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THE NATIONAL
ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
13/2012/QH13
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Hanoi, July
20, 2012
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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.
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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.
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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.
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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
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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;
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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
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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.
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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.
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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.
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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:
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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;
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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.
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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.
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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
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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
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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;
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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
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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;
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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:
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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;
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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;
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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:
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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:
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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;
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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.
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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
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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;
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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