Luật giám định tư pháp tiếng Anh: Law on Judicial Expertise.
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THE NATIONAL ASSEMBLY
-------- |
SOCIALIST REPUBLIC OF VIET
NAM
Independence - Freedom – Happiness |
No. 13/2012/QH13
|
Hanoi, July 20,
2012
|
LAW
ON JUDICIAL EXPERTISE
Pursuant
to the Constitution of the Socialist Republic of Vietnam1992, which was amended
and. supplemented under the Resolution No. 51/2001/NQ-QH10?
The
National Assembly promulgates the Law on Judicial Expertise.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of adjustment
This Law
provides for judicial experts; judicial expertise institutions; ad hoc judicial
expertise performer, ad hoc judicial expertise institutions; judicial expertise
activities; judicial expertise charge, regulations and policies applicable to
judicial expertise activities, and responsibilities of state agencies to
judicial expertise institutions and activities.
Article 2. Interpretation of terms
In this Law,
the terms below are construed as follows:
1. Judicial
expertise means that judicial expertise performers use scientific, technical
and professional knowledge, means and methods to make expert conclusions
regarding matters related to the criminal investigation, prosecution and trial
and enforcement of criminal judgments or settlement of civil cases and matters
and administrative cases when solicited by procedure conducting agencies or
persons or when requested by expertise requesters specified in this Law.
2. Expertise
solicitors include procedure conducting agencies and persons.
3. Expertise
requesters are those who have the right to request expertise by themselves
after their requests for procedure conducting agencies or persons to solicit
expertise are rejected. They include parties involved in civil cases or matters
or administrative cases, civil plaintiffs, civil respondents, persons with
related rights in criminal cases or their lawful representatives, unless the
solicited expertise is related to determination of the criminal liability of
the accused or defendants.
4. Judicial
expertise individuals and institutions include judicial experts, ad hoc judicial
expertise performers, public judicial expertise institutions, non-public
judicial expertise institutions and ad hoc judicial expertise institutions.
5. Judicial
expertise performers include judicial experts and ad hoc judicial expertise
performers.
6. Judicial
experts are those who satisfy the criteria specified in Clause 1, Article 7 of
this Law and are appointed by competent state agencies to perform judicial
expertise.
7. Ad hoc
judicial expertise performers are those who satisfy the criteria specified in
Clause 1 or 2, Article 18, and Article 20 of this Law and are invited or
requested to perform expertise.
8. Ad hoc
judicial expertise institutions are agencies or organizations that satisfy the
criteria specified in Clauses 19 and 20 of this Law and are solicited or
requested to perform expertise.
Article 3. Principles of judicial expertise
1. Compliance
with law and professional regulations.
2.
Truthfulness, accuracy, objectiveness, impartiality and timeliness.
3. Making of
professional conclusions only on the issues within the requested scope.
4.
Responsibility before law for expertising conclusions.
Article 4. Responsibilities of individuals and organizations
for judicial expertise activities
1.
Individuals and organizations that are solicited or requested to perform
judicial expertise shall undertake to do so in accordance with this Law and
other relevant laws.
2. Other
individuals and organizations shall create conditions for judicial expertise
performers to perform judicial expertise in accordance with this Law and other
relevant laws.
Article 5. State policies on judicial expertise activities
1. The State
invests in developing the system of public judicial expertise institutions in
areas with great and regular demand for judicial expertise in order to meet
requirements of procedure activities; and adopts preferential policies to
facilitate the development of non-public judicial expertise institutions.
2. The State
adopts preferential policies on professional training and retraining for
judicial expertise performers.
Article 6. Prohibited acts
1. Refusing
to make judicial expertising conclusions without any plausible reason.
2.
Intentionally making untruthful judicial expertising conclusions.
3.
Intentionally prolonging the performance of judicial expertise.
4. Taking
advantage of judicial expertise to seek personal benefits.
5. Disclosing
secret information acquired during the performance of judicial expertise.
6. Enticing
or forcing judicial expertise performers to make untruthful judicial expertising
conclusions.
7.
Intervening in or obstructing expertise activities of judicial expertise
performers.
Chapter II
JUDICIAL
EXPERTS
Article 7. Criteria
for appointment of judicial experts
1. A
Vietnamese citizen who permanently resides in Vietnam and fully satisfies the
following criteria may be considered and appointed as a judicial expert:
a/ Being
physically fit and having good moral qualities;
b/ Possessing
a university or higher degree and having been engaged in practical professional
activities in his/her trained area for at least 5 years;
In case a
person, who is proposed to be appointed as an expert in forensic medicine,
psychiatric forensic medicine or criminological techniques, has worked as an
expertise assistant in a forensic medicine, psychiatric forensic medicine or
criminological technique institution, his/her period of practical professional
activities must be at least 3 years in full;
c/ Possessing
a certificate of judicial expertise training or retraining, for a person
proposed to be appointed as an expert in forensic medicine, psychiatric
forensic medicine or criminological techniques.
2. The
following persons may not be appointed as judicial experts:
a/ Those who
have lost their civil act capacity or have a limited civil act capacity;
b/ Those who
are currently examined for penal liability; those who have been convicted for
unintentionally committing a crime or intentionally committing a less serious
crime and their criminal record has not been remitted; those who have been
convicted for intentionally committing a serious crime, very serious crime or
particularly serious crime;
c/ Those who
are subject to the administrative sanction of commune-based education or
confinement to a compulsory detoxification establishment or compulsory educational
establishment.
3. Ministers
and heads of ministerial-level agencies shall detail Clause 1 of this Article
regarding judicial experts in the areas under their management after reaching
agreement with the Minister of Justice.
Article 8. Dossier of proposal for appointment of a judicial
expert
1. A written
request for appointment of a judicial expert.
2. A copy of
a university or higher degree in a major relevant to the professional area in
which the candidate is expected to work.
3. The resume
and judicial record of the candidate.
