Chương V Luật giám định tư pháp 2012: Hoạt động giám định tư pháp

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.