Circular No. 01/2021/TT-BCT amends and supplements certain Articles of Circular No. 30/2016/TT-BCT dated December 13, 2016, issued by the Minister of Industry and Trade on forensic examination in the industry and trade sector.

CIRCULAR

Amending and supplementing certain Articles of Circular No. 30/2016/TT-BCT dated December 13, 2016, issued by the Minister of Industry and Trade on forensic examination in the field of industry and trade              

Pursuant to the Law on Forensic Expertise dated June 20, 2012; the Law Amending and Supplementing Certain Provisions of the Law on Forensic Expertise dated June 10, 2020;

Pursuant to Decree No. 85/2013/NĐ-CP dated July 29, 2013, promulgated by the Government detailing and providing implementation measures for the Law on Forensic Examination; Decree No. 157/2020/NĐ-CP dated December 31, 2020, promulgated by the Government amending and supplementing certain Articles of Decree No. 85/2013/NĐ-CP dated July 29, 2013, promulgated by the Government detailing and providing implementation measures for the Law on Forensic Examination;

Decree No. Decree No. 98/2017/NĐ-CP dated August 18, 2017, promulgated by the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

At the proposal of the Director of the Legal Department, the Director of the Cadre and Civil Servant Organization Department, and the Director of the Science and Technology Department;

The Minister of Industry and Trade hereby issues this Circular amending and supplementing certain Articles of Circular No. 30/2016/TT-BCT dated December 13, 2016, issued by the Minister of Industry and Trade on forensic examination in the field of industry and trade.

Article 1. Amending and supplementing certain Articles of Circular No. 30/2016/TT-BCT dated December 13, 2016, issued by the Minister of Industry and Trade on forensic examination in the field of industry and trade

1. Amending and supplementing Clause 1 of Article 1 as follows:

"1. This Circular stipulates the scope of forensic examination; standards, procedures for appointing and dismissing forensic examiners; issuing and revoking forensic examiner cards; recognizing and announcing lists of persons conducting forensic examinations on a case-by-case basis, organizations conducting forensic examinations on a case-by-case basis; assigning persons to participate in forensic examinations on a case-by-case basis; implementing forensic examination activities; deadlines for forensic examinations; forensic examination files; applying technical standards in forensic examination activities; costs of forensic examination and forensic examination allowance in the field of industry and trade."

2. Supplementing Article 2a after Article 2 as follows:

"Article 2a. Scope of forensic examination in the field of industry and trade

Forensic examination in the field of industry and trade includes forensic examination of specialized issues within the scope of functions, tasks, and powers of the Ministry of Industry and Trade as prescribed by law in the following fields:

1. Energy.

2. Chemicals, industrial explosives.

3. Heavy industry, light industry.

4. Industrial safety technology.

5. Food safety.

6. Export and import of goods.

7. E-commerce.

8. Market management.

9. Competition and consumer protection.

10. Trade promotion.

11. Other fields as prescribed by law."

3. To amend Clause 3 of Article 3 as follows:

"3. Having at least five years of practical experience in the field of specialization."

4. Amend Point c Clause 1 Article 4 as follows:

"c) Having at least five years of practical experience in the field of specialization."

5. Amending and supplementing Clause 1 of Article 5 as follows:

"1. Procedure for appointing forensic examiners at the Ministry of Industry and Trade:

a) Based on the actual needs of litigation activities, agencies, units, organizations, or individuals shall select and prepare a dossier based on the criteria stipulated in Article 3 of this Circular to propose the appointment of forensic examiners to the Legal Department;

b) The Director of the Legal Department shall take the lead and coordinate with the Director of the Cadre and Civil Servant Organization Department to review the dossier and submit it to the Minister of Industry and Trade for decision on the appointment of forensic examiners."

6. Supplement Article 5a after Article 5 as follows:

"Article 5a. Issuing new, reissuing, and revoking forensic examiner cards

1. The issuance of new and revocation of forensic examiner cards shall be carried out simultaneously with the appointment and dismissal of forensic examiners.

