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THE MINISTRY OF
JUSTICE
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 09/2023/TT-BTP
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Hanoi, December
29, 2023
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CIRCULAR
ON JUDICIAL EXPERTISE
IN THE JUDICIAL FIELD
Pursuant to the Law on Judicial Expertise dated
June 20, 2012;
Pursuant to the Law on amendments to the Law on
Judicial Expertise dated June 10, 2020;
Pursuant to Government’s Decree No.
85/2013/ND-CP dated July 29, 2013 on elaboration of the Law on Judicial
Expertise;
Pursuant to Decree No. 157/2020/ND-CP dated
December 31, 2020 of the Government on amendments to Decree 85/2013/ND-CP dated
July 29, 2013 of the Government on elaboration of the Law on Judicial
Expertise;
Pursuant to Government's Decree No.
98/2022/ND-CP dated November 29, 2022 on functions, tasks, powers and
organizational structure of the Ministry of Justice;
At the request of Director of Department of
Judicial Assistance;
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Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular provides for the scope of judicial
expertise activities in the judicial field; judicial experts, ad hoc judicial
expertise performers, ad hoc judicial expertise institutions, Judicial
Expertise Council; receipt and performance of judicial expertise; application
of professional standards for judicial expertise activities; judicial expertise
time limit; documents and archives of judicial expertise records.
Article 2. Regulated entities
This Circular applies to judicial experts, ad hoc
judicial expertise performers, ad hoc judicial expertise institutions, and
agencies, units, organizations, and individuals involved in judicial expertise in
the judicial field.
Article 3. Scope of judicial expertise
activities in the judicial field
Judicial expertise in the judicial field is
expertise on professional content under the authority of the Ministry of
Justice and the Department of Justice as per the law.
Chapter II
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Article 4. Qualifications for appointment and issuance
of judicial expert cards, recognition of ad hoc judicial expertise performers,
and ad hoc judicial expertise institutions
1. Qualifications for appointment and issuance of
judicial expert cards specified in Point b, Clause 1, Article 7 of the Law on
Judicial Expertise are implemented as follows:
a) Obtain at least a bachelor’s degree in law or
other majors appropriate to their job title or position, trained by a
Vietnamese educational institution as per the law or by a foreign educational
institution and accredited for use in Vietnam.
b) Have working experience in the trained field for
at least 5 years from the date of recruitment or acceptance for work or
registration to practice in the judicial field, consistent with the field of
judicial expertise to which they are appointed.
2. Recognition of ad hoc
judicial expertise performers and ad hoc judicial expertise institutions
Based on the actual expertise needs in proceedings,
the heads of units affiliated to the Ministry of Justice shall take charge and
coordinate with the Department of Judicial Support in selecting qualified
people as prescribed in Article 18 of the Law on Judicial Expertise, and then
sending a request for recognition of ad hoc judicial expertise performers to
the Minister of Justice; the Director of the Department of Judicial Support
shall select qualified institutions as prescribed in Clause 1, Article 19 of
the Law on Judicial Expertise, Article 5 of this Circular and send a request
for recognition of ad hoc judicial expertise institutions to the Minister of
Justice.
Based on the expertise needs in local proceedings,
the Director of Department of Justice shall review and select qualified people
as prescribed in Article 18 of the Law on Judicial Expertise and qualified
institutions as prescribed in Clause 1, Article 19 of the Law on Judicial
Expertise, Article 5 of this Circular and send a request for recognition of ad
hoc judicial expertise performers and ad hoc judicial expertise institutions to
the Provincial People's Committee.
Article 5. Required facilities, equipment, and
means of expertise of ad hoc judicial expertise institutions in the judicial
field
Required facilities, equipment, and means of
expertise of ad hoc judicial expertise institutions in the judicial field
include:
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2. Have equipment to preserve and store expertise
subject matters and documents and other equipment to meet the requirements for
performing judicial expertise as per the law on judicial expertise and other
relevant laws.