4. A written
certification of the period of performing practical professional activities,
granted by the agency or organization in which the candidate works.
5. A
certificate of judicial expertise training or retraining, for a person proposed
to be appointed as a judicial expert in forensic medicine, psychiatric forensic
medicine or criminological techniques.
6. Other
papers evidencing that the candidate satisfies the criteria prescribed by the
minister or head of ministerial-level agency competent to manage the field of
expertise.
Article 9. Competence, order and procedures for appointment of
judicial experts
1. The
Minister of Health may appoint forensic medicine and psychiatric forensic
medicine experts to work in central agencies.
The Minister
of Public Security may appoint criminological technique experts to work in
central agencies.
Ministers and
heads of ministerial-level agencies may appoint judicial experts in other areas
to work in central agencies under their management.
Chairpersons
of People's Committees of provinces or centrally run cities (below collectively
referred to as provincial-level People's Committees) may appoint local judicial
experts.
2. The
Ministry of National Defense and the Ministry of Public Security shall select
persons satisfying the criteria specified in Clause 1, Article 7 of this Law
and propose the Minister of Health to appoint them as their own forensic
medicine experts.
The Ministry
of National Defense shall select persons satisfying the criteria specified in
Clause 1, Article 7 of this Law and propose the Minister of Public Security to
appoint them as its own criminological technique experts.
Heads of
units of ministries or ministerial-level agencies assigned to manage judicial
expertise activities shall select persons satisfying the criteria specified in
Clause 1, Article 7 of this Law and propose ministers or heads of
ministerial-level agencies to appoint them as judicial experts in the areas of
expertise under their respective management.
Heads of
specialized agencies of provincial-level People's Committees in charge of
judicial expertise shall assume the prime responsibility for, and coordinate
with directors of provincial-level Service of Justices in, selecting persons
satisfying the criteria specified in Clause 1, Article 7 of this Law, receiving
dossiers of persons proposed to be appointed as judicial experts as specified
in Article 8 of this Law, and proposing chairpersons of provincial-level
People's Committees to appoint local judicial experts.
Within 20
days after receiving a valid dossier, a minister, head of a ministerial-level
agency or chairperson of a provincial-level People's Committee shall decide to
appoint a judicial expert. In case of refusal, he/she shall notify such in
writing to the applicant, clearly stating the reason.
3.
Ministries, ministerial-level agencies and provincial-level agencies shall make
lists of judicial experts and post them on their websites, and concurrently
send them to the Ministry of Justice for making a general list of judicial
experts.
Article 10. Dismissal of judicial experts
1. Cases in
which a judicial expert shall be dismissed from his/her duty:
a/ He/she no
longer satisfies the criteria specified in Clause 1, Article 7 of this Law;
b/ He/she
falls into a case specified in Clause 2, Article 7 of this Law;
c/ He/she is
disciplined with caution or a higher penalty or is administratively sanctioned
for an intentional violation of the law on judicial expertise;
d/ He/she
commits an act specified in Article 6 of this Law;
e/ He/she so
requests, in case he/she is a civil servant, public employee, army officer,
people's public security officer, professional soldier or defense worker having
a decision on job leaving for retirement or resignation.
2. A dossier
of request for dismissal a judicial expert from his/her duty comprises:
a/ A written
request for dismissal from duty of a judicial expert, made by the agency or
organization that has proposed the appointment of such person;
b/ Documents
or papers evidencing that the judicial expert falls into a case specified in
Clause 1 of this Article.
3. The
Minister of Public Security and the Minister of National Defense shall consider
and request the Minister of Health to dismiss forensic medicine experts from
duty under their management.
The Minister
of National Defense shall consider and request the Minister of Public Security
to dismiss criminological technique experts from duty under his/her management.
Ministers and
heads of ministerial-level agencies may dismiss from duty judicial experts
working in central agencies in the aeas under their respective management at
the request of heads of units of their ministries or ministerial-level agencies
in charge of judicial expertise activities.
Chairpersons
of provincial-level People's Committees may dismiss from duty local judicial
experts at the request of heads of specialized agencies of their People's
Committees after the latter reach agreement with directors of provincial-level
Service of Justices.
4. Within 10
days after receiving a valid dossier, a minister, head of a ministerial-level
agency or chairperson of a provincial-level People's Committee shall consider
and decide to dismiss from duty a judicial expert and modify the list of
judicial experts on its website, and concurrently send such dossier to the
Ministry of Justice for modification of the general list of judicial experts.
Article 11. Rights and obligations of judicial experts
1. Performng
expertise according to the solicitation or request of expertise solicitors or
requesters or the assignment by agencies or institutions solicited or requested
to perform expertise.
2. Refusing
to perform expertise in case the contents to be expertised fall beyond their
professional capacity; objects to be expertised and relevant documents are
insufficiently supplied or invalid for making expertising conclusions; the time
is not enough for performing expertise or there is another plausible reason. In
case of refusal to perform expertise, to notify the refusal in writing to the
expertise solicitor or requester within 5 working days after receiving a
decision to solicit or request expertise.
3. Attending
expertise retraining courses for improving their professional skills and legal
knowledge.
4.
Establishing judicial expertise offices when fully satisfying the conditions
specified in Article 15 of this Law.
5.
Establishing or joining judicial experts' associations in accordance with the
law on associations.
6. Enjoying
regimes and policies provided in this Law and other relevant laws.
7. Having
other rights and obligations specified in Article 23 and Clause 1, Article 34
of this Law.
Chapter III
JUDICIAL
EXPERTISE INSTITUTIONS
Section 1: PUBLIC
JUDICIAL EXPERTISE INSTITUTIONS
Article 12. Public judicial expertise institutions
1. Public
judicial expertise institutions may be established by competent state agencies
in the areas of forensic medicine, psychiatric forensic medicine and
criminological techniques.
