Concept, object and subject of forensic examination. Legal foundations of forensic expertise, its subjects of subjects of forensic expert activities

The need for further development of ideas about the subject of forensic examination in the conditions of formation to market relations is shown in the works of leading scientists and specialists in the art, which have already been mentioned above. They also examined the scientific foundations for the modern interpretation of the content of all classes, childbirth and types of forensic examination. The focus when developing the scientific foundations of the subject of forensic examination is traditionally devoted to objects, objectives and methods of judicial expertise. In our opinion, no less serious attention should be paid to the development of the role of subjects of forensic evaluation expertise.

The development of these approaches will help not only find ways to solve the practical tasks of judicial evaluation examination, but also significantly increase the legal culture of the entire assessment community. On this basis, it is also possible to ensure its successful reform and transition to the principles of self-regulation, as well as strengthen the prevention of possible offenses in this area. It is important and providing scientific support for the activities of the law enforcement and judicial system in this, new enough for them, the sphere.

It should be borne in mind that the provisions of the Civil Code of the Russian Federation are not always correctly developed in the evaluation legislation. For example, in Art. 8 of the Federal Law "On Appraisal Activities in the Russian Federation" is a provision that the assessment of the assessment facilities is mandatory "when assigning debt obligations related to the objects of the assessment belonging to the Russian Federation, the subjects of the Russian Federation or municipalities." But in the Civil Code of the Russian Federation, this type of transaction as "assignment" is not provided. As for the "concession", then you can give way "the right of claim", and not a "debt obligation". At the same time, the "replacement of the debtor" is provided in compliance with certain conditions.

The presence of such legal "errors" at the level of federal laws and regulatory acts, a departmental and local regulatory framework, significantly complicates the work on the creation of scientific foundations for describing the subject of judicial evaluation examination, as well as the practical work of judicial experts.

It is necessary to specifically emphasize that the description of the object of judicial and evaluation expertise in this work should not be identified with the description of the assessment object in the evaluation report submitted for the examination. One should not identify the object of judicial examination and with the text of the evaluation report itself, as well as with a set of other documents submitted for the examination. With such a simplified approach, there is a threat to exhaust the subject of forensic examination and damage to the proper departure of justice.

The study of the features of the subject of judicial evaluation examinations on the basis of generalization of practical experience shows that in addition to objects, tasks and methods of forensic examination, the role of subjects of forensic expertise is clearly manifested. For example, most of the staff of state forensic institutions has a higher education in the specialty 030502 "Judicial Examination". At the same time, legislation does not limit the ability of the investigator (investigator), the prosecutor or court of appointing a judicial expert from among those who do not have education and special knowledge of this specialty. That is, in completely similar cases, knowledgeable persons who have fundamentally different special knowledge and practical experience can be appointed by experts. It is quite natural that the conclusions of such experts can vary significantly.

This situation has a negative impact on the administration of justice. Despite the importance of this problem, its research and development of scientifically based methods of decision is still given insufficient attention.

With regard to the specifics of objects of forensic evaluation examinations of various types, the studied studies allowed us to draw the following conclusions. The application of the established rules of judicial economic expertise to the results of appraisal activities in practice means a study by an expert of a certain set of documentation, the preparation and production of which the appraiser is provided for by the current legislation. In most cases, a contract for the implementation of appraisal work and a report on the assessment of a particular object is considered. At the same time, the judicial expert is very quickly convinced that the general provisions of the Civil Code of the Russian Federation, establishing the procedure for the preparation and conclusion of the contract, were not disturbed by the appraiser. But then how can I prove that the result of the assessment was received inappropriate and most likely differs significantly from the true one? And even in such conditions, when the accumulated experience of scientists and specialists in traditional childbirth and types of forensic expertise for evaluation activities is useless?

To answer this and a number of other topical issues, it is necessary, first of all, to determine what is the object of forensic examination in relation to the scope of valuation activities and the business planning of the activities of economic entities. Many studies and development in this area are based on the findings of R.S. Belkin that objects of forensic examination can be both material objects and processes. Other authoritative scientists in this area complement the characteristics of the object of the forensic examination with a combination of media of various kinds of information that are used during the production of judicial expertise. At the same time, the uniform definition of generic and specific objects of forensic examination for forensic expertise and for criminal, and there is still no for civil proceedings.

The subject of the forensic examination of any class, genus and species is determined by the content of the tasks solved by it. In relation to the assessment of property assessment is the establishment with the help of special knowledge of judicial expert-evaluators of facts and circumstances, characterizing the process and results of the assessment in its relationship with unlawful actions of the subjects of the subjects that arose in this regard. Such facts may concern the content and completeness of the data used, characterizing the state of the object of the assessment, its legal status, the features of the approaches used, models and assessment methods, calculation algorithms, etc.

Developing the provision on the objects of forensic examination, as a complex complex of certain material objects and processes, as well as sources of information that has the necessary legal status, you can allocate several types of such processes, to the greatest extent affecting the evaluation result. For their systematization, you can use various methods and classifying signs.

In the first classification option, it is possible to offer the use of a system of quantitative characteristics of the evaluation process as a whole, with the gradual allocation of elementary processes and their connections. It is possible to carry out the classification of elementary processes as such as such, as well as their "short" and "long" chains and more complex status-information processing algorithms for various types of evaluation. This will reflect the nature and causes of the emergence of uncertainties of various types to find ways to minimize their impact on the results of the examination.

Obviously, all elementary processes must fully comply with the provisions of the current legislation. Then any difference of any of the described elementary processes can be the basis for appropriate actions of a judicial expert to identify the causes of such differences and possible consequences as for the following links of the appraiser's actions and for the results of the assessment as a whole. The whole set of identified differences will allow, first of all, to correctly put questions for a judicial expert, and then prepare a proper rationale for expert opinion.

When using the described classification principles, it is possible to create a detailed formalized description of the elementary processes that characterize the work of the appraiser and other subjects of appraisal activities at each of the three stages of the formulation of the objective of the assessment, and its decisions, as well as archiving interim and outcome results of the assessment and registration of the evaluation report.

At all listed stages of expert work, not only the compliance of the actions of the appraiser recorded in the documents submitted for the examination, the requirements of criminal, civil and special legislation, the legislation on appreciation activities, as well as the laws of natural and humanitarian sciences underlying all appraisal activities are checked. Quite often detected errors of calculations, unreasonable selection of certain formulas and coefficients. In many cases, appraisers use unsuccessful assessment models and algorithms that contribute to the accumulation of errors to the level of several tens of percent and even more.

Another feature of the study of proper implementation by the appraiser of its actions is the "default figure", that is, the absence in the evaluation report not only the detailed description, but even references to the implementation of a number of mandatory actions.

