关键词: 以鉴代审, 鉴定事项, 要件事实, 鉴定意见, 符合性审查

Abstract: The amended Several Regulations on Evidence in Civil Litigation issued by the Supreme People’s Court in 2019 have not resolved the problem of “substituting trial by appraisal” in judicial practice. The constraints on the behaviors of judges are ignored, and excessive regulations on the behaviors of forensic appraisal institutions and litigants are set. As the dominant person in a lawsuit, a judge’s failure to review the appraisal matters, non-participation in the appraisal process and the focus on the form review of the appraisal opinions are the fundamental reasons causing the result of “substituting trial by appraisal”. The corresponding path and method should be followed by the involvement of judicial power in the appraisal process. To be specific, the identification of the facts should be taken as the center when the appraisal is initiated, and the parties shall undertake the burden of proof of “minimum evidence”, while the judge should accurately position the “specific issues” and determine the appraisal items through “party debate and functional review”. At the time of carrying out the appraisal, it is necessary to control the appraisal materials and the qualifications of appraisers. When reviewing the appraisal opinions, it should be considered whether the appraisal opinions and appraisal items, appraisal materials and appraisal basis, appraisal basis and appraisal reason conform to one another.

Key words: substituting trial by appraisal, appraisal item, major fact, appraisal opinion, compliance review