Circular No. 03/2022/TT-BKHCN on forensic examination in scientific and technological activities

CIRCULAR

Regulations on forensic examination in scientific and technological activities

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

Pursuant to the Government Decree No. 85/2013/NĐ-CP dated July 29, 2013 detailing and guiding the implementation of the Law on Forensic Examination; the Government Decree No. 157/2020/NĐ-CP dated December 31, 2020 amending and supplementing certain provisions of the Government Decree No. 85/2013/NĐ-CP dated July 29, 2013 detailing and guiding the implementation of the Law on Forensic Examination; Issuing this Circular on forensic examination in scientific and technological activities.

Pursuant to Decree No. 95/2017/NĐ-CP dated August 16, 2017, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

At the proposal of the Director of the Legal Department;

Minister of of Science and Technology This Circular stipulates forensic examiners, ad hoc forensic examiners, ad hoc forensic examination organizations, and the conduct of forensic examination in scientific and technological activities.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

1. Units under the Ministry of Science and Technology, specialized agencies for science and technology under provincial People's Committees and municipal People's Committees directly under the Central Government (hereinafter referred to as specialized agencies for science and technology).

Article 2. Applicability

2. Relevant agencies, organizations, and individuals.

Forensic examination in scientific and technological activities as prescribed in this Circular includes forensic examination in the following fields: standards, technical regulations, measurement, product quality, goods quality (hereinafter referred to as standards, measurement, and quality); technology, equipment, machinery; industrial property; atomic energy.

2. Livestock breeding and veterinary science;

FORENSIC EXAMINERS, AD HOC FORENSIC EXAMINERS, AD HOC FORENSIC EXAMINATION ORGANIZATIONS IN SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES

Chapter II

Article 4. Criteria for appointing forensic examiners in scientific and technological activities

1. Vietnamese citizens residing in Vietnam who meet the following criteria may be considered and appointed as forensic examiners in scientific and technological activities:

a) Having good health and moral character;

b) Having a bachelor's degree or higher and having at least five years of practical experience in the field of their education.

2. Persons falling into any of the following cases shall not be appointed as forensic examiners in scientific and technological activities:

a) Losing civil capacity or being restricted in civil capacity;

b) Being pursued for criminal responsibility; having been convicted but not yet rehabilitated for negligent crimes or minor intentional crimes; having been convicted for serious intentional crimes, very serious intentional crimes, or extremely serious intentional crimes;

c) Being subject to administrative educational measures at commune, ward, or town level, compulsory drug rehabilitation, or compulsory educational measures.

3. In addition to the provisions of Clause 1 and Clause 2 of this Article, forensic examiners in the fields of technology, equipment, machinery, atomic energy, and industrial property (for objects such as inventions, integrated circuit layout designs) must have a bachelor's degree or higher in the following majors:

a) Major in science and technology for forensic examination in the field of technology, equipment, and machinery;

b) One of the majors in nuclear physics, nuclear technology, or radiation chemistry for forensic examination in the field of atomic energy;

c) One of the majors in science and technology, physics, chemistry, or biology for forensic examination of industrial property objects that are inventions or integrated circuit layout designs.

a) The field of science, technology, and technology for forensic examination in the field of technology, equipment, and machinery;

b) One of the fields of nuclear physics, nuclear technology, or radiation chemistry for forensic examination in the field of atomic energy;

c) One of the fields of science, technology, and technology, physical sciences, chemistry, or biology for forensic examination of industrial property objects that are inventions or integrated circuit layout designs.

Article 5. Appointment, Removal, and Publication of Lists of Forensic Experts in Scientific and Technological Activities

1. Based on the practical needs of litigation activities, the Minister of Science and Technology, the Chairman of the People's Committee of the province or centrally governed city (hereinafter referred to as the provincial People's Committee) shall consider and appoint forensic experts in scientific and technological activities.

2. The procedures for appointment and removal of forensic experts in scientific and technological activities shall be carried out in accordance with the provisions of Clause 2, Article 9 and Clauses 3 and 4, Article 10 of the Law on Forensic Appraisal (amended and supplemented at Clause 5 and Clause 6, Article 1 of the Law Amending and Supplementing Certain Provisions of the Law on Forensic Appraisal):

a) The head of the relevant unit under the Ministry of Science and Technology shall prepare the dossier in accordance with the regulations and submit it to the Department of Legal Affairs for consolidation;

b) The specialized agency on science and technology shall consolidate the dossier of individuals within its management authority or upon the request of related agencies at the local level.