Article 6. Judicial Expertise Council
In cases where it is necessary to establish an
Judicial Expertise Council in accordance with Article 30 of the Law on Judicial
Expertise, the head of the specialized unit with matters requiring expertise
needs to shall take charge and coordinate with the Director of the Department
of Judicial Assistance and the relevant units of the Ministry in selecting
members of the Judicial Expertise Council and requesting the Minister of
Justice to establish the Judicial Expertise Council; monitoring and urging the
expertise performance by the Judicial Expertise Council.
Chapter III
RECEIPT OF EXPERTISE SOLICITATIONS AND PETITIONS,
PERFORMANCE OF JUDICIAL EXPERTISE
Article 7. Receipt of expertise solicitations
and expertise petitions
1. Departments of Justice, ad hoc judicial
expertise institutions, judicial expertise performers, or other individuals,
professional organizations, organizations practicing in the judicial field, local
civil judgment enforcement agencies shall review, receive expertise
solicitations and perform expertise that are solicited by presiding agencies or
presiding officers at the district, provincial and central levels.
The Department of Justice assigns a unit under the
Department to be the focal point to review and advise on the initial reception
of the expertise solicitations in the Department; issue acknowledgement
documents, and appoint judicial expertise performers or refuse to perform the
judicial expertise within 5 working days of receiving the expertise
solicitations from presiding agencies or presiding officers.
When an expertise is solicited, the ad hoc judicial
expertise institution, the judicial expertise performer, or individual,
professional organization in the judicial field, local civil judgment
enforcement agency shall review and advise on whether to receive or refuse the
expertise solicitation within 5 working days of receiving the expertise
solicitation from the presiding agency or presiding officer.
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2. Ministry of Justice, ad hoc judicial expertise
institutions, specialized units, judicial expertise performers affiliated to
Ministry of Justice shall receive expertise solicitations and perform expertise
that are solicited by presiding agencies or presiding officers at central
level.
The Minister of Justice shall assign the Department
of Judicial Assistance as the focal point to review and advise on the initial reception
of the expertise solicitations in the Ministry. Within 1 working day of
receiving an expertise solicitation from the competent person, the Department
of Judicial Assistance shall propose the Ministry's Leader to assign tasks to
specialized units in line with the matter of expertise petition, advise on
whether to accept or refuse the expertise petition; if the matter of expertise
solicitation is related to many specialized units, the solicitation must
clearly specify the leading unit and coordinating units in advising on whether
to receive the expertise solicitation, accept or refuse to perform the
expertise.
Within 2 working days of receiving the assignment
from the Leader of the Ministry of Justice, the assigned specialized unit shall
take charge and cooperate with relevant units in advising and proposing the
Ministry Leader on whether to accept or refuse the judicial expertise
solicitation. If the expertise solicitation is accepted, a draft document on
appointment of judicial expertise performer is required.
The Leader of the Ministry of Justice shall
consider and decide whether to accept or refuse the expertise solicitation
within 2 working days of receiving the written solicitation.
If the head of the ad hoc judicial expertise
institution or a specialized unit under the Ministry of Justice is directly
solicited by a presiding officer, they shall assign a qualified unit, official,
or public employee to advise on whether to accept or refuse the expertise
solicitation within 5 working days of receiving the expertise solicitation.
3. If an official or a practitioner in judicial
field is directly solicited by a presiding officer, they shall consider whether
to accept or refuse the expertise solicitation within 5 working days of
receiving the expertise solicitation. If they accept the expertise
solicitation, they shall report it to their supervisory body for facilitation
of their expertise performance.
Article 8. Refusal of expertise solicitations or
petitions
1. Individuals, agencies, organizations, and units
specified in Article 7 of this Circular have the right to refuse expertise
solicitations or petitions in the cases specified in Clause 2, Article 11,
Point b, Clause 1 Article 24 and Article 34 of the Law on Judicial Expertise
(amended in 2020) or the matters of expertise solicitations or expertise
petitions are not in the judicial field specified in Article 3 or are not in
accordance with Article 7 of this Circular.
