杜闻

(中国政法大学，北京 100088)

　　【摘 要】 在英美两国民事诉讼中，代表当事人出庭作证的多为“党派性专家”。此类专家分为两种：咨询型专家及出庭型专家。后者是种典型的证据来源，其不但受到证据开示及发现程序的拘束，也应接受交叉询问的检验。但在绝大多数情形下，前者却并非如此。在对抗制下，当事人及其代理律师对该两种党派性专家的滥用是个难以克服的痼疾，其集中体现在对党派性专家的“选购”中。由于“法院专家”制度持续遇冷，以及“诉讼特权(the litigation privilege)”对专家选购“呵护有加”等因素的影响，法院难以真正遏制和消除“专家选购”的现象。这一“困境”集中体现在三种相互纠缠的“两难问题”上：一是“法院任命的中立性专家”与“对抗制”诉讼模式的运转及维持存在着根本的冲突。二是“党派性专家”及其“选购活动”虽然符合“对抗制”诉讼模式的要求，但却有可能导致法院在个案中实现实体正义的诉讼目的落空。三是作为一项悖论的两面，证据开示及发现程序与英式“保密特权”及美式“工作成果保密特权”间持续存在着对立和紧张关系。

　　【关键词】 英美民事诉讼;专家选购;规制困境

　　【中图分类号】D915.13

　　【文献标识码】A

　　【文章编号】1674-1226(2019)04-0403-16

　　On expert shopping in Anglo-American civil trials and its plight of regulating. Du Wen. An associate professor of civil procedure law, China University of Political Science & Law (CUPL)

　　【Abstract】 In civil litigations of England and the United States, it is quite common for the partisan experts to provide trial testimonies on behalf of the party who hired them. This type of experts can be further divided into two groups: the consulting experts and the testifying experts. The latter is a typical evidentiary source, which is not only subjected to the proceedings of Disclosure and Discovery, but also is tested by the cross-examination. The former, however, is not subjected to these rules in most cases. . The abuse of partisan experts has been a chronic and durable weakness in Anglo-American civil trials. That problem has been typically embodied in the inappropriately conducted activities of “expert shopping”. As a combined result of a few factors, such as court-appointed experts have been continuously unfavored, as well as the powerful protections provided by the so-called “the litigation privilege”, it is almost impossible for courts under the Adversary System to deter or to eliminate the activities of “expert shopping”. This plight is vividly demonstrated by the following three intertwined dilemmas: firstly, there is a fundamental conflict between the running of Adversary System and the system of “court appointed experts”; secondly, even if the system of “partisan experts” and its related “shopping” are in line with the Adversary System, their improper performance and is very likely to defeat the overarching judicial objective of achieving justice in an individual trial. Thirdly, as the two opposing sides of a paradox, there has been a conflicting and strained relation between “the litigation privilege” of England (or by “work-product protection” of the States) and their counterpart of Evidence Disclosure and Discovery.

　　【Key Words】Civil actions of England and the United States, Expert shopping, Plight of regulating