In case of
necessity, ministers, heads of ministerial-level agencies or chairpersons of
provincial-level People's Committees may consider and decide to establish or
propose competent agencies to establish public judicial expertise institutions
in other areas after reaching agreement with the Minister of Justice.
2. Public
judicial expertise institutions in forensic medicine include:
a/ The
National Institute of Forensic Medicine under the Ministry of Health;
b/
Provincial-level forensic medicine centers;
c/ The Army
Institute of Forensic Medicine under the Ministry of National Defense;
d/ The
Forensic Medicine Center of the Criminological Institute, the Ministry of
Public Security.
3. Public
judicial expertise institutions in psychiatric forensic medicine include:
a/ The
Central Institute of Psychiatric forensic medicine under the Ministry of
Health;
b/ Regional
psychiatric forensic medicine centers under the Ministry of Health.
Based on
psychiatrically forensic expertise requirements of legal proceedings and
practical conditions of regions and areas nationwide, the Minister of Health
shall consider and decide to establish regional psychiatric forensic medicine
centers after reaching agreement with the Minister of Justice.
4. Public
judicial expertise institutions in criminological techniques include:
a/ The
Criminological Science Institute under the Ministry of Public Security;
b/
Criminological technique Division of provincial-level Police Departments;
c/ The
Criminological Technique Expertise Division of the Ministry of National
Defense.
5. Based on
local needs and practical conditions, the criminological technique sections of
provincial-level Police Departments may have forensic medicine experts to
perform forensic examination of corpses.
6. Public
judicial expertise institutions have their own seals and accounts in accordance
with law.
7. The
Government shall stipulate in detail the functions, tasks, organizational
structure and working regulation of public judicial expertise institutions
specified in this Article.
Article 13. Ensuring physical foundations for public judicial
expertise institutions
1. Public
judicial expertise institutions have their physical foundations, operation
funds, equipment, facilities, means and other necessary conditions provided by
the State to perform judicial expertise.
2. Public
judicial expertise institutions have their operation funds allocated from the
state budget and other sources in accordance with law.
3. The
Ministry of Health shall stipulate physical foundations and expertise
equipment, facilities and means for public judicial expertise institutions in
the areas of forensic medicine and psychiatric forensic medicine.
The Ministry
of Public Security shall stipulate physical foundations and expertise
equipment, facilities and means for public judicial expertise institutions in
the area of criminological techniques.
Section 2:
NON-PUBLIC JUDICIAL EXPERTISE INSTITUTIONS
Article 14. Judicial expertise offices
1. Judicial
expertise offices are non-public judicial expertise institutions established in
the areas of finance, banking, construction, antiques, relics and copyright.
2. A judicial
expertise office established by one judicial expert shall be organized and
operate as a private enterprise. A judicial expertise office established by two
or more judicial experts shall be organized and operate as a partnership.
The legal
representatives of judicial expertise offices are their heads, who must be
judicial experts.
Article 15. Conditions for establishment of judicial
expertise offices
1. A judicial
expert may establish a judicial expertise office when fully satisfying the
following conditions:
a/ Having
worked as a judicial expert for at least 5 full years in the field in which
he/she wishes to establish a judicial expertise office;
b/ Having an
establishment scheme specified at Point d, Clause 2, Article 16 of this Law.
2. Cadres,
civil servants, public employees, army officers, people's public security
officers, professional soldiers and defense workers are prohibited from
establishing judicial expertise offices.
Article 16. Licensing of establishment of judicial expertise
offices
1.
Chairpersons of provincial-level People's Committees of localities in which
judicial expertise offices are expected to be located shall consider and decide
to license the establishment of such judicial expertise offices at the request
of directors of provincial-level Service of Justices.
2. A judicial
expert who applies for a license to establish a judicial expertise office shall
send a dossier of application to the provincial-level Service of Justice. Such
a dossier comprises:
a/ An
application for a license;
b/ A copy of
the decision on appointment of the judicial expert;
c/ The draft
regulation on organization and operation of the judicial expertise office;
d/ The
judicial expertise office establishment scheme, which must clearly state the
establishment purpose(s); projected name, personnel and location of the office;
conditions of physical foundations and expertise equipment, facilities and
means as specified by the ministry or ministerial-level agency in charge of the
relevant expertise field and implementation plan.
3. Within 30
days after receiving a complete and valid dossier of application for a license
to establish a judicial expertise office, the director of the provincial-level
Service of Justice shall examine such dossier and reach agreement with the head
of the specialized agency of the provincial-level People's Committee in charge
of judicial expertise, then submit it to the chairperson of the
provincial-level People's Committee for consideration and decision.
Within 15
days after receiving a dossier from the provincial-level Service of Justice,
the chairperson of the provincial-level People's Committee shall consider and
decide to license the establishment of the judicial expertise office. In case
of refusal to license, he/she shall notify such in writing, clearly stating the
reason. The refused applicant may file a complaint or institute a lawsuit in
accordance with law.
Article 17. Operation registration of judicial expertise
offices
1. Within one
year after the chairperson of the provincial-level People's Committee decides
to license its establishment, a judicial expertise office shall register its
operation with the provincial-level Service of Justice.
The decision
licensing the establishment of a judicial expertise office shall be invalidated
if such judicial expertise office fails to register its operation within one
year after the chairperson of the provincial-level People's Committee issues
such decision.
2. A judicial
expertise office shall send to the provincial-level Service of Justice a
dossier for operation registration which comprises:
a/ An
application for operation registration;
b/ Its
organization and operation regulation;
c/ Papers
evidencing its satisfaction of the operation conditions according to the
establishment scheme mentioned at Point d, Clause 2, Article 16 of this Law;
d/ A copy of
the establishment licensing decision.