2. Refusal of expertise solicitations or petitions
must be made in writing and clearly state the reason for refusal within 5
working days of receiving the expertise solicitations or petitions.
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1. Assignment and appointment of judicial expertise
performers at the Ministry of Justice
a) If the Ministry of Justice is solicited
Based on the matter of the expertise petition, the
head of the specialized unit assigned by the Leader of the Ministry of Justice
shall select and propose appointment of judicial experts, or ad hoc judicial
expertise performers, or officials or public employees who are qualified to
perform the relevant expertise and the expected number of expertise performers.
In case at least two people are appointed to
perform the judicial expertise, an expertise team will be established, which
assigns the task of leader of the expertise team to one of the people proposed
to be appointed as the expertise performer.
b) In case an ad hoc judicial expertise institution
or a unit affiliated to the Ministry of Justice is solicited
Based on the matter of the expertise petition, the
head of the ad hoc judicial expertise institution or a unit affiliated to the
Ministry of Justice shall select and appoint judicial experts, or ad hoc
judicial expertise performers, or officials or public employees who are
qualified to perform the relevant expertise and the expected number of
expertise performers.
In case at least two people are appointed to
perform the judicial expertise, an expertise team will be established, which
assigns the task of leader of the expertise team to one of the people proposed
to be appointed as the expertise performer.
2. Assignment and appointment of judicial expertise
performers in local governments
a) If the Department of Justice is solicited
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In case at least two people are appointed to
perform the judicial expertise, an expertise team will be established, which
assigns the task of leader of the expertise team to one of the people proposed
to be appointed as the expertise performer.
b) If a professional individual or organization, or
corporate practitioner in the judicial field, or local civil enforcement agency
is solicited
Based on the matter of the expertise petition, the
head of the ad hoc judicial expertise institution or a specialized unit
affiliated to the Department of Justice, or professional organization or local
corporate practitioner in judicial field, or local civil enforcement agency
shall select and appoint people who are qualified to perform the relevant
expertise and the expected number of expertise performers.
In case at least two people are appointed to
perform the judicial expertise, an expertise team will be established, which
assigns the task of leader of the expertise team to one of the people proposed
to be appointed as the expertise performer.
3. The leader of the expertise team specified in
Clauses 1 and 2 of this Article is responsible for assigning specific tasks to
each member of the expertise team, assistants (if any), and administering the
preparation and performance of judicial expertise.
Article 10. Expertise process in the judicial
field
1. Expertise according to expertise solicitations
or petitions in the judicial field is carried out according to the following
process:
a) Delivery and receipt of documents, subject of
expertise solicitation or petition;
b) Prepare for expertise;
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d) Expertise conclusion;
dd) Return expertise conclusion;
e) Prepare, keep and preserve expertise records;
2. Issue together with this Circular a diagram of
the expertise process in the judicial field (Appendix I).
Article 11. Delivery and receipt of documents
and subject of expertise solicitation or petition
1. Judicial expertise performers/institutions shall
coordinate with the expertise solicitor or petitioner to deliver and receive
documents and subject of expertise, related information, objects, and samples
(if any).
2. The delivery and receipt of documents and
subject of expertise, related information, objects, and samples (if any) are
carried out in person or via postal service (with acknowledgement or delivery
note) and must be made in writing using the form specified in Article 19 of
this Circular.
3. In case documents and subject of expertise,
related information, objects, and samples (if any) are sealed, before opening,
the seal must be carefully checked, and a record of seal opening must be made
as specified in Article 19 of this Circular. Judicial expertise
performers/institutions may reject any instruments with a broken or tampered
seal.