Development of methods for identifying such complex objects of forensic examination with a multi-level system of dynamic characteristics and connections of the entire set of elementary processes can be attributed to the subject of judicial examination in the field of appraisal activities. Developing ideas about the subject of forensic examination, it is possible to indicate substantially other ways to classify objects of forensic examination for the scope of the enterprise (business), intangible assets, customs or cadastral assessment and other types of valuation activities and assessment objects. The development of such systems of a formalized description of the subject of judicial expertise also makes it much more accurate and more specifically to formulate questions to the judicial expert, which contributes to the higher quality of the judicial evaluation examination as a whole.

In order to give a strict scientific substantiation of the main components of the structure of the subject of judicial evaluation examination - objects, objectives and methods of expert research, as well as their relationships and features, it is necessary to structure the evaluation process itself. Options for such structuring should be based on the fundamental principles of procedural legislation and mathematical logic. This will allow you to develop a quantitative description of the most important processes for assessing objects of any degree of complexity, on the basis of which the creation of both modern information technologies can be created to provide forensic evaluation. In addition, in the structure of the subject of judicial evaluation examination, it is necessary to take into account its important component associated with ambiguously formulated requirements for the subjects of expert activities, as mentioned above.

The first, the most general level of structuring objects of judicial evaluation examination based on the above classification of the assessment processes, can be represented in the following form.

The process of maximum duration, complexity and with the maximum amount of uncertainty. It begins with the conclusion of an assessment agreement and ends with the release of the evaluation report. These two documents connected by the appraiser actions system within the assessment process are a self-evident object of forensic examination.

Schematically, this complex dynamic process of forensic examination, reflecting the features of the subject for the activity under consideration illustrated in Fig. one.

Under the transition to the second, more detailed level of the classification of the processes of transforming status information during the evaluation work, you can select the following structure from several groups of elementary processes.

Allocation of groups of elementary processes for the transformation of documented information at the level of the main stages of the formulation of the task of assessment, its decisions, archiving documentation with source data for evaluation, its interim and final results and registration of the evaluation report.

1. The process of setting the task of the assessment from which the work of the appraiser begins. It begins with the development of the text of the Treaty on the assessment and its noticeable part - the assignment tasks. This process ends with the preparation of a documentation kit with the source data system for evaluation. The system of actions connecting these two sets of documents includes the actions of the customer of the assessment, joint actions of the customer of the assessment and appraiser, the appraiser's actions or joint actions of several appraisers, as well as joint actions of the appraiser with representatives of various organizations with the information necessary for the proper formulation of the assessment task .
2. The process of solving the assessment problem begins with analytical work on the set of documentation with the source data for the assessment and ends with the formation of a set of its own appraiser's documentation that reflects the characteristics of the evaluation process and its results. The system of actions to solve the assessment problem includes both the individual actions of the appraiser and its collective actions with other appraisers and other entities that have the information necessary to solve the assessment task.

Fig. 1. Schematic representation of the subject of judicial evaluation examination and obtaining a final document on the results of expertise: I is an object of forensic examination,

II - Process of forensic examination, III - the result of a forensic examination is to edit the most important parts of the report text and the formation of a set of necessary applications.

Even such a simplest, "one" and "three-star" classification of the entire system of elementary processes for the transformation of documented information, which determine the content of the proper appraisal assessment of the proper assessment, makes it possible to remove a number of uncertainties noted above the object of judicial examination, as well as methods and procedures for its implementation .

It is obvious that all the elementary processes of transformation of documented information should fully comply with the provisions of the current legislation. Then any difference of any of the described elementary processes in the real report on the assessment from the "reference" elementary process can be the basis for appropriate actions of a judicial expert to identify the causes of such differences and possible consequences both for the following links of the appraiser actions and evaluation results. generally. Approximately the same scheme may analyze the conclusion of an expert by a person who appointed forensic examination during its assessment.

The whole set of identified structural features of the subject and objects of judicial evaluation examination will improve the quality of expert work, starting from a clear formulation of the objectives of expertise, the correct formulation of issues to the judicial expert, the methods of fulfilling the necessary expert works, and then prepare a proper justification for all sections of the expert opinion.

At the third level of classification It is possible to create a detailed formalized description of the subject of judicial and evaluation examination, including objects, objectives and methods of examination, based on a more detailed study of the elementary processes at each of the three stages of setting the objective of the assessment, its decisions, as well as archiving interim and outcome results of the assessment and registration of the evaluation report. A description of all the details of this process can be found in other works. The examples of the classification of elementary assessment processes for structuring the subject of judicial evaluation examination do not exhaust the possible directions of work for solving the problems described, since scientific research in this area is just beginning to develop.

Appointments of expertise, judicial experts and forensic expert institutions. Such a classification of subjects is caused by a system of actions and related legal relations arising in the process of legal proceedings.

The interaction and legal relationship of subjects of forensic expertise is carried out in the process of establishing evidence facts in two forms: procedural and necrosis. Relationships in the procedural form are due primarily to the laws and responsibilities of the subjects. In criminal procedure and civil procedural legislation, separate norms are enshrined, regarding the investigator and judge. Regarding the figure of the expert and the head of the expert institution, there are only some provisions in the legislation, to the most indicative of their responsibilities.

The federation of this gap was the adoption of the Federal Law "On State Forensic Expert Activities in the Russian Federation" 2001, the rights and obligations of the head of the state forensic expert institution and expert were enshrined and significantly expanded. Thus, for example, Article 199 of the Code of Criminal Procedure speaks regarding the head that he instructs the production of an examination by an employee or several experts of this institution, explains to the expert of his right and responsibility, warns of responsibility for the gift of a deliberately false conclusion, taking his appropriate subscription. Article 14 of the Federal Law provides for other responsibilities of the head: to ensure control over compliance with the terms of the production of judicial examinations, the completeness and quality of the research carried out, without violating the principle of independence of the expert; to send the conclusion and materials to the body or the person who appointed an examination at the end of research ensure the conditions for maintaining the confidentiality of research results; Do not disclose the information that he became known in connection with the production of expertise. The head is obliged to provide the conditions necessary for conducting research, the safety of the presented objects and materials of the case; Comply with safety regulations and industrial sanitation. In addition to responsibilities, the head has the right to return the materials (ruling or defining on the appointment of forensic examination, objects of research and materials of the case) without execution, if there are no experts in this institution a specific specialty, the necessary material and technical base. The head has the right to apply to the authority (person) appointed forensic examination, on the inclusion of the commission of experts who do not work in this institution, if their special knowledge is necessary for the giving conclusion; Transmit part of the duties associated with the organization and production of expertise, to his deputy or head of the structural division. At the same time, he has the right to demand from a body or person who has appointed an examination, reimbursement of expenses related to: with compensation for storing the transport organization of the research facilities; transporting objects after their study; storage of research objects in the State Forensic Expert Institution; eliminating the consequences of explosions, fires and other extreme situations that were the result of income into this institution of objects of increased danger (art. 151). The federal law fully reflects the rights and obligations of the expert (Article 16, 17), many of which were not covered by procedural legislation. For example, an expert is not entitled to collect materials for the production of expertise, exercise forensic expertise as a non-state expert and others.