3. Within 30
days after receiving a complete and valid dossier, the provincial-level Service
of Justice shall assume the prime responsibility for, and coordinate with the
specialized agency of the provincial-level People's Committee in charge of
judicial expertise in, inspecting the satisfaction of the conditions stated in
the establishment scheme mentioned at Point d, Clause 2, Article 16 of this
Law, and granting an operation registration certificate. In case of refusal, it
shall notify such in writing, clearly stating the reason, and concurrently
report such to the chairperson of the provincial-level People's Committee for consideration
and decision to revoke the establishment licensing decision. The refused
applicant may file a complaint or initiate a lawsuit in accordance with law.
4. A judicial
expertise office may commence its operation after receiving an operation
registration certificate.
Chapter IV
AD HOC JUDICIAL EXPERTISE PERFORMERS, AD HOC JUDICIAL
EXPERTISE INSTITUTIONS
Article 18. Ad hoc judicial expertise performers
1. A
Vietnamese citizen who permanently resides in Vietnam and fully satisfies the
following conditions may be selected as an ad hoc judicial expertise performer:
a/ Being
physically fit and having good moral qualities;
b/ Possessing
a university or higher degree and having been engaged in practical professional
activities in his/her trained field for at least 5 years.
2. A person
who possesses no university degree but has deep knowledge about and abundant
experience in the field or expertise may be selected as an ad hoc judicial
expertise performer.
3. Ad hoc
judicial expertise performers shall perform expertise upon receiving an
expertise solicitation or request in accordance with this Law. They have the
rights and obligations provided in Clauses 1, 2, 3, 6 and 7, Article 1 of this
Law.
Article 19. Ad hoc judicial expertise institutions
1. An ad hoc
judicial expertise institution must satisfy the following conditions:
a/ Having the
legal person status;
b/ Conducting
professional activities suitable to the contents to be expertised as solicited
or requested;
c/ Having
sufficient professional personnel and physical foundations for judicial
expertise.
2. Ad hoc
judicial expertise institutions shall perform expertise upon receiving an
expertise solicitation or request in accordance with this Law. Their heads
shall receive and assign judicial expertise performers.
3.
Ministries, ministerial-level agencies, government-attached agencies and
specialized agencies of provincial-level People's Committees shall only perform
judicial expertise upon receiving solicitations of expertise solicitors.
Article 20. Making and announcement of lists of ad hoc
judicial expertise performers and ad hoc judicial expertise institutions
1. The
Ministry of Construction, the Ministry of Finance, the Ministry of Culture,
Sports and Tourism, the Ministry of Information and Communications, the
Ministry of Planning and Investment, the Ministry of Natural Resources and
Environment, the Ministry of Transport, the Ministry of Science and Technology,
the Ministry of Agriculture and Rural Development, the State Bank of Vietnam,
other ministries and ministerial-level agencies and provincial-level People's
Committees shall annually select, make and announce lists of ad hoc judicial
expertise performers and ad hoc judicial expertise institutions in the areas
under their respective management in order to meet expertise requirements of
procedural activities.
These lists
enclosed with information on expertise specialties, experience and capacity of
ad hoc judicial expertise performers and ad hoc judicial expertise institutions
shall be posted on the websites of ministries, ministerial-level agencies and
provincial-level People's Committees, and concurrently sent to the Ministry of
Justice for making a general list.
2. In special
cases, expertise solicitors may solicit professionally qualified persons or institutions
outside the announced lists to perform expertise, clearly stating the reason
for solicitation.
At the
request of procedure conducting agencies or persons, ministries,
ministerial-level agencies and specialized agencies of provincial-level People's
Committees managing the areas subject to expertise shall recommend individuals
or institutions fully qualified for performing expertise outside the announced
lists.
Chapter V
JUDICIAL
EXPERTISE ACTIVITIES
Article 21. Rights
and obligations of judicial expertise solicitors
1. Judicial
expertise solicitors have the following rights:
a/ To invite
individuals or institutions defined in Clause 4, Article 2 of this Law to
perform expertise;
b/ To request
individuals or institutions defined at Point a, Clause 1 of this Article to
notify expertising conclusions strictly according to requested contents and
time limit;
c/ To request
individuals or institutions that have performed judicial expertise to explain
their expertising conclusions.
2. Judicial
expertise solicitors have the following obligations:
a/ To select
suitable institutional or individual expertise performers according to the
characteristics and requirements of cases and issues to be expertised;
b/ To issue
written decisions to solicit expertise;
c/ To supply
information and documents relevant to expertised objects at the request of
individual or institutional judicial expertise performers;
d/ To advance
a judicial expertise charge upon soliciting expertise; to pay on time and in
full the charge to individuals or institutions performing expertise upon
receiving expertising conclusions;
e/ To assure
safety for judicial expertise performers in the course of expertise performance
or when participating in legal proceedings in the capacity as judicial expertise
performers.
Article 22. Rights and obligations of judicial expertise
requesters
1. Expertise
requesters may request in writing procedure conducting agencies or persons to
solicit expertise. In case procedure conducting agencies or persons refuse such
requests, they shall notify such in writing to expertise requesters within 7
days. Upon the end of that time limit or from the day of receiving a notice of
refusal to solicit expertise, expertise requesters may request expertise by
themselves.
2. Expertise
requesters have the following rights:
a/ To request
individual or institutional judicial expertise performers to notify expertising
conclusions within the agreed time limit and according to the requested
contents;
b/ To request
individual or institutional judicial expertise performers to explain their
expertising conclusions;
c/ To request
courts to summon judicial expertise performers that have performed the
expertise to participate in court hearings to explain or present expertising
conclusions;
d/ To request
procedure conducting agencies or persons to solicit re-expertise; to request
additional expertise in accordance with Clause 1, Article 29 of this Law.
3. Judicial
expertise requesters have the following obligations:
a/ To supply
information and documents relevant to expertised objects at the request of
judicial expertise performers and take responsibility for the accuracy of
supplied information and documents;
b/ To advance
a judicial expertise charge when requesting expertise; to pay on time and in
full the charge to individuals or institutions performing expertise upon
receiving expertising conclusions.