2. The format, procedure, and process for issuing new and reissuing forensic examiner cards shall be implemented in accordance with the provisions of Circular No. 11/2020/TT-BTP dated December 31, 2020, issued by the Minister of Justice on the format, procedure, and process for issuing new and reissuing forensic examiner cards."

7. Amend and supplement Clause 1 of Article 6 as follows:

"1. A certificate from the head of the agency, unit, or organization regarding the period of professional activity in the field of specialization according to the model attached as Appendix VI to this Circular."

8. Amend Clause 2 of Article 7 as follows:

"2. Agencies, units, or organizations managing forensic examiners shall prepare a dossier to propose the dismissal of forensic examiners and send it to the Legal Department. The Director of the Legal Department shall take the lead and coordinate with the Director of the Cadre and Civil Servant Organization Department to examine the dossier and submit it to the Minister of Industry and Trade for consideration and decision on the dismissal of forensic examiners at the Ministry of Industry and Trade."

9. Amend Point a of Clause 1 of Article 8 as follows:

"a) For forensic examiners appointed by the Minister of Industry and Trade: Within five working days from the date of the appointment decision, the Legal Department shall prepare and send the list of forensic examiners to the Office of the Ministry for publication on the Ministry of Industry and Trade's electronic portal, and simultaneously send it to the Ministry of Justice to establish a common list.

The Office of the Ministry shall be responsible for publishing the list of forensic examiners on the Ministry of Industry and Trade's electronic portal within three working days from the date of receipt of the list."

10. Amend and supplement Point a of Clause 2 of Article 8 as follows:

"a) Based on the actual needs of litigation activities, agencies, units, or organizations shall select and prepare a list of persons conducting forensic examinations on a case-by-case basis based on the criteria stipulated in Article 4 of this Circular; select and prepare a list of organizations conducting forensic examinations on a case-by-case basis based on Clause 1 of Article 19 of the Law on Forensic Examination and send them to the Legal Department. Within ten days from the date of receiving complete valid dossiers, the Director of the Legal Department shall take the lead and coordinate with the Director of the Cadre and Civil Servant Organization Department to review the dossiers and submit them to the Minister of Industry and Trade for decisions on recognizing persons conducting forensic examinations on a case-by-case basis, organizations conducting forensic examinations on a case-by-case basis.

The Legal Department shall send the list of persons conducting forensic examinations on a case-by-case basis, organizations conducting forensic examinations on a case-by-case basis along with the information stipulated in Article 24 of Decree No. 85/2013/NĐ-CP dated July 29, 2013, promulgated by the Government detailing and providing implementation measures for the Law on Forensic Examination to the Office of the Ministry for publication on the Ministry of Industry and Trade's electronic portal, and simultaneously send it to the Ministry of Justice to establish a common list in accordance with the law;"

11. Amend and supplement Clause 1 and Clause 4 of Article 9 as follows:

"1. At the Ministry of Industry and Trade:

a) In case the Ministry of Industry and Trade receives a decision on judicial expertise request containing matters within the scope of management of the Ministry of Industry and Trade, the Legal Department shall take the lead, coordinate with the Cadre and Civil Servant Organization Department and relevant agencies and units to select persons suitable for conducting judicial expertise according to the content of the expertise request, propose the form of expertise, and submit to the Minister of Industry and Trade for signing the document assigning persons to conduct expertise and the form of expertise for the requested contents within five working days from the date of receipt of the request.

b) In case agencies and units under the Ministry receive a decision on judicial expertise request containing matters within their scope of state management, the head of the agency or unit shall be responsible for receiving and assigning persons to conduct judicial expertise within five working days from the date of receipt of the request.