The procedural form is interacted by an expert and investigator. The expert can be invited to conduct any investigative action or carry out an experiment at the scene. The investigator, in accordance with the procedural legislation, has the right to be present in the production of expertise. This gives him the opportunity to directly observe the research process. He can put new questions before the expert and recommend more advanced research methods, the use of technical means. At the same time, the investigator is not the right to exercise any manual as an expert. It cannot give instructions on the mandatory use of a technique, influence the essence and content of the conclusion and conclusions.

The interaction of the expert and the judge has its own specifics, first of all, in the introduction of an expert in a lawsuit for the cottage of the conclusion or interrogation in court, a challenge to the court session. The expert in court can take part in the formulation of issues, to provide explanations about the possibility of conducting an examination in the courthouse or in a particular case of its production in laboratory conditions. The latter circumstance may be due to the fact that it is necessary to use technical means and dashboards to resolve the issues, a certain time for research.

The procedural form includes the interaction of the expert with the head of the expert institution. The judicial expert is an independent figure of the process, is personally responsible for the date of conclusion. These relations are enshrined by federal law, which was mentioned above and a number of departmental regulations. Along with this, the relations of these subjects are also due to a number of other equally important reasons, such as interpersonal informal relations that are not related to the production of a specific examination. Negative factors in informal relationships may adversely affect formal, for example, in the production of commission (integrated) or repeated examinations. As you know, the creation of a group of experts (commission) is carried out by a volitional decision of the head of an expert institution or person (body) appointed an examination. Therefore, in such cases, not only procedural and organizational, but also ethical and psychological requirements must be observed. The quality and success of the entire commission depends on the latter.

A special place is occupied by judicial experts of non-state judicial expert institutions or private experts. Their activities are carried out on the basis of the relevant licenses obtained in the manner prescribed by law. In the last decade, a number of associations and laboratories of independent examinations are formed. Along with such associations, expertise and private experts may be involved.

The necrossal form of interaction between the expert and the investigator (judge) is carried out in the form of consultations and certificates of reference. In this case, the expert as a knowledgeable person can provide great assistance to the investigator (court) when choosing one or another expertise, coverage of its capabilities, the need for quality and quantity of materials for its production, formulating issues to the expert.

§3. System of expert institutions

Expert and criminalistic units have been created for the implementation of the function of forensic experts in the system of internal affairs bodies. They are organized in all republican, regional, regional centers, cities of regional importance, in cities, settlements of district importance, as well as in departments (departments) of internal affairs at railway, water, air transport, in closed administrative and territorial entities.

In the expert and criminalistic divisions, judicial expertise on criminal cases and administrative offenses, treated internal affairs bodies are being carried out: Dactyloscopic Tusological, Honor, Technical Studies of Documents, Background and Videocamographic, Ballistic, Portrait, Cold Weapons, Materials, Substances and Products, Biological Weapons , food products, soil and botanical facilities, motor vehicles, fire and explosive industrial.

Examinations are carried out using techniques, equipment and other funds adopted in domestic and foreign forensic practices.

Along with the production of judicial expertise, employees of the forensic divisions act as specialists in criminal proceedings, taking part in carrying out investigative actions and, above all, in the inspections of accidents.

In addition to procedural activities, they are carried out in accordance with the established procedure, expert research on the tasks of the divisions of the internal affairs bodies engaged in operational investigative activities; Expert-criminalistic files and collections are conducted, develop together with other divisions of the event to improve their use in identifying, preventing, disclosing and investigating crimes.

Expert and forensic divisions provide practical and methodological assistance to investigative, operational units, inquiry authorities in the organization and use of forensic means and methods, ensuring their employees with information on the possibilities of expert and criminal departments in the fight against crime.

Expert and forensic units also carry out preventive activity, detecting on the basis of the analysis of the materials of expert practices and other forms of their activities, the conditions that are committed to committing crimes and developing proposals aimed at eliminating them. Expert and forensic divisions form a single independent service of the internal affairs bodies, independent of other services.

There are three parallel systems of expert units: territorial, transport and in regime settlements. Systems are interconnected by interaction relationships. The ECP structure corresponds to the structures of the internal affairs bodies in which they enter. The highest level of territorial expert-criminalistic service is the Expert Crime Center (ECC) of the Ministry of Internal Affairs of Russia. It functions on the rights of the Ministry of the Ministry of the Ministry and applies, according to the order No. 330-98, to the divisions directly to the Ministry of the Interior. The middle level of territorial units is expert and forensic management or a department in an independent subject of the Russian Federation - the region or the Republic; The primary or lower link includes departments, branches, groups in district (urban) departments of internal affairs.

The system of expert and forensic divisions on transport and in regime settlements coincides with the structure of these internal affairs bodies, the highest levels for them are the relevant departments of the GVDT or the 8th of the Main Department of the Ministry of Internal Affairs of Russia.

The service is centralized, has three main and two intermediate structural links. At the same time, the vertical is carried out by organizational and methodological management of professional service activities, horizontally - organizational management by the management of the internal affairs bodies. All forms and types of management eliminate interference with the procedural activities of employees of the service. The audit of the conclusions of experts is unacceptable, which is guaranteed by the criminal procedural law, the structural independence of the expert and forensic divisions from other services and departments of the internal affairs bodies. If necessary, checking the findings of experts is being made in the manner prescribed by law by appointing re-examination.

The highest service of service - the ECC of the Ministry of Internal Affairs of Russia is carried out by organizational and methodical, and, if necessary, the scientific and methodological management of the activities of the lower expert and forensic divisions, organizes and conducts professional training of expert-natural sources, phono, video cards, etc.; Organizes advanced training, retraining of managers and experts of expert and forensic divisions, provides control of the quality of training and activities of experts - employees of expert and forensic divisions.

With the ECC of the Ministry of Internal Affairs of Russia, an expert qualification commission is working, considering the quality of training experts in the production of expertise on childbirth and types adopted in the internal affairs bodies; The methodological and scientific councils operate, considering the most important issues of scientific, practical activities of the Expert and Crime Service.

In the ECC of the Ministry of Internal Affairs of Russia, all types of judicial examinations are carried out in the expert and forensic divisions of the internal affairs bodies of Russia (primary complex, repeated examination - on behalf of the investigators of the Ministry of Internal Affairs of Russia; repeated complex investigators of the peripheral bodies of the internal affairs).