4. Expertise
requesters may only request expertise by themselves before the courts issue
decisions on first-instance trial of their cases.
Article 23. Rights and obligations of judicial expertise
performers when performing judicial expertise
1. Judicial
expertise performers have the following rights:
a/ To select
necessary and appropriate methods of performing expertise according to contents
requested for expertise;
b/ To use
additional experimental or testing results or professional conclusions made by
other institutions or individuals for their expertise;
c/ To be
independent in making expertising conclusions.
2. Judicial
expertise performers have the following obligations:
a/ To comply
with the principles of judicial expertise;
b/ To perform
expertise strictly according to contents requested for expertise;
c/ To make
and notify expertising conclusions within the requested time limit; in case of
additional time needed for performance of expertise, promptly notify such to
expertise solicitors or requesters;
d/ To prepare
expertise dossiers;
e/ To
preserve expertised samples and documents relevant to expertised cases or
matters;
f/ Not to
notify expertising results to other parties, unless so agreed in writing by
expertise solicitors or requesters;
g/ To bear
personal responsibility for their expertising conclusions. In case of
intentionally making untruthful expertising conclusions, thus causing damage to
individuals or institutions, to pay compensations for damage or refund expenses
in accordance with law.
3. In
addition to the rights and obligations specified in Clauses 1 and 2 of this
Article, judicial expertise performers have other rights and obligations
provided by the law on procedure.
Article 24. Rights and obligations of institutions solicited
or requested to perform judicial expertise
1.
Institutions solicited or requested to perform judicial expertise have the
following rights:
a/ To request
expertise solicitors or requesters to supply information and documents
necessary for expertise;
b/ To refuse
to perform expertise if the conditions necessary for the expertise are
insufficient;
c/ To receive
a judicial expertise charge in advance upon receiving judicial expertise
solicitations or requests; to have judicial expertise expenses promptly and
fully paid when notifying expertise results.
2.
Institutions solicited or requested to perform judicial expertise have the
following obligations:
a/ To receive
and assign their persons whose professional qualifications are relevant to few
contents subject to expertise to perform expertise, and take responsibility for
these persons' professional capacity; to assign persons to coordinate the
expertise in case the expertise must be performed by many persons;
b/ To ensure
equipment, facilities, means and other necessary conditions for expertise;
c/ To pay
compensations for damage in case their assigned expertise performers
intentionally make wrong expertising conclusions, thus causing damage;
d/ To notify
in writing expertise solicitors or requesters within 5 working days after
receiving expertise solicitation or request decisions, and, in case of refusing
expertise solicitations or requests, clearly state the reason.
Article 25. Solicitation of judicial expertise
1. Expertise
solicitors shall issue written decisions to solicit judicial expertise and send
such decisions enclosed with the expertised objects and related documents and
objects (if any) to individual or institution performing expertise.
2. A decision
to solicit expertise must contain the following details:
a/ Name of
the expertise-soliciting agency; full name of the person competent to solicit
expertise;
b/ Name of
the institution or full name of the person solicited for expertise;
c/ Name and
characteristics of the object(s) to be expertised;
d/ Title(s)
of enclosed relevant document(s) or sample(s) for comparison (if any);
e/ Contents
requested for expertise;
f/ Date of
solicitation and time limit for notification of expertising conclusions.
3. In case of
additional expertise or re-expertise, a decision to solicit expertise must
clearly state whether it is additional expertise or re-expertise.
Article 26. Requests for judicial expertise in civil cases or
matters, administrative cases or criminal cases
1. Expertise
requesters shall send to individuals or institutions performing expertise
written requests for expertise enclosed with objects to be expertised, relevant
documents and objects (if any) and copies of papers evidencing that they are
involved parties in civil cases or matters or administrative cases, civil
plaintiffs or respondents, persons with related rights and obligations in
criminal cases or their lawful representatives.
A written
request for judicial expertise must contain the following details:
a/ Name of
the institution or full name of the requester;
b/ Contents
requested for expertise;
c/ Name and
characteristics of the expertised object(s);
d/ Title(s)
of related document(s) or enclosed sample(s) for comparison (if any);
e/ Date of
request for expertise and time limit for notification of expertising
conclusions;
f/ Signature
and full name of the expertise requester.
Article 27. Transfer and receipt of dossiers and objects of
solicited or requested expertise
1. Dossiers
and objects of solicited or requested expertise may be directly handed over and
received directly or sent by post to individuals or institutions performing
expertise.
2. The direct
handover and receipt of dossiers and objects of solicited or requested
expertise shall be recorded in writing. A record of handover and receipt must
contain the following details:
a/ Time and
place of handover and receipt of the expertise dossier;
b/ Full names
of the representatives of the parties handing over and receiving the expertised
object;
c/ The
expertise solicitation decision or written request for expertise; the object to
be expertised; and related documents and objects;
d/ Method(s)
of preservation of the expertised object and related documents and objects upon
handover and receipt;
e/ Conditions
of the expertised object and related documents and objects upon handover and
receipt;
f/ Signatures
of the representatives of the parties handing over and receiving the expertised
object.
3. The
sending of dossiers and objects of solicited or requested expertise by post
shall be done through the registered mail service. Individuals or institutions
that receive dossiers sent through the registered mail service shall preserve
these dossiers and make a written record upon breaking their package seals in
accordance with Clause 2 of this Article.
4. For the
handover and receipt of persons subject to forensic medicine or psychiatric
forensic medicine expertise, the expertise solicitors or requesters shall
assume the prime responsibility for, and coordinate with individuals or
institutions solicited to perform expertise in, managing these persons in the
course of expertise.
5. Upon
completing expertise, individuals or institutions performing expertise shall
return expertised objects to expertise solicitors or requesters, unless
otherwise provided by law.
Expertise
solicitors or requesters shall receive back expertised objects in accordance
with law.
The return
and receipt of expertised objects after the completion of expertise shall
comply with Clauses 2 and 3 of this Article.
