's signature is on the left side of the middle of the paper, which does not conform to normal writing standards. There are three stamps of Sun's name, and one of them is obviously different from the other two. From the perspective of the formation process of the IOU, Sun is fully capable of writing and does not need to send back a blank IOU. Zhang also has the ability to write and does not require the plaintiff Qin to write a letter. From the content of the IOU, first of all, Sun went abroad to settle in December 2002, his first entry record was June 4, 2006, and Sun did not know the plaintiff in this case, so there is no fact that he borrowed money from Qin. ; Secondly, Qin stated in the complaint that "Sun borrowed 300,000 yuan from him on August 1, 2004 and issued an IOU." During the court trial, he also claimed that Sun’s husband, Zhang, split in July and August 2004 A total of 300,000 yuan was borrowed from him. First, Zhang wrote the IOU, and then he wrote the content of the loan on the blank IOU sent back by Sun on behalf of Zhang. The statement was contradictory; again, the plaintiff stated in the trial that Zhang Tell him that he borrowed to repay the mortgage. Since he had a mortgage, he must have a mortgage. Knowing that the defendant’s house had been mortgaged, Qin still stated on the IOU that the house was used as a security mortgage, which was contradictory; finally, The author provides circumstantial evidence to support: First, Zhang’s will (Zhang died on August 1, 2006) did not involve borrowing, and Zhang’s financial management account was sufficient, there was no financial difficulty, and there was no need for borrowing; 2. Beijing’s Xuanwu District People’s Court (2007) Xuanmin Chuzi No. 01632 Civil Judgment and Beijing No. 1 Intermediate People’s Court (2007) Yizhong Min Zhongzi No. 07094 Civil Judgment have confirmed that Yang (Zhang Zeng The tenant who entrusted him to help him find a house) The house lease contract signed with Qin based on a huge non-existing debt of 400,000 yuan is invalid, and Qin is required to move out within a time limit and compensate Sun for the rent loss. It can be seen that the IOU issued by Qin to the court is forged. The court accepted the author's opinion. In addition, during the court hearing, when the court verified Qin's relationship with Sun and his wife, Qin confirmed that he and Sun were acquainted with Sun, saying that "He and Sun's husband Zhang were originally neighbors. Sun and his wife bought a house in 2002. Later, I met Sun several times during the house renovation. After the house was renovated, he saw Sun when he went to find Zhang. Sun knew about Zhang’s borrowing from him. When he met Sun, Sun returned Talk to him about borrowing money.” According to Qin’s statement, it can be concluded that Sun knew about Zhang Lin’s loan from him in 2004. This conclusion is obviously not valid. As a result, the court ruled that the plaintiff’s request for the defendant to repay the loan and pay interest on the overdue payment was not supported. The plaintiff refused to accept it, filed an appeal, and subsequently withdrew the appeal.

The focus of the dispute between the two parties in this case is the authenticity of the IOU, which is similar to the first case. In this case, on the one hand, the author stated the reason why the IOU was untrue from the form, formation process and content of the IOU. On the other hand, based on Zhang’s will and Zhang’s deposit situation, it proved that Sun did not need to borrow. The argument provided evidence, so that the author's proposition continued to be consolidated, and finally successfully accepted by the court. The reason why the author chose different treatment methods for the two cases with similar circumstances is that the evidence in the two cases is different. Therefore, the author's use of evidence must also be different. The appraisal conclusion is the key to victory in the first case, but this type of legal evidence is not necessary for the second case. The following introduces the appraisal conclusions that have a decisive impact on the first case.

1. Summary of the appraisal conclusion

The development and progress of the level of social productivity has brought about two effects on the investigation of the facts of the case in the civil trials of the people’s courts: On the one hand, the cases are becoming more and more complex and difficult, and the cases involving more and more problems that need to be identified. It has become a common phenomenon in trial work; on the other hand, human beings have enhanced their ability to understand the objective world by using high-tech, and it is more likely to approach the objective truth of cases through identification. Identification has become an important means of proof in civil litigation.