Federal accounts are conducted in the ECC of the Ministry of Internal Affairs: bullets, sleeves and cartridges with traces of weapons seized from accidents; control bullets and guils of service and civil arms lost (abducted) weapons; Fake money, securities and documents made by the printing method and using technical means. At the same time, reference collections of various forensic facilities are underway for information support for production.

The average service of the service is represented by expert and criminalistic departments (departments) of republican, regional, regional, Moscow and St. Petersburg, internal affairs vehicles. At this level, all types of forensic examinations are conducted in the divisions on the profile adopted in the internal affairs bodies, as well as all types of expert and forensic activities.

A number of the forensic divisions of this link - basic - perform the functions of interregional expert units. They are conducting examinations on natural-scientific and engineering and technical directions as for their region, where they are deployed and for the "bush" of the regions.

Regional accounting of traces and other material evidence taken from places of unsecured crimes, as well as information and reference collections of facilities, usually acting as material evidence in the region, are underway to the middle units. Work is carried out on the implementation of investigative actions involving specialists.

Expert and forensic divisions of the middle link are organizational and methodological work, primary training of employees of lower divisions. The primary service of the service amounted to expert and forensic units (departments, branches., Groups or laboratories) internal affairs bodies in the cities of regional and district importance, cities areas, as well as on railway transport. They are mainly traditional forensic examinations: dactyloskopic, tusological, technical research of documents and cold weapons, less frequently illuminated.

A number of criminalistic units perform the functions of interdistrict and are created either for the expert and forensic provision of the activities of bodies that do not have in their composition of the relevant units, or to perform certain types of expert and forensic activities (trips to the scenes, production of individual types of expertise) on behalf of the authorities, opportunities Expert and forensic divisions of which are limited. Interdistrict units are organized as part of existing district criminalistic divisions, organizationally obey the head of the expert and forensic division of the relevant regional level.

Along with the expert work, interdistrict divisions are conducted by traces and other material evidence made from non-excreted crimes, work is carried out on the use of technical and criminalistic means and methods in the fight against crime in the territory (transport highway), enshrined in GRUD, OWDT.

In the expert and foreskinistic service, a system of increasing the professional level of experts and quality examinations is functioning: each employee who occupies the expert's position should have a certificate for the right to independently produced a certain type of examination.

It is necessary to emphasize that in Russia, expert research is held not only in the system of the Ministry of the Interior, but also in research and expert institutions of other departments: the Ministry of Justice (Russian Federal Center for Judicial Examination), Ministry of Health (Psychiatric, Forensic Medical Examination), Ministry of Defense (SME system for military prosecutor's office, explosive industrial laboratories), Federal Security Service (Special Research Center). In recent years, this list has been replenished with expert divisions in the Federal Tax Police Service, in the Customs Committee.

Each of the listed expert institutions fulfills tasks for its agency (except the Ministry of Health). In order to eliminate various methodological approaches and interpretation in the production of judicial expertise in various departments in recent years, work is carried out on the certification of expert methods. Created a special interdepartmental council for the coordination of this work. The Council discusses the proposed expert methods for the study of material evidence and are recommended in the work of all interested departments. This does not mean that the Court is associated with any one procedure for researching evidence, but those who have passed the appropriate test and approved techniques significantly increase the accuracy of the results obtained. It is planned to regularly publish collections of passported techniques and send to interested departments.

§four. Computerization of forensic examination in modern legal proceedings

Speaking about the trends in the development of forensic examination, it is impossible not to affect the issue of modern computer technologies that provide ample opportunities to use information resources and developing extremely high rates in recent years.

It should be noted that up to the middle of the 80s. XX century Equipment available to experts, and primarily on special types of expertise, was analog type with the output of information on the display or the recorder. Computerization in this area began with the rapid development of computational equipment. Initially, the work was carried out in two directions: the modernization of the analog equipment and the development and implementation of new digital equipment into the expert practices. Moreover, the developed technical means for expert service often did not have foreign analogues. An example is the development of a technological process of implementing judicial phonoscopic examinations. There was an opportunity to introduce developments under this expertise into the practical activities of expert units of the Ministry of Internal Affairs, Internal Affairs of Russia. It was possible to put the production of expertise on the flow and to increase the expert load repeatedly.

State forensic expert activities are carried out in the process of legal proceedings by state forensic institutions and government judicial experts, consists of organizing and the production of forensic examination.

Thus, the above-mentioned article determines forensic expert activities carried out in specialized state forensic institutions and expert divisions of government agencies endowed with relevant powers as a species of state's activities.

A positive factor in state expert systems is a solid scientific base and accumulated rich expert experience. These knowledge is constantly improved due to the satisfaction of the needs of judicial and investigative practice, including modern equipment, which allows to carry out examination at a high scientific and technical level and introduce new methods and methods for expert research into expert practices.

It should be noted that the current procedural legislation does not contain norms, regulations governing the differences between experts carrying out judicial expertise in government expert institutions and non-state expert institutions, and just private experts.

Yet, this issue should be clearly resolved by the legislator, or by establishing full equality between expert organizations regardless of the forms of ownership, or by approving a certain list of expertise, which can be implemented only in state forensic institutions.

In forensic activities, subjects can be distinguished by entities involved in the production of forensic examination and endowed with relevant procedural rights and responsibilities.

So, subjects are:

First, organs and persons who apply to forensic examination (court of general jurisdiction, arbitration court, etc.);

Secondly, persons who carry out the preparation of production and directly the production of forensic examination - experts and experts, forensic expert institutions in the person of their leaders, his deputies, heads of structural divisions;

Thirdly, persons who have their own or presented interest in the case - the plaintiff, the defendant, third parties, the prosecutor, state bodies, local governments, etc.;

Fourth, persons with respect to which expertise is made - the plaintiff, the defendant, etc.

It should be noted, the plaintiff and the defendant can act in two qualities - those indicated in the third and fourth group of participants in forensic expertise, thus possessing relevant rights and obligations.

It is such a classification that is caused by actions that are associated with them with relevant legal relations arising in the process of trial. Such interaction and legal relationship occurs only in the process of establishing evidence facts in 2 forms: procedural and necrossal.

The organization and production of forensic examination is carried out by state judicial experts.

From what can be concluded, subjects are forensic expert institutions that perform functions on the organization of the production of forensic examination, as well as judicial experts who directly fulfill forensic examination.

Procedural legislation does not prohibit the forensic examination by employees of non-state expert organizations, non-requiem organizations, private experts.

Thus, the forensic examination can be made both in a state forensic institution and in a non-state expert organization. The current legislation makes it possible to produce specific persons with special knowledge in a particular area.

So, RCSE and CLSE have both the main and additional service zones. In the main zone, it is assumed to fulfill all types of judicial expertise, and in additional - only those that are not performed in the zonal (not central) LSE.

It is necessary to understand the moment, the main activity of expert institutions is to carry out judicial expertise.