Article 12. Preparation for judicial expertise
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2. The judicial expertise performer prepares the
expertise outline and, if necessary, sends it to the expertise solicitor or
petitioner for their opinions. Within 2 working days of receiving the
document, the expertise solicitor or petitioner is responsible for sending a
written response to the expertise outline.
The expertise outline includes the following basic
contents:
a) Subject matter and scope of expertise; estimated
duration of judicial expertise;
b) Determine the method of performing the expertise
and the professional standards to be applied;
c) Determine the details that requires verification
or survey the subject of expertise to support the expertise (if necessary);
d) Estimated means, supplies, and equipment to be
used (if any);
dd) Estimated costs needed to perform the judicial
expertise; advance and payment of expertise costs;
e) Other necessary conditions for performing the
expertise.
3. The expertise performer/insitution shall prepare
a request for advance of expertise costs and send it to the expertise solicitor
or petitioner. The expertise solicitor or petitioner shall consider
paying an advance to the expertise performer as per the law.
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1. Judicial expertise in the judicial field is
performed as follows:
a) Carefully research and analyze the expertise
solicitation, the subject of expertise, and the documents and information
provided by the expertise solicitor or petitioner;
b) Clearly identify the subject matters and
specialized contents that require consideration and evaluation;
c) Survey or verify necessary related issues that
the expertise solicitor or petitioner cannot provide documents or information
about these issues (if any);
d) Analyze the subject matters of expertise in
light of relevant professional standards;
dd) Provide comments, evaluation, and specific and
clear professional opinions on the subject matters of expertise according to
the expertise solicitation or petition;
e) Develop and issue expertise conclusion;
g) Prepare expertise records.
2. While performing the expertise, the judicial
expertise performer may use professional opinions or conclusion given by other
individuals or organizations to support their expertise.
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4. The judicial expertise performer must make a
document recording the entire process of performing the expertise in accordance
with Article 31 of the Law on Judicial Expertise (amended in 2020) and
according to the form specified in Article 19 This Circular.
Article 14. Expertise conclusion
1. The expertise conclusion in the judicial field
is made according to the form specified in Article 19 of this Circular.
2. In case a judicial expertise performer is
personally solicited, the expertise conclusion must be signed and clearly state
the full name of that judicial expertise performer.
3. If an agency, organization, or unit specified in
Article 7 of this Circular is solicited to perform an expertise, in addition to
the signature and full name of the judicial expertise performer, the judicial
expertise conclusion must bear the signature of the head of that agency,
organization, or unit and the seal of that agency, organization, or unit. The
above-mentioned agency, organization, or unit must be held liable for their
judicial expertise conclusion.
If the Ministry of Justice is solicited to perform
an expertise, the Minister of Justice shall assign the head of a specialized
unit in charge of the issue requiring expertise to sign under the order of the
Minister of Justice and affix the seal of the Ministry of Justice to the
expertise conclusion.
If the Department of Justice is solicited to
perform an expertise, the Director of the Department of Justice shall sign and
stamp the Department of Justice on the expertise conclusion.
4. In case the Judicial Expertise Council specified
in Article 6 of this Circular performs expertise in accordance with Clause 1,
Article 9 of this Circular, the Minister of Justice shall assign the head of
the specialized unit with the issue requiring expertise to sign per procuration
in the judicial expertise conclusion.
If the head of a specialized unit has performed the
expertise as the leader of the expertise team or President of the Judicial
Expertise Council, the Minister of Justice shall assign the Chief of the
Ministry Office to sign per procuration in the judicial expertise conclusion.
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Article 15. Return of expertise conclusion
1. The judicial expertise performer/insitution must
send the expertise conclusion to the expertise solicitor or petitioner
immediately after issuance and keep the expertise records. The expertise
conclusion is returned to the expertise solicitor either in person or by post.