Article 28. Individual expertise, collective expertise
1. Individual
expertise is an expertise performed by a person. Collective expertise is an
expertise performed by two or more persons.
2. In case of
individual expertise, expertise performers shall perform the expertise, sign
written expertising conclusions and bear personal responsibility for such
expertising conclusions.
3. In case of
collective expertise of a professional field, expertise performers shall
jointly perform the expertise, sign common written expertising conclusions and
bear joint responsibility for such expertising conclusions; in case of
divergent opinions, each expertise performer shall write his/her own opinions
in the common written expertising conclusions and bear responsibility for such
opinions.
In case of
collective expertise of different professional areas, each expertise performer
shall perform the expertise falling under his/ her professional area and bear
responsibility for his/her expertising conclusions.
Article 29. Additional expertise and re-expertise
1. Additional
expertise shall be conducted in case expertising conclusions are unclear or
inadequate or when new issues arise related to details of the case or matter
which has been expertised. The solicitation of or request for additional
expertise shall be made as for first-time expertise.
2.
Re-expertise shall be conducted in case there is a ground to believe that the
first-time expertise is inaccurate or in a case specified in Clause 2, Article
30 of this Law.
3. Expertise
solicitors may decide at their own will or at the request of expertise
requesters to solicit re-expertise. In case expertise solicitors do not accept
re-expertise requests, they shall notify such in writing to expertise
requesters, clearly stating the reason.
Article 30. Expertise councils
1. In case
there is a difference between first-time expertising conclusions and
re-expertising conclusions on the same content, the second-time re-expertise shall
be decided by the expertise solicitor. The second-time re-expertise shall be
conducted by an expertise council.
The Ministers
or heads of ministerial-level agencies managing the areas of expertise shall
decide to set up councils to conduct second-time expertise. An expertise
council is composed of at least 3 members with high professional skills and
reputation in the area of expertise. It shall operate under the mechanism of
collective expertise provided in Clause 3, Article 28 of this Law.
2. In special
cases, the Chairman of the Supreme People's Procuracy or the President of the
Supreme People's Court shall decide on re-expertise after obtaining conclusions
of the expertise council.
Article 31. Written records of the judicial expertise process
1. Judicial
expertise performers shall promptly, fully and truthfully record in writing the
whole expertise process and results.
2. Written
records of the expertise process must be filed in expertise dossiers.
Article 32. Judicial expertising conclusions
1. Judicial
expertising conclusions are written comments or assessments made by judicial
expertise performers on expertised objects according to solicited or requested
expertise contents. A judicial expertise conclusion must contain the following
details:
a/ Full name
of the individual or institution performing expertise;
b/ Name of
the procedure conducting agency or full name of the procedure conducting person
that solicits expertise; serial number of the expertise-soliciting document or
full name of the expertise requester;
c/
Information identifying the expertised object;
d/ Time of
receipt of the written expertise solicitation or request;
e/ Contents
requested for expertise;
f/ Method of
expertise;
g/
Conclusion(s) on the expertised object;
h/ Time and
place of expertise performance and completion.
2. For
expertise performed by an individual, the signature of the expertise performer
must be authenticated in accordance with the law on authentication.
For expertise
performed by an institution, the head of the institution shall sign and append
a stamp on written expertising conclusions and the institution performing the
expertise shall bear responsibility for expertising conclusions.
For expertise
performed by an expertise council mentioned in Clause 1, Article 30 of this Law
performs expertise, the person having decided on the setting up of the council
shall sign and append a stamp on written expertising conclusions and bear
responsibility for the legal status of the expertise council.
3. In case an
expertise is performed before the institution of a criminal case strictly
according to the order and procedures provided in this Law, procedure
conducting agencies may use conclusions of such expertise as judicial
expertising conclusions.
Article 33.
Judicial expertise dossiers
1. A judicial expertise dossier made by a
judicial expertise performer comprises:
a/ The
expertise solicitation decision or written request for expertise, and enclosed
documents (if any);
b/ The
written record of handover and receipt of the dossier and object of solicited
or requested expertise;
c/ The
written record of the expertise process;
d/ Expertise
photos (if any);
e/ Previous
expertising conclusions or results of the expertise test or experimentation
performed by another person (if any);
f/ Other
documents related to the expertise (if any);
g/ Judicial
expertising conclusions.
2. Judicial
expertise dossiers must be made according to a uniform form. The Ministry of
Public Security, the Ministry of Health and other ministries and
ministerial-level agencies shall, within the ambit of their tasks and powers,
coordinate with the Supreme People's Court and the Supreme People's Procuracy
in setting a uniform form of judicial expertise dossier.
3. Individual
and institutional judicial expertise performers shall preserve and keep
expertise dossiers for cases of expertise they have performed in accordance
with the law on archive.
4. Judicial
expertise dossiers must be presented upon the request to procedure conducting
agencies or persons that are competent to settle criminal or administrative
cases, civil cases or matters.
Article 34. Cases ineligible for performing judicial
expertise
1. A person
who falls into any of the following cases may not perform judicial expertise:
a/ Any of the
cases prescribed by the procedure law in which he/she must refuse to
participate in the procedure or must be changed;
b/ He/she is
invited to perform re-expertise of the same content in a case or matter for
which he/she has performed expertise, unless otherwise provided by law.
2. An
institution which falls into any of the following cases may not perform
judicial expertise:
a/ It has
rights or obligations related to the case or matter in accordance with the
procedure law;
b/ There is a
clear ground to believe that it may not be objective and impartial in
performing expertise.
Article 35. Legal assistance in judicial expertise
1. Requests
for judicial expertise to be performed by foreign individuals or institutions
may only be made if objects which need to be expertised are located overseas or
if the professional capacity or conditions of expertise equipment, facilities
and means of domestic individual or institutional judicial expertise performers
fail to meet expertise requirements.