3. Publication of Lists of Forensic Experts:

a) The Department of Legal Affairs shall be responsible for compiling the list of forensic experts in scientific and technological activities appointed by the Minister of Science and Technology. The list of forensic experts of the Ministry of Science and Technology shall be published on the Ministry’s official website, and simultaneously sent to the Ministry of Justice to compile a consolidated list;

b) The specialized agency on science and technology shall be responsible for compiling the list of forensic experts in scientific and technological activities appointed by the Chairman of the provincial People's Committee. The list of forensic experts in scientific and technological activities at the local level shall be published on the provincial People's Committee’s official website, and simultaneously sent to the Ministry of Justice to compile a consolidated list.

Article 6. Criteria for Selecting Individual Forensic Experts in Scientific and Technological Activities

An individual forensic expert in scientific and technological activities must be a Vietnamese citizen residing in Vietnam, meeting the requirements stipulated in Clause 1 and Clause 2, Article 18 of the Law on Forensic Appraisal, and not falling under any of the circumstances specified in Clause 2, Article 4 of this Circular.

Article 7. Criteria for Selecting Organizations Engaged in Forensic Appraisal in Scientific and Technological Activities

Organizations engaged in forensic appraisal in scientific and technological activities must meet the following conditions:

1. Having legal personality;

2. Engaging in specialized activities consistent with the fields of forensic appraisal as prescribed in Article 3 of this Circular;

3. Possessing specialized staff, facilities, equipment, and means to ensure the conduct of forensic appraisal in the fields prescribed in Article 3 of this Circular.

Article 8. Recognition and Publication of Lists of Individual Forensic Experts and Organizations Engaged in Forensic Appraisal in Scientific and Technological Activities

1. The head of units under the Ministry of Science and Technology shall base on the criteria prescribed in Articles 6 and 7 of this Circular to select individual forensic experts and organizations engaged in forensic appraisal in scientific and technological activities, submit them to the Department of Legal Affairs for consolidation, and compile a consolidated list.

The Department of Legal Affairs shall take the lead and coordinate with relevant units to submit to the Minister for decision on recognizing individual forensic experts and organizations engaged in forensic appraisal in scientific and technological activities.

The list prescribed in this clause and the information to be disclosed as stipulated in Article 24 of Decree No. 85/2013/ND-CP dated July 29, 2013 of the Government detailing and providing measures to implement the Law on Forensic Appraisal (hereinafter referred to as Decree No. 85/2013/ND-CP) shall be published on the Ministry of Science and Technology’s official website, and simultaneously sent to the Ministry of Justice to compile a consolidated list.

2. The specialized agency on science and technology shall base on the criteria prescribed in Articles 6 and 7 of this Circular to select and compile lists of individual forensic experts and organizations engaged in forensic appraisal in scientific and technological activities within their management authority.

Depending on assigned tasks, the specialized agency on science and technology shall take the lead or coordinate with related agencies and units to submit to the Chairman of the provincial People's Committee for decision on recognizing individual forensic experts and organizations engaged in forensic appraisal in scientific and technological activities.

The list prescribed in this clause and the information to be disclosed as stipulated in Article 24 of Decree No. 85/2013/ND-CP shall be published on the provincial People's Committee’s official website, and simultaneously sent to the Ministry of Justice to compile a consolidated list.

Article 9. Adjusting the list, revoking recognition of forensic experts and forensic organizations for specific cases

1. The adjustment of the list and the revocation of recognition of forensic experts and forensic organizations for specific cases shall be carried out in accordance with the provisions of Clause 3 and Clause 5 of Article 23 of Decree No. 85/2013/ND-CP (amended and supplemented by Clause 6 of Article 1 of Decree No. 157/2020/ND-CP dated December 31, 2020 of the Government amending and supplementing certain articles of Decree No. 85/2013/ND-CP).

2. The Legal Affairs Department shall organize the implementation of the adjustment of the list and the revocation of recognition of forensic experts and forensic organizations for specific cases based on the proposal of the Head of the subordinate units under the Ministry of Science and Technology.

3. The specialized agencies under the People's Committee of the province shall organize the implementation of the adjustment of the list and the revocation of recognition of forensic experts and forensic organizations for specific cases in scientific and technological activities according to their assigned tasks.