(1) The concept and formation of the appraisal conclusion

The conclusion of the appraisal refers to the conclusion made by the appraiser after analyzing and identifying the special issues in the case based on the case materials provided by the appraiser using his own expertise. Common appraisal conclusions in civil litigation include document appraisal, medical appraisal, technical appraisal, accounting appraisal, engineering cost appraisal, etc. Among them, the appraisal of the document is the most common. The appraisal in the second case of this article belongs to the appraisal of the document.

In short, the appraisal conclusion is the conclusion drawn from the judicial appraisal activity. According to the "Decision of the Standing Committee of the National People's Congress on the Management of Judicial Expertise" that came into effect on October 1, 2007, judicial authentication refers to the identification of specialized issues involved in litigation by experts using science and technology or expertise in litigation activities. And judging and providing appraisal opinions. The so-called appraisal opinion is the appraisal conclusion. In other words, forensic appraisal is the prerequisite for the formation of appraisal conclusions. The essence and ultimate purpose of forensic appraisal is to provide appraisal conclusions for judicial organs.

(2) Special functions of appraisal conclusions

According to Article 63 of the Civil Procedure Law, appraisal conclusions, like documentary evidence, physical evidence, audio-visual materials, witness testimony, party statements, and inquest transcripts, are all statutory evidence in civil litigation and have the general functions of civil litigation evidence: First, From the point of view of the parties, evidence is a weapon to protect the legitimate rights and interests of the parties; second, from the point of view of the judge in a civil case, the evidence is the basis for the judge to distinguish the authenticity of the disputed facts. In addition, as an independent type of legal evidence, the appraisal conclusion also has the following two special functions.

The conclusion of the appraisal can transform the evidence. The so-called transformed evidence refers to other evidence such as documentary evidence and physical evidence in a case, which can be transformed into an expert conclusion through identification. In other words, it refers to the ordinary evidence provided by the parties, which can be turned into critical scientific evidence for the verdict through the identification and judgment of the expert. Transformed evidence embodies the function of an expert to help judges review evidence and reflects the importance of judicial expertise.

The conclusion of the appraisal can confirm the evidence. The appraisal conclusion is a kind of indirect evidence. However, due to the particularity of the appraisal conclusion and the scientific nature of the appraisal conclusion, judges often consider the appraisal conclusion to be superior to other evidence when reviewing and judging evidence, and the appraisal conclusion has become an important criterion for judging the authenticity of other evidence. .

Although the appraisal conclusion plays an important role in the litigation, the many defects of the appraisal conclusion in judicial practice should not be ignored.

(3) Problems in the appraisal conclusion

Although the country is constantly regulating various judicial appraisal activities, in current judicial practice, there are still some problems that need to be solved urgently in appraisal conclusions.

First, there are many types of judicial authentication institutions and their settings are chaotic. Among the many appraisal institutions, some are set up within judicial institutions, some are subsidiary units of administrative agencies, and some are administrative agencies themselves. It is easy for people to judge the effectiveness and strength of appraisal conclusions based on the administrative level of the appraisal agency. The tendency is that this is not only unfounded in law, but also does not meet the objective standards of evidence admissibility. It will inevitably lead to the fact that the administrative level of the appraisal institution is emphasized in determining the case, and the fundamental standard of whether the content of the appraisal conclusion is reliable and accurate is ignored, which violates the basic litigation Evidence jurisprudence will inevitably seriously endanger the justice of litigation.

Second, there is a lack of legal standards for judicial authentication procedures, and repeated authentication is serious. In order to ascertain the facts of the case, it is very necessary for the judicial organs to commission judicial appraisal on some specialized issues. However, on the one hand, because some appraisal institutions are driven by economic interests, they may make wrong appraisal conclusions. On the other hand, because the parties are superstitious about the administrative level of appraisal conclusions, judicial practice often encounters multiple forensic appraisal conclusions in the same case. phenomenon.

Third, the good and bad forensic experts are uneven, and the authentication lacks credibility. Since the law does not set strict entry columns for institutions and personnel engaged in judicial authentication, the level of the appraisers varies; at the same time, due to the lack of strict operating rules and corresponding supervision, the objectivity, authenticity and impartiality of the appraisal conclusions It is difficult to guarantee.