2. Individual
or institutional judicial expert performers may accept cases of judicial
expertise and perform judicial expertise at the request of foreign competent
procedure conducting agencies.
3. The order,
procedures and charges for providing legal assistance in judicial expertise
between Vietnam and foreign countries comply with the law on legal assistance.
Chapter VI
JUDICIAL EXPERTISE CHARGE, ENTITLEMENTS AND POLICIES
APPLICABLE TO JUDICIAL EXPERTISE ACTIVITIES
Article 36. Judicial expertise charge
Expertise
solicitors or expertise requesters shall pay a judicial expertise charge to
individual or institutional judicial expertise performers in accordance with
the regulation on judicial expertise charge.
Article 37. Entitlements for judicial expertise performers
and participants
1. Judicial
experts, ad hoc judicial expertise performers, assistants of judicial expertise
performers who are paid salary by the state budget, persons assigned by
competent state agencies to be present or perform duties during the period of
expertise in case of post-mortem examination, autopsy or exhumation of dead
bodies are entitled to a judicial expertise allowance based on cases or matters
subject to expertise.
2. In
addition to the case-by-case judicial expertise allowance specified in Clause 1
of this Article, full-time judicial experts of public judicial expertise
institutions are also entitled to an occupational preferential allowance and
other allowances.
3. The
Government shall stipulate in detail this Article.
Article 38. Policies for judicial expertise activities
1. Non-public
judicial expertise institutions may enjoy preferential policies provided by the
Government.
2. Individual
or institutional judicial expertise performers and ad hoc judicial expertise
performers that make active contributions to judicial expertise activities
shall be honored, commended and rewarded in accordance with the law on
emulation and commendation.
3.
Ministries, ministerial-level agencies and provincial-level People's Councils
shall base themselves on their respective capabilities, practical conditions
and competence to provide other entitlements and policies in order to attract
capable experts and institutions to participate in judicial expertise
activities.
Chapter VII
RESPONSIBILITIES OF STATE AGENCIES FOR JUDICIAL
EXPERTISE ORGANIZATION AND ACTIVITIES
Article 39. Agencies in charge of state management of
judicial expertise
1. The
Government shall perform the uniform state management of judicial expertise.
2. The
Ministry of Justice shall assist the Government in performing the uniform state
management of judicial expertise.
3. The
Ministry of Health; the Ministry of Public Security; the Ministry of National
Defense; the Ministry of Finance; the Ministry of Construction; the Ministry of
Culture, Sports and Tourism; the Ministry of Natural Resources and Environment;
the Ministry of Transport; the Ministry of Science and Technology; the Ministry
of Agriculture and Rural Development; the State Bank of Vietnam, and other
ministries and ministerial-level agencies shall perform the state management
and take responsibility to the Government for judicial expertise organization
and activities in the areas under their respective management; and coordinate
with the Ministry of Justice in unifying the state management of judicial
expertise.
4. Provincial-level
People's Committees shall, within the ambit of their tasks and powers, perform
the state management of judicial expertise in their localities.
Article 40. Tasks and powers of the Ministry of Justice
1. To
promulgate or propose competent state agencies to promulgate legal documents on
judicial expertise, and guide the implementation of these documents.
To assume the
prime responsibility for elaborating and submitting to the Prime Minister
strategy, master plan and plans on general development of judicial expertise;
and coordinate with other ministries and ministerial-level agencies in
elaborating the development strategy, master plan and plans for each field of
judicial expertise.
2. To give
written opinions on the establishment of public judicial expertise institutions
falling under the deciding competence of line ministries and ministerial- level
agencies or provincial-level People's Committees; in case of necessity, to
propose ministries, ministerial-level agencies and provincial-level People's Committees
to consider and establish public judicial expertise institutions to meet
expertise requirements of procedural activities.
3. To
formulate programs on legal knowledge training for judicial experts; to
coordinate with other ministries and ministerial- level agencies in organizing
professional and legal knowledge training courses for judicial experts.
4. To
enumerate and make a general list of individual and institution performing
judicial expertise and post it on its e-portal.
5. To urge
the performance of the tasks of state management of judicial expertise by
ministries, ministerial-level agencies and provincial-level People's
Committees; to request ministries, ministerial-level agencies and
provincial-level People's Committees to report on judicial expertise
organization and activities; to report to the Government on judicial expertise
organization and activities nationwide.
6. To assume
the prime responsibility for, or request related ministries, ministerial-level
agencies or provincial-level People's Committees to organize the examination
and inspection of judicial expertise organization and activities.
7. To perform
the state management of international cooperation on judicial expertise.
Article 41. Tasks and powers of ministries and ministerial-level
agencies performing specialized management of judicial expertise
1. To
promulgate or propose competent state agencies to promulgate legal documents on
judicial expertise in the expertise areas under their respective management,
and guide the implementation of these documents.
2. To
promulgate judicial expertise regulations or guide the application of
professional regulations to judicial expertise activities according to the
requirements and particularities of the expertise areas under their management.
3. To assume
the prime responsibility for, and coordinate with the Ministry of Justice in,
deciding the establishment, consolidation and strengthening of public judicial
expertise institutions under their management in accordance with this Law.
4. To appoint
and dismiss judicial experts according to their competence; to make and
announce lists of ad hoc judicial expertise performers and ad hoc judicial
expertise institutions mentioned in Clause 1, Article 20 of this Law.
5. To ensure
expertise funds, equipment, facilities and means and other necessary material
conditions for public judicial expertise institutions under their management to
satisfy the requirements of assigned tasks.
6. To
annually evaluate the quality of operations of judicial expertise institutions,
ad hoc judicial expertise institutions, and judicial expertise performers in
the areas under their management.
7. To specify
conditions of physical foundations and expertise equipment, facilities and
means of judicial expertise offices in the areas under their management.
8. To
formulate and implement programs and plans on training in judicial expertise
and legal knowledge for judicial experts in the areas under their management.