It is important that the activities of the institutions (SEU) of the Ministry of Justice of the Russian Federation are carried out on the basis of the procedural legislation of the Russian Federation, the Law on State Forensic Expert Activity and in accordance with the instructions for organizing the production of judicial expertise in the State Forensic Expert Institutions of the Ministry of Justice of the Russian Federation.

RCLSE and LSE are permanent participants in research work conducted by the RFCE, where the scientific and methodological base in the field of forensic examination is constantly improved.

Regional centers serve the entire region, enshrined behind laboratories when they act as expert institutions to fulfill judicial expertise on new birth and species.

The Center must provide expert institutions of all departments, including law enforcement agencies, courts, legal universities in methodological and information publications, translations of foreign literature.

RFCSE performs:

Research and development work, and also gives advice;

Evaluation activities;

Non-judicial examination (under contracts);

Organizational and methodological management of regional SEU activities.

The federal executive authorities or the executive authorities of the constituent entities of the Russian Federation create relevant expert units, the main functions of which are the organization and production of forensic examination.

If the forensic examination is entrusted to the expert division, then in this case it performs functions, fulfills the responsibilities, has rights and is responsible as a state forensic institution.

The legislation clearly formulated the procedure for the elimination of the state forensic expert institution.

The issue of equality or priority of these institutions must still be regulated by the legislator by either the establishment of complete equality between expert organizations, regardless of the forms of ownership, or by approving a certain list of expertise, which can be implemented only in state forensic experts.

Each government forensic institutions have their own profile defined for them by the federal executive bodies, in accordance with which the forensic examination produces.

So, the next subject is the head of the state forensic expert institution. Its main function is the overall management of expert activities.

The status of the head is enshrined in the law on state forensic expert activities. Its main responsibility is the commissioning of the proceedings of the forensic examination by a specific expert or commission of the experts of this institution (Article 14).

What qualities should the head of forensic expertise?

The person who performs functions on the distribution of expert tasks must itself have a higher expert qualification, as well as a wide range of outlook and special knowledge in various types or types of examinations of this direction. The manager should be good to know the possibilities of his subordinates who best cope with the task. He is obliged to know in what cases the examination is carried out alone, and when the Commission of Experts. If a complete examination is assigned to one object, the head determines the sequence of their production.

The current law establishes both the responsibilities of the head and its right. So in accordance with Art. 14 The head clarifies the expert or commission of experts their duties and rights.

The head before sending a conclusion controls the completeness and quality of the study, that is, whether all objects presented to the examination have been studied; Whether all questions answered the expert; Are the findings of the expert in the content of the research part, etc.

However, situations may arise when the head of the forensic expert institution does not agree with the conclusions of the state judicial expert. In the legislation, this issue is not clearly settled. The law does not give the head of the state forensic expert institution to appoint another expert, as the examination has already been carried out. If, let's say, it will actually be re-repeated. The output is seen in the expression by the head of his opinion on this conclusion specified in the accompanying letter to expert conclusion.

In the competence of the head there is control over compliance with the terms of the production of expertise, taking into account the court established by the court. The legislator clearly establishes the responsibility of the head not to disseminate the information that has become known to him in connection with the examination.

The head is also responsible for compliance with the safety regulations during the operation of equipment for expert research in the organization entrusted to him. Sometimes special conditions are needed to avoid damage to the life and health of people.

The legislator established the ban on the head to attract, without coordination with the authority or face approved by the forensic examination, persons not working in this institution.

The head should not give instructions, which subsequently can predict the result of the study conducted by the expert, as this may have a "direct" influence on the content of expert conclusions.

The rights and obligations of the head of the state forensic expert institution also apply to the head of the non-state expert organization. However, the issue of legitimacy of actions committed by the head of a non-state expert organization remains open. So, quite often the courts of general jurisdiction in determining the appointment of forensic examination indicate only an expert organization that it is entrusted. The appointment of a specific expert is made directly by the head of this organization, but this right is not presented with any regulatory legal act.

Thus, the actions in practice performs the head of the non-state expert organization, but their legitimacy remains in question. For example, quite often the courts of general jurisdiction in determining the appointment of forensic examination indicate only an expert organization that it is entrusted. The appointment of a specific expert is made directly by the head of this organization, but this right is not provided with any regulatory legal act. Since the head of the expert organization is a person who plays an important role in the production of judicial expertise, its competence must be clearly established by regulatory acts.

Due to the fact that the head of the expert organization is a person playing an important role in the production of judicial expertise, its competence must be clearly established by regulatory acts.

The next subject of forensic expertise is an expert. In accordance with Art. 12 of the Law on State Forensic Expert Activities, the State Judicial Expert is a certified employee of a state forensic expert institution, which produces a judicial examination in the order of performance of its duties.

The expert is an independent process of a process that has its own volume of procedural rights and obligations, it is it that it is distinguished from other subjects, including witnesses. Civil procedural legislation does not allow mixing the procedural functions of various participants in the process.

The expert belongs to the subjects of the Civil Process to the Implementation of Justice. A distinctive feature of such subjects is their disinterest in the outcome of the case.

The expert acts as a source of judicial proof - the conclusion of the expert. The main feature is that the expert does not have evidence-based information - it produces it during a special study with his professional knowledge. The expert becomes a carrier of evidence only after the study. This is what it differs from the witness, which is also a source of judicial evidence - testimony, but does not conduct any research, but it becomes only a carrier of information about facts as a result of a coincidence, as a result of what falls into any relationship with perceived facts.

Similar information.

Subjects of forensic expertise.

Subjects (participants) of forensic expertise are organs and persons participating in the production of forensic examination and endowed with relevant procedural rights and obligations:

1. Authorities and persons appointing forensic examination - court, judge, world judge, investigator, investigator, inspector;

2. Persons engaged in the organization of production and directly the production of forensic examination - an expert or experts, head of the forensic expert institution, his deputy, heads of the structural units of the forensic expert institution;

3. Persons participating in the case and having its own or presented interest - suspect, accused, defender, lawyer, victim, legal representatives, plaintiff, respondent, third parties, interested persons, a person in respect of which proceedings on administrative offense, prosecutor, state bodies, local governments;

4. Persons in respect of which expertise is made (persons subjected to expert research) is a suspect, accused, victim, witness, plaintiff, defendant.

At the same time, for example, the suspect, the accused, the victim, the plaintiff, the defendant can perform simultaneously in two qualities - a representative of the 3rd and 4th groups of participants in forensic expertise, possessing, respectively, the rights and obligations of those and others.

Interaction and relationships of subjects of expertise

in the process of its holding.

The interaction and legal relationship of subjects of forensic expertise is carried out in the process of establishing evidence facts in two forms: procedural and necrossal.

