The expert opinion is professional opinions provided by a neutral judicial expertise institution to the court on some factual issues of a case. As a type of statutory evidence, it plays an important role in China’s civil litigation.
The expert opinion (“鉴定意见” in Chinese) is professional opinions provided by a neutral judicial expertise institution to the court on some factual issues of a case. The expert opinion is one of the eight types of statutory evidence stipulated by China’s Civil Procedure Law (CPL), and therefore plays an important role in China’s civil litigation.
I. What is the expert opinion?
The expert opinion is, under the entrustment of the court, the opinion provided by the designated judicial expertise institution on the professional factual issues of a case. It is an important reference for the fact-finding by the judge. The expert opinion should only be about the facts of the case, and the application of law can only be determined by the judge.
In practice, the most common professional issues are technical problems, such as the authenticity of the signature, the causality between environmental pollution and pollution discharge, the paternity testing, etc., and value appraisal, such as the evaluation of project cost in construction projects.
This post will only discuss the expert opinion of court-appointed judicial expertise institutions. In addition to that, the parties may also entrust judicial expertise institutions for expert opinions, which, however, would generally not be admitted by the court once being questioned by the other party.
II. Who can be the expert?
The judicial expertise institution shall be selected from the list compiled by the court. Local courts will compile their own lists of judicial expertise institutions, most of which are local. Therefore, which judicial expertise institutions you can choose from depends on the court before which you bring a lawsuit.
The list of judicial expertise institutions is classified by types. In China, expertise institutions in their respective areas would generally obtain accreditation from administrative authorities or industry associations, which sets a key reference for local courts to make their list of judicial expertise institutions accordingly. For example, the Ministry of Justice and its local government counterparts will register and make a list of judicial expertise institutions for forensic, physical evidence, audio-visual data, and environmental damage; the Ministry of Housing and Urban-Rural Development and the corresponding functional departments of local governments will grant accreditation to project cost evaluation institutions. Generally, the court will select from these qualified institutions and make their final list of judicial expertise institutions.
After the judicial expertise institution is determined, the expert shall be appointed by the institution. The parties have the right to apply for the recusal of the expert.
III. How to initiate the authentication?
Generally speaking, the authentication is initiated by the parties’ application. The parties may apply to the court within the time limit of presenting evidence, and the authentication will start upon examination and approval of the court. The court will mainly review the relevance between the matters to be authenticated and the facts to be proved, as well as the evidential significance to the facts to be proved.
In addition, when the court deems it necessary to ask for expert opinions, but neither party has submitted the application, the court is entitled to initiate the authentication ex officio. However, in practice, considering the costs and other issues, the court will generally not take the initiative. Instead, the court will prompt the parties to do so by informing their right to apply for authentication and the disadvantages of abandoning such right.
IV. How to select the expert?
After the court allows the authentication application, it will select a judicial expertise institution randomly from the list by drawing lots or computer lottery. The parties may also agree on one judicial expertise institution from the list. However, it is difficult for both parties to reach a consensus in practice, so under most circumstances, the institution is randomly selected by the court. [1]
The selection method makes the judicial expertise institution and the expert a neutral third-party to the parties of the case. In contrast, the expert assistant in China (for the expert assistant, more details can be found in our forthcoming post) is engaged by and acts on behalf of one party only.
V. What is the effect of expert opinion?
Expert opinions are generally heavily weighted by judges, owing to the neutrality of judicial expertise institutions and experts, and the fact that judges often lack professional abilities on authentication matters. The expert opinion used to be called “the expert conclusion” (鉴定结论) in CPL before its 2012 revision, and had a higher probative force than that of other documentary evidence. At that time, some judges relied too heavily on expert opinions to make decisions, and even left legal issues to judicial expertise institutions. For example, in medical malpractice tort cases, some judges let the experts make conclusion on whether the medical institution commits “fault”. [2] However, “fault” is the subjective evaluation of medical staff, which is a typical legal issue and should be determined by the judge himself/herself.
In order to reverse this erroneous practice of “substituting case trial by authentication” (以鉴代审), the provisions stipulating that the expert opinion has a higher probative force have been canceled in Chinese laws. In 2014, the Supreme People’s Court (SPC) also issued Guiding Case No. 24 to remind judges to distinguish between factual and legal issues and not to rely entirely on expert opinions.
Case No.24 was about a traffic accident that occurred in Jiangsu Province. The plaintiff sued to recover the damages sustained by him in consequence of being knocked down on the crosswalk by a car of the defendant. The judicial expertise institution held that the osteoporosis had contributed 25% to the plaintiff’s disability. Therefore, the court of first instance reduced the plaintiff’s disability compensation by 25% according to the expert opinion. The court of second instance overturned the first-instance judgment on the grounds that the premise of deducting disability compensation was that the plaintiff had committed a fault in the legal sense to the accident; although the plaintiff’s physical condition had a certain impact on the damages, the plaintiff himself committed no fault in the legal sense. Therefore, it was erroneous for the court of first instance to deduct the plaintiff’s disability compensation according to the expert opinion.
While weakening the role of expert opinion, the right of the parties to challenge the expert opinion has been strengthened in Chinese laws. If the parties have objections to the expert opinion, they may require the expert to appear in court for examination and engage an expert assistant to ask questions. If the expert refuses to appear in court without justified reasons, the judge shall not take the expert opinion so made as the basis for the final decision.
It should be noted that although the role of expert opinion has been weakened, it still plays a very important role in the judge’s decision making, especially in the cases when it is difficult to distinguish factual issues from legal issues. We highly recommend that the parties take the expert opinion seriously, and if necessary, engage an expert assistant to examine the expert opinion.
VI. Authentication costs
The authentication costs vary from different authentication matters and locations of the institutions. For the authentication of forensic, physical evidence and audio-visual materials, it will be the judicial administrative departments of provincial governments to set the unified price. For other authentication matters, the parties should better first check if there is a governing price. If not, the parties can only make a deal with the expertise institutions, who are at an obvious disadvantage though.
Generally, the authentication costs shall be prepaid by the applicant, and finally borne by the losing party.
[1] 见陈如超：《民事司法鉴定中的法官行为规制》，载《法商研究》，2018年第2期
[2] 宋平：《医疗侵权过错司法鉴定之缺陷与改革》，载《中国司法鉴定》，2010年第1期
Photo by zhang kaiyv (https://unsplash.com/@zhangkaiyv) on Unsplash
Contributors: Chenyang Zhang 张辰扬 , Zhuo Yiwei 卓懿伟