2. If returned in person, the judicial expertise
performer shall return it as follows:
a) Notify the expertise solicitor or petitioner of
receiving the expertise conclusion and receiving back the evidence as
prescribed in clause 4 of this Article;
b) Check the letter of recommendation, identity
paper (police identification card or 12-digit citizen identification card,
etc.) of the person who receives the expertise conclusion and evidence;
c) Return 1 copy of the expertise conclusion;
d) Inspect, seal, and hand over the expertise
subject (if any).
3. If returned by post, the judicial expertise
performer shall return it as follows:
a) Check, pack, and seal 1 copy of the expertise
conclusion and return the subject of expertise if it falls into the case
specified in Clause 4 of this Article;
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4. In case the subject of expertise is an evidence
of the case or in necessary cases at the written request of the expertise
solicitor, the judicial expertise performer/institution shall return it after
completing the expertise. The delivery and return of the expertise subject must
be recorded in accordance with the form specified in Article 19 of this
Circular.
Article 16. Preparation, preservation and
archives of judicial expertise records
1. Judicial expertise records in the judicial field
belong to the group of Records dealing with cases in specialized management and
are prepared, preserved and archived in accordance with the Law on Judicial
Expertise (amended in 2020), legal regulations on records, archives, and
regulations of agencies and units performing expertise.
2. The judicial expertise performer shall prepare
expertise records, including the following main documents:
a) Expertise solicitation, additional expertise
solicitation (if any), re-expertise solicitation (if any) and the subject of
expertise, related information, objects, or comparative samples attached (if
any);
b) Assignment or appointment of judicial expertise
performer, or decision on establishment of expertise team, or decision on
establishment of Judicial Expertise Council;
c) Record of delivery and receipt of solicitation
documents and subject of expertise; record of unsealing of records, documents,
and objects;
d) Expertise outline (if any);
dd) Document recording the expertise process;
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g) Records, documents and proof related to the use
of services for judicial expertise (if any);
h) Judicial expertise conclusion;
i) Record of delivery and receipt of expertise
conclusion; return the subject of expertise (if any);
k) Other documents related to the expertise (if
any).
3. Within 1 month from the date of completion of
the expertise, the judicial expertise performer shall hand over the expertise
records to the superior body for archives in accordance with Clause 1 of this
Article.
The expertise records of the expertise team are
handed over to the unit whose member is assigned to be the leader of the
expertise team.
The expertise records of the Judicial Expertise
Council are handed over to the unit whose member is the President of the
Council.
The agency, organization, or unit that receives the
handover of the judicial expertise records shall archive them in accordance
with the law on archives and the regulations of the Ministry of Justice.
4. Judicial expertise records can be used as
follows:
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b) Judicial expertise performers are entitled to
use judicial expertise records to serve their participation in legal
proceedings at the request of the competent presiding agencies or expertise
petitioners.
c) Other cases as prescribed by relevant laws.
Article 17. Judicial expertise time limit
The judicial expertise time limit is set out in
Article 26a of the Law on Judicial Expertise (amended in 2020). The duration of
each step in the expertise process is specified in the expertise process
diagram in the judicial field issued together with this Circular.
Article 18. Professional standards applicable to
judicial expertise activities
Professional standards applied to expertise
activities in the judicial field are provisions in legal documents on the
fields specified in Article 3 of this Circular and other relevant documents of
competent authorities and persons.
Article 19. Forms of expertise documents in the
judicial field
11 forms of expertise documents in judicial field
are issued together with this Circular (Appendix II).
Article 20. Regulations and policies for
judicial expertise performers/institutions
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2. Officials, public employees, and workers in the
judicial fields; units under the Ministry of Justice, Department of Justice;
individuals and organizations practicing in the judicial field who successfully
complete expertise tasks or actively participate in expertise activities will
be promptly rewarded by the Minister of Justice or the President of the
Provincial People's Committee.
3. The head of the superior body of the judicial
expertise performer shall ensure the availability of time and other resources
necessary for the performance of the expertise within their agency or
organization; take charge and cooperate with relevant agencies and units in
requesting the Minister of Justice or President of the Provincial People's
Committee to provide occasional rewards for the judicial expertise performer
within their agency or organization who demonstrate exceptional success in
completing expertise tasks or active engagement in expertise activities.