Relationships in the procedural form are due primarily to the laws and responsibilities of the subjects. Thus, the expert and other participants in the process have rights and obligations enshrined in procedural legislation. The rights and obligations of the head of the state forensic expert institution are fixed in the FZ OGSED.

The procedural form is interacted by an expert and investigator. The expert can be invited by the investigator to conduct any investigative action or carrying out an experiment at the scene. The expert is possible to attract to participate in investigative actions only in the presence of two grounds: an initiated criminal case; The presence of a decision made by the investigator on the production of expertise. The investigator may interrogate the expert to clarify and additions the conclusion previously given to them.

The interaction of the expert and the court has its own specifics, together, first of all, in the introduction of an expert in a lawsuit for the giving conclusion or interrogation in court, a challenge to the court session. The expert in court can take part: in formulating issues; give explanations about the possibility of conducting an examination in the courthouse or the need for its production in the conditions of an expert institution, the materials that must be provided to solve specific issues; Ask questions questioned related to the subject of expertise.

The interaction of the expert with the participants of the process is also occurring in the implementation of such their right, as a presence in the production of forensic examination.

The presence of process participants in the production of forensic examination is facultative, and not mandatory. NO FZ OGSED nor sectoral procedural legislation does not contain instructions on the obligation of the presence of any participant in the process in the production of forensic examination. It speaks only about the possibility of presence in the production of expertise participants in the process with this right. This right can be directly indicated in the law or be derived from other rights of participants in the process.

So, the Code of Criminal Procedure directly envisages the right of the investigator to be present in the production of expertise (Article 197 of the Code of Criminal Procedure), and the suspect, accused and his defender (Article 198 of the Code of Criminal Code of the Russian Federation) are given to this right. The derivative is the right to be present in the production of expertise for the translator and the legal representative of the minor (Part 2 of Article 18, paragraph 2 of paragraph 2 of Article 426 of the Code of Criminal Procedure).

According to Article 84 of the Code of Civil Procedure of the Russian Federation, persons participating in the case, entitled to attend the examination, except if such a presence may prevent research, a meeting of experts and making a conclusion.

Persons involved in the case have the right to be present during the examination and in the arbitration process (Article 83 of the APC RF), except if such a presence is able to prevent the normal work of experts, but not entitled to interfere with the course of research. When drawing up an expert and at the stage of the meeting of experts and formulate conclusions, if the judicial examination is conducted by the expert commission, the presence of the participants of the arbitration process is not allowed.

In addition, the presence of participants in the process in the production of forensic examination in the State Forensic Expert Institution is regulated by the requirements of Article 27,73-FZ, according to which:

In the production of forensic examination, those participants in the process that are provided by the procedural legislation of the Russian Federation may be present in the State Forensic Expert Institution;

The participants in the process present in the production of forensic examination are not entitled to interfere with the course of research, but may explain and ask questions to the expert relating to the subject of forensic examination;

When drawing up an expert of the conclusion, as well as at the stage of the Experts meeting and formulating conclusions, if the forensic examination is carried out by the Commission of Experts, the presence of participants in the process is not allowed;

In the event that the participant of the process present in the production of forensic examination prevents the expert, the latter has the right to suspend the study and apply to the cut, appointed an examination, on the abolition of the permission of the specified participant in the process to be present in the production of forensic examination.

According to the current practice, the presence of participants in the process in the production of forensic examination in most cases occurs, as a rule, in the production of expertise in civil and arbitration cases, at such an examination stage, as a conduct of expert examination. Permission to be present in the production of expertise is provided by the court, the investigator or investigator, which is indicated in the definition or decree on the appointment of expertise.

The procedural form includes the interaction of the expert with the head of the expert institution. The expert is an independent procedural figure, is responsible for this conclusion. These relations are enshrined by procedural legislation, 73-FZ, a number of departmental regulations.

Along with this, the expert and leader's relations are also due to both non-operational factors, for example, interpersonal informal relations that are not related to the production of a specific examination. Negative factors in informal relationships may adversely affect the formal relations regulated by law. Thus, the creation of the Commission of Experts in the production of commission examination is carried out by the volitional decision of the head of the expert institution. Therefore, in such cases, not only procedural and organizational, but also ethical and psychological requirements must be observed. The quality and success of the work of the entire commission, characterized in psychology, as a small group depends on the latter.

The necrossal form of interaction of the expert and the investigator (judge) is carried out mainly in the form of oral consultations on the appointment of expertise on specific cases and cottages of various information and written consultations. In this case, the expert as a knowledgeable person may provide great assistance to the investigator and the court when choosing one or another type of examination, coverage of its capabilities, the need for quality and quantity of materials for its production, formulating issues requiring permission by the production of expertise.

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1. Subjects of forensic expertise

2. Judicial expert, its procedural status. Rights and obligations of the head of the expert institution

3. Optimization of the form and content of expert opinions. Use of detention

List of used literature

1. Subjects of forensic

Subjects of forensic expertise are organs and persons appointing expertise, forensic expert institutions in the person of their leaders who organize the production of forensic examination, and forensic experts producing it.

The subject of forensic expertise is a state expert institution. State forensic institutions are specialized agencies of federal executive bodies, executive authorities of the constituent entities of the Russian Federation, created to ensure the execution of authority of courts, judges, inquiry authorities, persons producing inquiry, investigators through the organization and production of forensic examination.

The organization and proceedings of forensic examinations can also be carried out by expert divisions created by the federal executive bodies or the executive authorities of the constituent entities of the Russian Federation. In cases where the production of forensic examination is entrusted to the specified expert divisions, they carry out functions, fulfill their duties, have rights and are responsible as government forensic experts.

State forensic institutions are created and eliminated in the manner determined by the legislation of the Russian Federation.

The activities of state forensic expert institutions for the organization and proceedings of forensic examination are governed by the Federal Law "On State Forensic Expert Activities in the Russian Federation", the procedural legislation of the Russian Federation and is carried out in accordance with the regulatory legal acts of the relevant federal executive authorities.

The organization and production of forensic examination in medical institutions or their units that are not referred to in the federal executive authority in the field of health, are carried out on the basis of regulatory legal acts of relevant federal executive bodies adopted in conjunction with the federal executive authority in the field of health. In these institutions and divisions, forensic psychiatric examination cannot be organized.

State forensic experts of the same profile carry out activities on the organization and production of forensic examination based on a single scientific and methodological approach to expert practices, training and specialization of experts.

State forensic institutions produce forensic examination in accordance with the profile defined for them by the relevant federal executive bodies.

State forensic experts are compulse in obligatory proceedings for the bodies of the inquiry, the preliminary investigation bodies and vessels located in the territory, which is determined by the relevant federal executive bodies. If it is impossible to produce forensic examination in a state forensic expertiary, serving the specified territory, due to the lack of an expert of a specific specialty, the necessary material and technical base or special conditions for conducting research forensic examination for the bodies of the inquiry, preliminary investigation authorities and courts can be made State forensic experts serving other territories.

