关键词: 以鉴代审, 鉴定意见, 专家辅助人, 法律判断

Abstract: The phenomenon that medical appraisal is over dependent on by judges in medical damages litigation is labeled as the “replacement of trial by appraisal”. Nevertheless, empirical study indicates that in the cases where the appraisal opinions are adopted, the ranges of the portion of liability corresponding with the types of liability in the appraisal opinion are wide, it is not rare for judges to decide liability and its portion not relying on the appraisal opinion, and the medical institution can be held liable without appraisal opinion. This data make the statement of replacement unpersuasive. The medical appraisal opinion is only a kind of evidence, helping judges to make the facts clear. There is gap between the replacement statement and the real function of appraisal. The misunderstanding is brought by the judges intention to avoid risks from the performance review and complaint from the parties, the complaint from the parties and some researchers also intensify the misunderstanding. The approach to replace appraisers by technical judges and expert assistants does not work. The evaluation system for medical case judges should be improved, and the parties should be encouraged to participate in the appraisal procedure.

Key words: replacement of trial by forensic appraisal, appraisal opinion, expert assistant, legal judgment