"4. In cases where the content of the judicial expertise request does not fall within the scope of state management of the Ministry of Industry and Trade, exceeds the capacity and professional conditions for expertise; the objects of expertise and related materials provided are insufficient or have no value for concluding expertise even after requesting the requesting party to supplement and clarify but without response; there is not enough time to conduct expertise; the content of expertise requires a legal nature; falls under the circumstances prohibited from conducting judicial expertise as stipulated in Article 34 of the Judicial Expertise Law; the independence and objectivity of the expertise process cannot be guaranteed or there are other legitimate reasons, the Legal Department shall take the lead, coordinate with the Cadre and Civil Servant Organization Department and relevant agencies and units to submit to the Minister of Industry and Trade for signing the document rejecting the acceptance of the judicial expertise request and send it to the requesting party.

12. Amend point a of Clause 3, Article 11 as follows:

"a) The Legal Department shall take the lead, coordinate with the Cadre and Civil Servant Organization Department, the Science and Technology Department and relevant agencies and units to select persons suitable for conducting judicial expertise according to the content of the expertise request, and submit to the Minister of Industry and Trade for deciding to establish the Expertise Board;"

13. Add Article 14a after Article 14 as follows:

"Article 14a. Time limit for judicial expertise

1. Time limit for judicial expertise:

a) Maximum three months for cases prescribed in Article 2a of this Circular, except for cases prescribed in points b and c of this clause. For cases involving two or more different areas of expertise in commerce and industry as prescribed in Article 2a of this Circular or having complex nature and involving many organizations and individuals, the maximum time limit for expertise is four months;

b) Maximum nine days for cases required to make a judicial expertise request as prescribed in Clause 5, Article 206 of the Criminal Procedure Code 2015;

c) Maximum one month for cases required to make a judicial expertise request as prescribed in Clause 6, Article 206 of the Criminal Procedure Code 2015.

2. The time limit for judicial expertise prescribed in Clause 1 of this Article shall be calculated from the date when the Ministry of Industry and Trade, Department of Industry and Trade receives the decision of the requesting party along with complete files, objects of expertise, information, documents, items, samples necessary for expertise; or from the date when the judicial expert, person conducting judicial expertise in a specific case, organization conducting judicial expertise in a specific case directly receives the decision of the requesting party along with complete files, objects of expertise, information, documents, items, samples necessary for expertise.

3. In case of necessity, the time limit for judicial expertise may be extended according to the decision of the requesting agency but not exceeding half of the maximum time limit for that type of work.

14. Amend and supplement Clause 2, Article 16 as follows:

"2. The handover, preservation, and storage of files shall be carried out as follows:

a) Files of judicial expertise conducted by the person conducting expertise shall be handed over to the direct managing agency, unit, or organization. Files of judicial expertise in cases of collective expertise shall be handed over to the direct managing agency, unit, or organization of the member assigned as the main coordinator for conducting the expertise. Files of judicial expertise conducted by the Expertise Board shall be handed over to the direct managing agency, unit, or organization of the member serving as the Chairman of the Expertise Board;

b) Agencies, units, and organizations under the Ministry of Industry and Trade receiving files of judicial expertise shall be responsible for preserving and storing them in accordance with the laws on archives and the Regulations on Archive Work issued together with Decision No. 453/QĐ-BCT dated February 12, 2020 of the Minister of Industry and Trade. Agencies, units, and organizations under the Department of Industry and Trade receiving files of judicial expertise shall be responsible for preserving and storing them in accordance with the laws on archives and the regulations of the provincial People's Committee and the Department of Industry and Trade.

15. Amend and supplement Article 19 as follows:

"Article 19. Implementation Organization

1. The Legal Department shall perform the following tasks:

a) Take the lead, coordinate with units under the Ministry to draft normative legal documents on judicial expertise in the field of industry and trade to submit to the Minister of Industry and Trade for issuance or to submit to the competent authority for issuance;

b) Take the lead, coordinate with the Cadre and Civil Servant Organization Department and relevant agencies and units to assist the Minister of Industry and Trade in implementing the appointment and dismissal of judicial experts; issuing new, reissuing, and revoking judicial expert cards; recognizing and canceling recognition of persons conducting judicial expertise in specific cases, organizations conducting judicial expertise in specific cases; compiling and sending lists of individuals and organizations conducting judicial expertise to the Ministry of Justice as prescribed; assigning persons to participate in judicial expertise in specific cases; establishing the Expertise Board;

c) Take the lead, coordinate with relevant agencies and units to guide, publicize, and disseminate laws on judicial expertise;

d) Take the lead in implementing supervision, urging agencies, units, organizations, and individuals related to the implementation of laws and regulations on judicial expertise and the provisions of this Circular;