In summary, the appraisal conclusion plays an important role in the litigation. This important role is fully reflected in the first case of this article, and it has become the winning weapon in this case. However, due to the fact that there are still many imperfections in judicial appraisal activities, so , Should not be superstitious about the probative power of appraisal conclusions, the key lies in correct and reasonable use. It can be seen that in the process of civil litigation, what is more important than the conclusion of the appraisal is the correct use of forensic appraisal by the lawyers and judges. This is the key to the successful restoration of the truth of the case in this case.

2. Lawyers' use of judicial expertise in civil litigation

The focus of the disputes in the above two cases is also the authenticity of the documentary evidence. Why would they adopt two completely different treatment methods? The German philosopher Leibniz said that there are no two leaves that are exactly the same in the world. There are no two identical cases in the world. As an attorney in litigation, you need to adopt different response strategies according to the specific circumstances of the case, and use judicial expertise correctly and reasonably to achieve the best litigation effect.

In the first case, the plaintiff provided the earthwork settlement agreement and the earthwork contracting agreement to the court when the plaintiff sued. If the earthwork contracting agreement of other units is not contacted, the two evidence materials are mutually corroborated and sufficient to prove the plaintiff’s claim. Compared with the plaintiff’s obvious evidence advantage, the defendant is completely at a disadvantage. At the time of the prosecution, there was neither an earthwork contract agreement to prove that the “3” in the hundredth place was added by the plaintiff afterwards, and there was no earthwork contract signed with the plaintiff. The agreement is to refute the unit price of the earthwork contract shown in the contracting agreement provided by the plaintiff, and only the earthwork contracting agreement signed by this unit and other contractors can be provided to the court, and it can only prove that the unit price of the earthwork of other units is significantly lower than that of the plaintiff’s earthwork. The unit price shown in the project contract agreement may cause the judge to reasonably doubt the plaintiff’s evidence, but it is not sufficient to prove the proposition of the plaintiff. The evidence provided by the defendant only ends here. If you want to prove that the plaintiff’s evidence is forged, fundamentally There is no strong evidence. In this case, you can only use technical means to apply for forensic appraisal and use the appraisal conclusion to restore the facts, prove your doubts about the authenticity of the evidence, and persuade the judge to support your claim. The Jiaozuo Public Security Bureau and the Ministry of Public Security’s appraisal conclusions on the formation time of “3” and “73” strongly supported the defendant’s claim, strengthened the defendant’s evidence system, and revealed the truth to the greatest extent. This appraisal conclusion supports that the defendant is always invincible from the first instance, the second instance to the retrial, and achieves the best litigation effect. Since the defendant represented by the author in this case does not have the slightest evidence advantage and the evidence system is very thin, only with the aid of judicial expertise can the proposition of the party be proved. Therefore, the author chose a completely different approach to the second case in this case.

In the second case, there was only one IOU supporting the plaintiff’s request, which was solitary evidence. Of course, it was not that the solitary evidence necessarily failed to prove its claim, but the full proving effect of the solitary evidence must be based on the fact that the other party could not overturn the orphan evidence. As the premise, this is the reason why the defendant won in this case. Although the defendant knew that the IOU was forged by the plaintiff, he did not apply for judicial authentication. On the one hand, because the plaintiff’s statement could ostensibly explain the fact that the plaintiff wrote the IOU, this denied the defendant’s application for judicial authentication. The possibility of the plaintiff engaging in a head-on confrontation; the more important reason is that the defendant possesses a large amount of evidence to refute the plaintiff’s litigation request, that is to say, the defendant has an absolute advantage in evidence in this case, and a series of indirect evidence is sufficient to form a chain of evidence. To prove our own litigation claims, there is no need to conduct a judicial appraisal that is time-consuming and labor-intensive for this case and does not achieve the effect of the litigation. Therefore, for this kind of situation where the defendant has absolute evidence advantages, the application for abandonment is contrary to the plaintiff’s lone evidence. For judicial appraisal, it is more suitable for this case to proceed from the litigation claims of the party and the chain of evidence formed by a large amount of indirect evidence.

It can be seen that on the basis of ensuring the objectivity, impartiality and authenticity of the appraisal conclusion, the lawyer's correct and reasonable use of the appraisal conclusion according to the specific circumstances of the case can restore the facts to the greatest extent, thereby supporting the party's litigation request and rebuttal reasons. , And achieve the best litigation effect.