Chapter IV
RESPONSIBILITIES AND IMPLEMENTATION
Article 21. Responsibilities of agencies and
units in managing judicial expertise in the judicial field
1. The Department of Judicial Assistance, which is
the focal point helping the Minister of Justice organize and carry out judicial
expertise in the judicial field, shall do the following:
a) Take charge and cooperate with specialized or
relevant agencies and units to organize propagation and dissemination of laws
on judicial expertise, provide training and refresher courses in legal
knowledge and judicial expertise skills for judicial expertise performers in
the judicial field;
b) Carry out preliminary, summary, evaluation and
reporting on judicial expertise activities in the judicial field;
c) Check and inspect judicial expertise according
to their authority;
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dd) Other tasks according to this Circular.
2. Responsibilities of specialized units under the
Ministry of Justice:
a) Advise, propose contents or guidance on the
application of professional standards in expertise activities, the performance
of expertise in specialized fields within their scope of functions;
b) Develop and train human resources to be
qualified judicial experts in their field of management.
c) Prepare and be responsible for the contents and
materials of training and refresher courses in expertise in specialized fields
within their scope of functions;
d) Coordinate with the Department of Judicial
Assistance and relevant agencies and units to provide training and refresher
courses in legal knowledge and expertise for judicial expertise performers;
dd) Prepare and archive expertise records;
e) Propose rewards for judicial expertise
performers within their units;
g) Comply with reporting regulations in accordance
with this Circular;
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3. The resolution of complaints and whistleblowing
reports about judicial expertise at the Ministry of Justice shall comply with
the law on resolution of complaints and whistleblowing reports.
4. The Department of Justice shall assist the
Provincial People's Committee in managing judicial expertise activities in the
province and do the following:
a) Assign a unit to be the focal point to assist
the Department in managing judicial expertise in the judicial field under their
management;
b) Take charge and coordinate with relevant
agencies in providing legal knowledge training for judicial expertise
performers in the local judicial field;
c) Check, inspect, and resolve complaints and
whistleblowing reports about judicial expertise according to their authority;
d) Propose and provide rewards for individual and
corporate judicial expertise performers as per the law;
dd) Send annual reports on judicial expertise
activities in their local field of management to the Ministry of Justice (via
the Department of Judicial Assistance) and the Provincial People's Committee.
Article 22. Reporting requirements
1. At the Ministry of Justice
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b) Before December 30 every year, the Department of
Judicial Assistance shall make a final report and evaluation of the judicial
expertise activities in the judicial field and submit it to the Minister of
Justice.
2. In provinces/cities
a) Before December 15 every year, the unit which is
directly solicited or assigned to perform judicial expertise, the unit whose
member is the leader of the expertise team (if any) shall send a report on
expertise performance to the Department of Justice for further reporting to the
Provincial People's Committee and the Ministry of Justice.
b) Before December 20 every year, the Department of
Justice shall make a final report and evaluation of judicial expertise
activities in the province, propose to the Provincial People's Committee for
rewards (if any), and send a report to the Ministry of Justice.
Article 23. Transitional regulations
1. Previously appointed and recognized judicial
experts, ad hoc judicial expertise performers, ad hoc judicial expertise
institutions in the judicial field as per the law before the effective date of
this Circular need not undergo further appointment or recognition under this
Circular, as long as they meet the ongoing qualifications in Article 4 and
Article 19(1) of the Law on Judicial Expertise.
2. Expertise solicitations that are received and performed
before the effective date of this Circular but for which no conclusion has yet
been issued, shall continue to be performed in accordance with this Circular.
Article 24. Entry into force
1. This Circular comes into force as of December
29, 2023
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PP. MINISTER
DEPUTY MINISTER
Mai Luong Khoi