The activities of state forensic expert institutions for the organization and production of forensic examination for other states are carried out in accordance with international treaties of the Russian Federation.

The next subject of forensic expertise is the head of the state forensic expert institution. Which provides general management of expert activities.

The last subject of forensic expertise is an expert. In accordance with Code of Criminal Procedure, an expert is a person with special knowledge and appointed in the manner established by the Code of Criminal Procedure, for the production of forensic examination and giving conclusion.

2. Judicial expert, its procedural status. Rights and obligations of the head of the expert institution

Currently, the judicial expert acts as an independent, independent subject of the process with specific procedural duties and rights that distinguish it from other subjects. The independent position of the expert among other subjects of the process that promotes the implementation of justice is provided by its function of providing evidence in the form of a conclusion and a special procedural form of implementing this function. Moreover, the Code of Criminal Procedure, the COAP of the Russian Federation and the APC of the Russian Federation do not allow mixing the procedural functions between different participants in the process (for example, an expert and witness).

An expert, not possessing any evidence of any evidence, seeks her by conducting special experts with this purpose, the results of which draw up in the form of a written conclusion. Cottage expert on the consequence of the consequence (court) issues - the main responsibility of this subject of the process in the production of expertise, established by the Federal Law of May 31, 2001 No. 73-FZ "On State Foreign - Expert Activity in the Russian Federation" (hereinafter - the Law on Forensic - expertise), Code of Criminal Procedure, Code of Civil Procedure of the RSFSR, COAP of the Russian Federation and the APC RF.

In addition, the law on forensic expertise in Art. 16 Fastens the following expert duties:

To make a judicial examination to the production of the relevant state judicial and expert institution;

Carry out a complete study of the objects and materials presented to it;

Create a motivated written message about the impossibility of making a conclusion and send this message to the authority or face that appointed a forensic examination if: the questions set out beyond the expert's special knowledge; The objects of research and materials of the case are unsuitable or insufficient for research and giving conclusion and the expert refused to add them; The modern level of development of science does not allow to answer the questions raised;

Do not disclose the information that he became known in connection with the production of forensic examination, including information that may limit the constitutional rights of citizens, as well as information that make up the state, commercial or other secrecy protected by law;

Ensure the safety of the presented objects of research and case materials.

The expert fulfills the responsibilities that are provided for by the current procedural legislation.

This article of the named law establishes restrictions on the activities of an expert who is not entitled to:

Take instructions on the production of forensic examination directly from any bodies or persons, with the exception of the head of the state forensic - expert institution;

Exercise forensic - expert activities as a non-state expert;

To enter into personal contacts with the participants of the process, if it questiones his disinterest in the outcome of the case;

Independently collect materials for the production of forensic examination;

Report to someone about the results of forensic examination, with the exception of a body or person who appointed it;

Destroy the objects of research or significantly change their properties without permission from the body or persons approved by the forensic examination.

In accordance with Part 4. Art. 57 Code of Criminal Procedure The expert is also not entitled:

Without the knowledge of the investigator and the court to negotiate with participants in criminal proceedings on issues related to the production of forensic examination;

Give a false conclusion;

To disclose these preliminary investigation, which became known to him in connection with the participation in a criminal case as an expert, if he was warned in advance in advance in the manner prescribed by Art. 161 Code of Criminal Procedure.

By virtue of the importance of compliance with the legality, when taking into account the expertise's results, the presidency of the judge in accordance with Art. 269 \u200b\u200bCode of Criminal Procedure Russia is obliged to clarify the expert of his rights and responsibility provided for by Art. 57 Code of Code of Criminal Procedure, which he gives a subscription to acquainted with the trial of the court session.

Meanwhile, the legal literature marked the presence and other procedural duties derived from the main, many of which were reflected in the Code of Criminal Procedure and the Law on Forensic Expert Activity. However, the individual provisions of the doctrine can not be attributed to the procedural duties of the expert, since the law does not provide them in such quality. For example, the law does not refer to the procedural duties by an expert study in full compliance with the capabilities of the special knowledge applied to them to justify their conclusions, although this requirement follows from the nature of the forensic examination as the forms of use of special knowledge. Here we can talk about the implementation of the obligation to make a conclusion in the case to which the law (Art. 204 of the Code of Criminal Procedure) presents, including the requirement of the validity of the conclusions on the issues posed before the expert. The procedure for the implementation of the expert's obligation to give a conclusion should be attributed to the requirements for the study, the country's detailed description and conclusions on this study, as well as about the country of reasonable answers to the questions of the investigator and the court.

Compliance with the expert of constitutional rights in the production of expertise is one of the most important procedural duties, which is specifically stipulated in Art. 5 of the law on forensic - expert activities. According to this article, state judicial - expert activities are carried out under the condition of the accurate fulfillment of the requirements of the Constitution of the Russian Federation and other regulatory legal acts that constitute the legal basis of this activity. Violation of the law in the implementation of forensic - expertise is unacceptable and entails the responsibility established by Russian legislation.

The general obligation of the expert to comply with human rights in the production of expertise must be specified in guidance material that regulates the production of expertise. In particular, this issue should be given attention to the current instructions for judicial accounting expertise, which should replace the current, but already outdated instruction in 1987

In addition, in paragraph 4 of Part 3 of Art. 57 Code of Code of Criminal Procedure, regulating the rights of an expert, it is advisable to provide a rule that it takes all measures to maintain materials and objects transferred to him by the investigator (Court). At the end of the examination, the expert returns the authority to the expertise, all materials, items, documents and other objects, if the latter were not used during the study. Such provisions are contained in departmental acts regulating the conduct of individual types of expertise, but in nature this rule is procedural, therefore it should be implemented through the procedural relations of the expert with the investigator, the investigator or judgment.

As for the legal status of the head of the state expert institution, its basic rights and obligations are enshrined at the head of the second FZ "On state forensic expert activities in the Russian Federation". In art. 14 of this chapter reflected the main responsibilities of the head of the expert institution. The head is obliged:

upon receipt of the decision or determining the appointment of a judicial examination to entrust its production to a specific expert or commission of the experts of this institution, which have special knowledge in the amount required for answers to the questions issued;

clarify the expert or commission of experts their duties and rights;

on behalf of the authority or persons who appointed a judicial examination, warn the expert on criminal responsibility for the gift of a deliberately false conclusion, to take his appropriate subscription from him and send it together with the conclusion of an expert in the authority or the person who appointed a forensic examination;

ensure control over compliance with the terms of the production of judicial expertise, taking into account the dates established by the courts in the appointment of judicial expertise, the completeness and quality of the studies, without violating the principle of independence of the expert;

at the end of the research, send an expert opinion, objects of research and materials of the case into an organ or face that appointed a forensic examination;

provide the conditions necessary to preserve the confidentiality of research and their results;

do not disclose information that he has been known in connection with the organization and production of forensic examination, including information that may limit the constitutional rights of citizens, as well as information constituting the state, commercial or other secrecy protected by law.