đ) Take the lead in implementing the mid-term review, final evaluation, and assessment of the organization and operation of judicial expertise in the field of industry and trade; submitting regular or ad hoc reports to the Ministry of Justice and competent authorities as prescribed by law;

e) Based on the results and quality of the performance of judicial appraisal work, the Legal Department shall coordinate with the Ministry's Office and relevant agencies and units to examine and propose the Ministry's leadership or competent authority to honor and reward outstanding collectives and individuals in judicial appraisal work according to the regulations of the Minister of Industry and Trade guiding the implementation of competition and commendation activities in the industry of Industry and Trade and the laws on competition and commendation.

g) Coordinate with relevant agencies and units to implement the tasks prescribed in Clause 2, Clause 3, Clause 4, and Clause 5 of this Article.

2. The Organization and Cadres Department shall take the lead and coordinate with the Legal Department, the Central Training School for Industry and Trade Officials, and relevant agencies, units, and organizations to organize training and professional development in judicial appraisal expertise and legal knowledge for judicial appraisers in the field of industry and trade.

3. The Science and Technology Department shall take the lead and coordinate with relevant agencies and units to review, improve, compile, and guide the application of specialized standards and technical specifications in the field of industry and trade to serve judicial appraisal activities.

4. The Ministry's Office shall be responsible for publishing and updating the list of individual and organizational judicial appraisers, the list of specialized standards and technical specifications applicable to judicial appraisal activities in the field of industry and trade on the Ministry of Industry and Trade's electronic portal within three working days from the date of receipt of the lists and directories sent by the Legal Department and the Science and Technology Department.

5. Based on the practical needs of litigation activities, the heads of agencies and units under the Ministry shall aggregate the conditions regarding material infrastructure, equipment, and means of appraisal of judicial appraisal organizations involved in cases within their management scope and submit them to the Financial Affairs and Enterprise Reform Department for consolidation and reporting to the competent authority for examination, guidance, or resolution in accordance with the provisions of the law.

6. The Director of the Ministry's Office, the Inspector General of the Ministry, the Director of the Market Management General Department, the Heads of Departments under the Ministry, the Heads of Bureaus under the Ministry, the Directors of Provincial and Municipal Industry and Trade Departments directly under the central government, the Heads of agencies, units, organizations, and individuals related thereto shall be responsible for implementing this Circular.

16. Supplement Appendix VI - Model Certificate of Professional Activity Time to Circular No. 30/2016/TT-BCT as set out in the Appendix attached to this Circular.

Article 2. Replacing and Abolishing Certain Phrases in Circular No. 30/2016/TT-BCT

1. Replace the phrase "Electronic Commerce and Information Technology Department" with the phrase "Ministry's Office" in Clause 3, Article 12.

2. Replace the phrase "ten working days" with the phrase "five working days" in Clause 3, Article 13.

3. Abolish the phrase "In the case of specific request for appraisal, it must be certified in accordance with the provisions of the law" in Model No. 1 of Appendix III.

Article 3. Implementation Provisions

1. This Circular takes effect from May 20, 2021.

2. Transitional provisions:

Judicial Appraisers, individual judicial appraisers, and judicial appraisal organizations currently conducting judicial appraisals based on requests for judicial appraisals made before the effective date of this Circular shall continue to follow the provisions of Circular No. 30/2016/TT-BCT, except where higher-level legal documents provide otherwise.

3. In cases where the legal normative documents cited for application in this Circular are amended, supplemented, or replaced, the amended, supplemented, or replaced documents shall apply.

4. During the implementation of this Circular, if there are difficulties or obstacles, organizations and individuals should report to the Ministry of Industry and Trade (through the Legal Department) for guidance and resolution.

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