9. To
examine, inspect and settle complaints and denunciations about judicial
expertise organization and activities in the areas under their management; to
coordinate with the Ministry of Justice in examining and inspecting judicial
expertise organization and activities in accordance with Clause 6, Article 40
of this Law.
10. To
implement international cooperation on judicial expertise in the areas under
their management.
11. To
annually review judicial expertise organization and activities in the areas
under their management and send reports thereon to the Ministry of Justice for
summarization and reporting to the Government.
Article 42. Tasks and powers of the Ministry of Health, the
Ministry of Public Security and the Ministry of National Defense
In addition
to the tasks and powers specified in Article 41 of this Law, the Ministry of
Health, the Ministry of Public Security and the Ministry of National Defense
have the following tasks and powers:
1. The
Ministry of Health:
a/ Performing
the state management of the areas of forensic medicine and psychiatric forensic
medicine expertise;
b/
Promulgating professional regulations in the areas of forensic medicine and
psychiatric forensic medicine expertise;
c/ Specifying
criteria of forensic medicine and psychiatric forensic medicine experts;
d/ Providing
training and retraining and granting certificates of professional skills in
forensic medicine or psychiatric forensic medicine expertise in accordance with
Point c, Clause 1, Article 7 of this Law.
2. The
Ministry of Public Security:
a/ Performing
the state management of criminological technique expertise;
b/
Promulgating professional regulations on criminological technique expertise;
c/ Specifying
criteria of criminological technique experts;
d/ Providing
training and retraining and granting certificates of professional skills in
criminological technique expertise in accordance with Point c, Clause 1,
Article 7 of this Law;
e/ Making
annual statistics on solicitation of judicial expertise, assessment of judicial
expertise performance and use of judicial expertising conclusions in the system
of investigation agencies under their management;
f/ Guiding
investigation agencies under their management in applying legal provisions on
solicitation of judicial expertise and evaluation and use of judicial
expertising conclusions;
g/ Ensuring
funds and guiding the payment of judicial expertise charges in the system of
investigation agencies under their management;
h/ Annually
reviewing and sending to the Ministry of Justice reports on solicitation of
judicial expertise, assessment of judicial expertise performance and use of
judicial expertising conclusions in the system of investigation agencies under
their management.
3. The
Ministry of National Defense has the rights and powers specified at Points e,
f, g and h, Clause 2 of this Article.
Article 43. Tasks and powers of provincial-level People's
Committees
1.
Provincial-level People's Committees have the following tasks and powers:
a/
Establishing public judicial expertise institutions; deciding on licensing the
establishment of judicial expertise offices; making and announce lists of
judicial expertise institutions and ad hoc judicial expertise institutions in
their localities;
b/ Appointing
or dismissing judicial experts according to their competence; making and
announcing lists of judicial experts in their localities;
c/ Ensuring
operation funds and means, physical foundations and other necessary conditions
for public judicial expertise institutions in their localities;
d/ Organizing
professional and legal knowledge training for judicial experts in their
localities;
e/ Annually
evaluating the organization and quality of judicial expertise activities in
their localities; ensuring the quantity and quality of judicial experts and ad
hoc judicial expertise performers, promptly and qualitatively meeting expertise
requirements of procedural activities in their localities;
f/ Examining,
inspecting and settling complaints and denunciations about judicial expertise
according to their competence; and coordinating with the Ministry of Justice in
examining and inspecting the judicial expertise organization and activities in
accordance with Clause 6, Article 40 of this Law;
g/ Sending
reports on judicial expertise organization and activities in their localities
to the Ministry of Justice and concurrently to related ministries and
ministerial-level agencies for performing the state management tasks specified
in Articles 40, 41 and 42 of this Law.
2.
Provincial-level Service of Justices shall assist provincial-level People's
Committees in the state management of judicial expertise in their localities;
assume the prime responsibility for, and coordinate with specialized agencies
in, assisting provincial-level People's Committees in managing operations of
judicial expertise offices.
Specialized
agencies of provincial-level People's Committees shall assist provincial-level
People's Committees in the state management of the specialized areas of
judicial expertise and be answerable to the latter for judicial expertise
organization and activities in these areas; and coordinate with
provincial-level Service of Justices in assisting provincial-level People's
Committees in performing the state management of judicial expertise in their
localities.
Article 44. Responsibilities of the Supreme People's Court
and the Supreme People's Procuracy
1. To guide
the application of legal provisions on solicitation of judicial expertise and
evaluation and use of judicial expertise results in the systems of People's
Court and People's Procuracy.
2. To make
statistics on solicitation of judicial expertise, assessment of judicial
expertise performance and use of judicial expertising conclusions in the
systems of people's courts and People's Procuracy, and report them to the
National Assembly in annual work reports.
3. To
coordinate with the Ministry of Justice in making statistics and reports on
solicitation of judicial expertise, assessment of judicial expertise
performance and use of judicial expertising conclusions.
4. To ensure
funds for and guide the payment of the judicial expertise charge in the systems
of people's courts and People's Procuracy
Chapter VIII
IMPLEMENTATION
PROVISIONS
Article 45. Effect
.1. This Law
takes effect on January 1, 2013.
2. Ordinance
on Judicial Expertise No. 24/2004/PL-UBTVQH11 ceases to be effective on the effective
date of this Law.
3. From the
effective date of this Law, the provisions of the Criminal Procedure Code, the
Civil Procedure Code and the Administrative Procedure Law on judicial expertise
which are different from those of this Law will be superseded by the provisions
of this Law.
Article 46. Implementation detailing and guidance
The
Government, Supreme People's Court and Supreme People's Procuracy shall detail
and guide the implementation of articles and clauses assigned to them in this
Law.
This Law
was passed on June 20, 2012, by the XIIIth National Assembly of the
Socialist Republic of Vietnam at its 3rd session.
CHAIRMAN
OF THE NATIONAL ASSEMBLY
Nguyen Sinh Hung |
Ý KIẾN