The head is obliged to provide the conditions necessary for conducting research:

availability of equipment, instruments, materials and means of information support;

compliance with safety regulations and industrial sanitation;

the preservation of the presented objects of research and materials of the case.

The head is not entitled:

celebrate without a decree or definition of the appointment of forensic examination objects of research and materials necessary for the production of forensic examination;

independently without coordination with the authority or face approved by the forensic examination, to attract persons who are not working in this institution to be produced;

to give an expert instructions that predict the content of the conclusions on a specific forensic examination.

In art. 15 of this law contained the main rights that the head of the expert institution is given. The head has the right:

return without fulfillment, the decision or definition of the appointment of forensic examination, presented for its production objects of research and materials of the case, if there is no expert of a specific specialty, the necessary material and technical base or special conditions for conducting research, indicating the motives for which a refund is made;

apply to the body or face appointed forensic examination, on the inclusion of the commission of experts who do not work in this institution, if their special knowledge is necessary for the giving conclusion;

organize the production of forensic examination with the participation of other institutions specified in the decision or determining the appointment of forensic examination;

transmit part of the duties and rights related to the organization and production of forensic examination, its deputy, as well as the head of the structural unit of the institution, which he heads;

require from a body or persons who have appointed forensic examination, reimbursement of expenses related to:

1) compensation for storing the transport organization of research facilities by the transport organization, with the exception of fines for the late receipt by these institution;

2) transporting objects after their study, with the exception of postal expenses;

3) the storage of research objects in the state forensic expert institution after the end of the proceedings of the forensic examination is over the deadlines established by the regulatory legal acts of the relevant federal executive bodies;

4) the elimination of the effects of explosions, fires and other extreme situations that have been the result of income into this institution of increased hazard facilities, if the body or person approved by the forensic examination, did not inform the head of the specified objects known to them or they were inappropriately packed.

3 . Optimization of the form and content of expert opinions. Use of detention

judicial expert opinion procedural

Studies conducted, indicate that even current legislation makes it possible to significantly improve the form and content of expert opinion. For example, instead of the lengthy descriptions of the objects sent to the study, which have the purpose of their individualization to confirm that it was those objects that were sent to the investigator and the court, descriptions that dozens of tens of pages can be caught up with photo filstrations or indication of the numbers of objects in this way; Instead of the detailed description of the applied methods obtained interim results used by the methodology, reference to the corresponding literary or methodological source in which they are described in detail, or on their numbers in the methodology directory when such a directory is compiled.

D.Ya. Mirsky and E.M. Lifshitz, in detail the problem of optimizing the form and the content of expert opinions and the way of saving the forces and time of experts spent on their compilation, in addition to these mention mentioned:

Automation of the process of expert research with the issuance of an office of a finished conclusion in solving typical experts;

The use of a single terminological bank by type (childbirth) of judicial expertise, the basis for which the existing dictionaries of expert terms may be served;

The use of standard expert conclusions forms;

Reducing the research part of the conclusion due to an excessively detailed description of the features of the objects under study;

Use of microfilming in the manufacture of observed production.

This should add that Art. 191 Code, demanding that in the conclusion of the expert it was indicated which studies he produced, leaves for the discretion of the expert the degree of detail of this description; The law does not contain the requirements of transfer and substantiation of research methods applied by an expert, instructions on the need to mention interim results, etc.

Solving the question of optimizing the content of expert opinion, one more important circumstance should be taken into account. The practice convincingly testifies, and the survey of workers of investigators and the court confirms that in the overwhelming majority of cases of the investigator and the court of the entire expert opinion are interested only by the conclusions of the expert. The assessment of the expert's conclusion is usually reduced only to the verification of the completeness of these conclusions and their compliance with other proofs in the case. This was taken into account in the procedural legislation of the former GDR, where the process of expert research was recorded in the protocol, in the documents of the expert institution, and only final conclusions were sent to the authority, the answers to the issues staged before the expert were directed. The full text of the conclusion was only in cases where the need arose.

Analyzing such a practice should take into account not only the time achieved in this way, SIP and expert funds, but also the actual state of affairs when evaluating the expert opinion by the investigator and the court. According to our conviction, the investigator and the court are able to estimate only the completeness of the conclusion, checking the answers to all the questions. Neither the scientific validity of the conclusions, nor the correctness of the choice and application of research methods nor the correspondence of this method of modern achievements of the relevant area of \u200b\u200bscientific knowledge is not able to evaluate, since for such an assessment should have the same knowledge as the expert. Moreover, the existing form of expert opinion does not even allow to assess even the competence of the expert examination, since it contains only an indication of its education and experience of expert work. But neither the first nor the second does not yet testify that he professionally decided exactly this expert task; On the competence of an expert in matters of a specific expert study, it is not possible to judge the specified data sufficiently reasonable.

Of course, not every expert opinion is characterized by such a layer, which becomes inaccessible to evaluate the investigator and the court, but the fact that such conclusions have and that their number in connection with the expansion of expertise capabilities and the complication of expert methods is constantly increasing, no doubt.

For the first time with a similar situation, legal proceedings collided in the middle of the XIX century. In connection with the development of forensic medical and forensic psychiatric examination. According to the German scientist K. Mittermayer, the concept of an expert - a scientific judge, according to which the expert's conclusion was made for the truth and the evaluation was not subject to. In Russia, this concept supported the prominent proceduralist L.E. Vladimirov, who believed that neither the investigator nor the court would appreciate the expert opinion, because they do not have the necessary special knowledge, such as expert's knowledge.

The domestic procedural science has rejected this theory as the theory of formal evidence carrying the theory. However, the Argum-NTU in favor of the possibility of a full assessment of the expert's conclusion by the Facalist and Court, the theoretical model of such an assessment is very far from life, from real investigative practice. It seems that the Law, avoiding hypocritical formulations, clearly define the criteria with which the investigator and the Court should be guided by evaluating expert opinions, and the criteria are real and publicly available, and determine the procedure for use for these purposes (consultations) of specialists called precisely to evaluate conclusions. It is also useful to determine the possibility of abbreviated conclusions in the law, containing only answers to the questions posed before the expert.

List of used literature

1. Constitution of the Russian Federation;

2. Criminal Procedure Code of the Russian Federation;

3. FZ "On state forensic expert activities in the Russian Federation";

4. Belkin R.S. "Forensic remedies, techniques and recommendations", M.: Phone 1997, 480 p.

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