Chapter III

IMPLEMENTING FORENSIC EXPERTISE IN ACTIVITIES

SCIENTIFIC AND TECHNOLOGICAL

Article 10. Appointment of organizations and individuals to participate in forensic expertise in scientific and technological activities

1. At the Ministry of Science and Technology:

a) Upon receiving requests for forensic expertise, requests for forensic expertise, or proposals to introduce forensic organizations or forensic experts, the Legal Affairs Department shall take the lead and coordinate with relevant units to select qualified forensic experts or forensic organizations for specific cases with appropriate experience and expertise for the required forensic examination, propose the form of individual or collective forensic examination, and submit it to the Minister of Science and Technology for decision on the appointment of organizations or individuals to participate in forensic expertise;

b) In case subordinate units of the Ministry receive requests for forensic expertise or proposals to introduce forensic organizations or forensic experts, the Heads of these units shall be responsible for receiving them, assigning or submitting to the competent authority for assignment of organizations or individuals to conduct forensic expertise, and simultaneously notify the Legal Affairs Department for coordination.

2. At local levels:

Upon receiving requests for forensic expertise or proposals to introduce forensic organizations or forensic experts, the main agency on science and technology shall take the lead or coordinate with relevant agencies and units to implement according to their assigned tasks.

3. The Ministry of Science and Technology and the main agency on science and technology shall refuse forensic expertise in the following cases:

a) The content of the forensic expertise does not fall within their scope of administrative management;

b) Requests for forensic expertise do not belong to the fields specified in Article 3 of this Circular;

c) There are no organizations or individuals with sufficient capacity and necessary conditions to carry out the forensic expertise;

d) The objects of forensic expertise and related documents provided are incomplete or lack value for a forensic conclusion even after requesting the person making the request for forensic expertise to provide supplementary information or clarification but such requests are not met.

4. The appointment of organizations and individuals to participate in forensic expertise and the refusal of forensic expertise as stipulated in this Article must be done in writing and ensure compliance with the deadlines set forth in the requests for forensic expertise.

Article 11. Judicial Appraisal Procedure

The judicial appraisal in scientific and technological activities shall be carried out according to a process consisting of four steps (Annex 1 issued together with this Circular):

1. Receiving the object for appraisal and related documents and items (in cases where a record must be made, it shall be done according to Model No. 01, Model No. 02 at Annex 2 issued together with this Circular).

2. Preparing for the appraisal.

3. Conducting the appraisal.

4. Handing over the appraisal conclusion.

Article 12. Formation of the Judicial Appraisal Council in Scientific and Technological Activities

1. The Judicial Appraisal Council shall be established by the Minister of Science and Technology in accordance with the provisions stipulated in Article 30 of the Law on Judicial Appraisal.

2. Formation of the Judicial Appraisal Council:

a) The Legal Affairs Department shall take the lead and coordinate with relevant units to select appraisers, judicial appraisers by case, and experienced persons with appropriate expertise in the content to be appraised, complete the dossier to submit to the Minister of Science and Technology for decision to establish the Council.

b) The composition, number of members, and operational mechanism of the Judicial Appraisal Council shall be implemented in accordance with Article 30 of the Law on Judicial Appraisal.

Article 13. Basis for Implementing Judicial Appraisal, Costs, and Judicial Appraisal Stipends in Scientific and Technological Activities

1. Basis for implementing judicial appraisal in scientific and technological activities:

a) National standards and national technical regulations in the field of science and technology;

b) Technical measurement requirements;

c) Legal provisions on standardization and quality measurement fields;

d) Legal provisions on industrial property fields;

đ) Legal provisions on atomic energy fields;

e) Relevant legal documents concerning the content to be appraised.

2. Costs for judicial appraisal in scientific and technological activities shall be implemented in accordance with the provisions of Decree No. 02/2012/UBTVQH13 dated March 28, 2012 of the Standing Committee of the National Assembly on appraisal and valuation costs; costs for witnesses and interpreters in proceedings; detailed implementing regulations and other relevant legal provisions.

CThe stipend system for judicial appraisal in scientific and technological activities shall be implemented in accordance with Decision No. 01/2014/QĐ-TTg dated January 1, 2014 of the Government on the stipend system for judicial appraisal.