Article 72 of the Civil Procedure Law of the People’s Republic of China stipulates that “if the people’s court considers a special issue to be appraised, it shall be handed over to the statutory appraisal department for appraisal”. It can be seen that in the process of civil litigation, whether or not the evidence is a special issue, whether Which appraisal department is necessary for appraisal, and which appraisal department should be handed in for appraisal, these issues are all in the court. Without the court's consent, the lawyer's appraisal application can only be in vain. In this case, without the judge's correct and reasonable use of judicial expertise, it is difficult to achieve the best litigation effect with the efforts of lawyers alone. Therefore, in the process of civil litigation, the correct and reasonable use of judicial expertise by judges is equally important.

3. The judge's use of judicial expertise in civil litigation

According to Article 72 of China’s Civil Procedure Law, the judge’s use of forensic appraisal includes whether the fact to be verified is a special question, whether the special question is necessary for appraisal, and which appraisal department should be used for appraisal. Aspects are essentially within the discretion of the judges, and the question of "which appraisal department should be handed over" is not in the scope of the author's discussion. The following will only study the judge's application of the first two aspects.

"Whether the facts to be proved belong to the specific question" is the first question that the judge faces when deciding on judicial appraisal, and it belongs to the scope of fact finding in the process of civil litigation. At present, the application of evidence rules is becoming more refined in the determination of facts in civil trials, but there is a rough phenomenon in the application of judicial expertise. The prominent problem is that the relationship between judicial expertise and trial determination is confused. The facts reviewed, judged, and affirmed shall be handed over to the appraisal institution and the appraiser for judgment and affirmation. This is a manifestation of the blurring of the scope of judicial expertise and the scope of civil trials. Compared with trial determination, forensic expertise has obvious limitations, which are mainly manifested in the following three aspects: First, judicial expertise only solves special problems, and trial determination is for ordinary facts, which should be determined by trial. No appraisal is required; second, forensic appraisal has its limitations in cognition of objective things and methods; third, appraisal conclusions are generally embodied as indirect evidence in the nature of evidence. Based on the above three points, in the process of civil litigation, the judge's judgment on "whether the fact to be proved belongs to a special issue" is very important. The judge makes this judgment based on the lawyer’s knowledge and the appraisal application made accordingly, and the second is his own judgment based on the specific circumstances of the case. Of course, the appraisal application submitted by the lawyer also requires the judge’s judgment on the specific circumstances of the case. The judge's judgment based on the specific circumstances of the case is essentially the grasp of the "specialized issue". This is the core of "whether the fact to be proved is a specialized issue", then, what is a specialized issue? Specialized problems refer to problems that require the use of scientific empirical methods and special logical reasoning to get the results of recognition. The recognition and judgment of specialized problems requires the use of the special abilities and technical means of the appraisal agency and the appraiser. Therefore, the judge’s grasp of “whether the fact to be proved is a special issue” is transformed into a grasp of the “special issue”. This grasp is more embodied in whether a certain fact to be proved in a case can pass various evidences. Judgment to be proved. When the evidence material has sufficient evidence to prove in the case, the problem reflected by the evidence material is not a specialized problem, and there is no need for judicial authentication, such as the second case of this article; When an evidence material lacks corresponding evidence to prove it, and the evidence material has become the focus of disputes between the plaintiff and the defendant or the evidence material is insufficient to confirm the facts of a case that is important for the judgment, the evidence material Only the reflected problem can become a specialized problem, and it is necessary for the judge to exercise the discretion to entrust judicial expertise, such as the first case in this article. Here, the author actually combines the first two issues that judges face in deciding on judicial appraisal, because these two issues were originally integrated in the judge's judgment process.

Four, conclusion

As the progress of social productivity promotes the continuous development of science and technology, forensic appraisal is increasingly used in civil trial practice, and people are increasingly inclined to use technical means to restore the truth. The good litigation effect achieved by the cases in this article is the result of judges and lawyers using judicial expertise together correctly and reasonably. However, such cases are not all cases. It must be noted that there are still many imperfections in the judicial expertise system in China in practice, and legislation is still needed. The joint and continuous efforts of all parties.