Article 14. Implementation of Judicial Appraisal in Scientific and Technological Activities

1. Judicial appraisers, case-based judicial appraisers, and case-based judicial appraisal organizations shall implement the appraisal as follows:

a) Draft an appraisal outline with the following basic contents: basis for implementing the appraisal as stipulated in Clause 1 of Article 13 of this Circular; estimated time to complete the appraisal; conditions prescribed by law to conduct the appraisal.

For case-based judicial appraisal organizations, in addition to the above contents, the organization's appraisal outline must include a list of personnel conducting the appraisal, the person assigned to head the appraisal, and information about the capabilities of the individuals conducting the appraisal.

b) In necessary cases, individuals or organizations conducting the appraisal may request the requesting party to survey the object to be appraised to serve the work of planning and conducting the appraisal, except where otherwise provided by law.

c) Collect information and documents related to the content to be appraised.

d) Conduct the appraisal.

đ) Build the appraisal conclusion in accordance with the guidance in this Circular.

2. In cases of changes to the individual or organization conducting the judicial appraisal, the head of the agency or unit appointing the individual or organization conducting the appraisal shall have the responsibility to notify the requesting party in writing.

3. During the implementation process, the appraiser must prepare a document recording the appraisal process according to Model No. 04 at Annex 2 issued together with this Circular.

4. Judicial appraisers, case-based judicial appraisers, and case-based judicial appraisal organizations when conducting judicial appraisal have the right to use supplementary experimental results, testing conclusions, or specialized conclusions from other individuals or organizations meeting the conditions and capabilities as stipulated in this Circular to serve the appraisal.

Article 15. Time limit for forensic examination

1. The maximum time limit for forensic examination in scientific and technological activities is three months. In cases where the examination involves new, complex equipment, machinery, or technology, or a large volume of work, the maximum time limit for examination is four months. This time limit may be extended according to the decision of the requesting agency but not exceeding half of the maximum examination period stipulated in this clause.

Forensic examination in scientific and technological activities that are mandatory shall be carried out in accordance with the provisions of the Criminal Procedure Law.

2. In cases where issues arise or there is a basis to believe that the examination cannot be completed within the prescribed time limit, the individual or organization conducting the examination must promptly notify in writing, clearly stating the reasons to the requesting party and the expected completion time, and issuing the examination conclusion.

Article 16. Conclusion of Judicial Appraisal

Forensic examiners, individuals conducting forensic examinations on specific cases, and organizations conducting forensic examinations on specific cases must prepare the examination conclusion according to Form Nos. 03a, 03b, 03c attached in Appendix 02 issued along with this Circular.

Article 17. Examination dossier for forensic examination

1. The forensic examination dossier includes all contents specified in Clause 1 of Article 33 of the Law on Forensic Examination.

2. Individuals and organizations conducting forensic examinations are responsible for the accuracy of the dossiers prepared and must present the forensic examination dossier when requested by judicial agencies or authorized personnel to resolve cases in accordance with the procedural law.

3. The forensic examination dossier of the examiner is handed over to the agency, unit, or organization directly managing it.

4. Agencies, units, or organizations under the Ministry of Science and Technology receiving the forensic examination dossier have the responsibility to preserve and store it in accordance with the law on archives and the archive management regulations of the Minister of Science and Technology.

Local agencies, units, or organizations receiving the forensic examination dossier have the responsibility to preserve and store it in accordance with the law on archives and the regulations of the provincial People's Committee or specialized agencies on science and technology.

Chapter IV

IMPLEMENTATION

Article 18. Responsibility for Implementation

1. The Legal Affairs Department shall take the lead and coordinate with relevant agencies and units to guide and inspect the implementation of this Circular.

2. Heads of relevant units under the Ministry of Science and Technology, Chairpersons of provincial People's Committees, heads of specialized agencies on science and technology, and related organizations and individuals are responsible for implementing this Circular.

Article 19. Implementation Provisions

1. This Circular takes effect from June 15, 2022, and replaces Circular No. 35/2014/TT-BKHCN dated December 11, 2014, of the Minister of Science and Technology on forensic examination in scientific and technological activities.

2. In case the legal normative documents cited in this Circular are amended, supplemented, or replaced by new legal normative documents, they shall be applied according to the new legal normative documents.

3. During the implementation of this Circular, if there are difficulties, please report to the Ministry of Science and Technology for consideration and resolution./.