Circular No. 07/2021/TT-BGTVT on forensic examination in the field of transport

CIRCULAR

Regulations on forensic examination in the field of transporti

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

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

Pursuant to Decree No. 12/2017/NĐ-CP dated February 10, 2017, issued by the Government on the functions, tasks, powers, and organizational structure of the Ministry of Transport;

At the proposal of the Director of the Legal Department;

The Minister of Transport hereby issues this Circular on forensic examination in the field of transport.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates standards, files, procedures for appointing forensic examiners; standards and conditions for individuals and organizations conducting forensic examinations on a case-by-case basis; recognition and publication of lists of individuals and organizations conducting forensic examinations on a case-by-case basis in the field of transport; selection of individuals and organizations conducting forensic examinations; forensic examination procedures; deadlines for forensic examinations and application of technical regulations and standards in forensic examination activities in the field of transport.

Article 2. Applicability

This Circular applies to organizations and individuals related to forensic examination activities in the field of transport.

Chapter II

STANDARDS, FILES, PROCEDURES FOR APPOINTING FORENSIC EXAMINERS; STANDARDS AND CONDITIONS FOR INDIVIDUALS AND ORGANIZATIONS CONDUCTING FORENSIC EXAMINATIONS ON A CASE-BY-CASE BASIS IN THE FIELD OF TRANSPORT; RECOGNITION AND PUBLICATION OF LISTS OF INDIVIDUALS AND ORGANIZATIONS CONDUCTING FORENSIC EXAMINATIONS ON A CASE-BY-CASE BASIS IN THE FIELD OF TRANSPORT

Article 3. Standards for appointing forensic examiners

Vietnamese citizens residing permanently in Vietnam who meet the standards prescribed in Clause 1, Article 7 of the Law on Forensic Examination 2012 and who do not fall under the cases prescribed in Clause 2, Article 7 of the Law on Forensic Examination 2012 shall be considered for appointment as forensic examiners in the field of transport.

Article 4. Files, procedures, and processes for appointing forensic examiners and issuing forensic examiner cards

1. The file for requesting the appointment of a forensic examiner shall be implemented in accordance with the provisions of Article 8 of the Law on Forensic Examination 2012 (amended and supplemented by Clause 4, Article 1 of the Law Amending and Supplementing Certain Provisions of the Law on Forensic Examination 2020).

2. Procedures and processes for appointing forensic examiners at the Ministry of Transport:

a) The head of the agency or unit directly under the Ministry selects individuals meeting the standards prescribed in Article 3 of this Circular, prepares one (01) file for requesting the appointment of a forensic examiner in accordance with the provisions of Clause 1 of this Article, and sends it to the Department of Organization and Cadres.

b) The Department of Organization and Cadres takes the lead, in coordination with the Legal Affairs Department, examines the file, selects, and submits to the Minister for decision on the appointment of a forensic examiner within twenty days from the date of receipt of a valid file. In the event of refusal to appoint, the Department of Organization and Cadres replies in writing and specifies the reasons to the agency or unit requesting the appointment of a forensic examiner.

c) Based on the decision to appoint a forensic examiner, the Department of Organization and Cadres prepares and sends the list of forensic examiners to the Information Technology Center for publication on the Ministry's electronic portal, while simultaneously sending it to the Ministry of Justice for consolidation into the common list as prescribed.

d) The Information Technology Center is responsible for publishing the aforementioned list within two working days from the date of receipt of the list.

3. Procedures and processes for appointing forensic examiners at the local level:

The Director of the Department of Transport or the Director of the Department of Transport and Construction takes the lead, in coordination with the Director of the Department of Justice, selects individuals meeting the standards prescribed in Article 3 of this Circular, prepares the file in accordance with the provisions of Clause 1 of this Article, and submits it to the Chairman of the People's Committee of the province or centrally-administered city (hereinafter referred to as provincial level) for the appointment of a forensic examiner. The list of forensic examiners is published on the electronic portal of the provincial-level People's Committee, while simultaneously being sent to the Ministry of Justice for consolidation into the common list as prescribed.

4. Issuance of forensic examiner cards:

a) Individuals appointed as forensic examiners in accordance with Clause 2 and Clause 3 of this Article shall be issued forensic examiner cards in the field of transport;

b) The authority to appoint forensic examiners as prescribed in Clause 2 and Clause 3 of this Article has the authority to issue new and replacement forensic examiner cards in the field of transport;

c) The format of the card, procedures, and processes for issuing new and replacement forensic examiner cards shall be carried out in accordance with the provisions of the Minister of Justice.

Article 5. Dismissal of Judicial Appraisers

1. The cases for dismissal and the dossier for proposing the dismissal of judicial appraisers shall be implemented in accordance with the provisions of Clause 1 and Clause 2, Article 10 of the Law on Judicial Appraisal 2012 (amended and supplemented by Clause 6, Article 1 of the Law Amending and Supplementing Certain Provisions of the Law on Judicial Appraisal 2020).

2. Procedure and formalities for dismissing judicial appraisers at the Ministry of Transport:

a) The head of the agency or unit under the Ministry shall review and prepare the dossier for proposing the dismissal of judicial appraisers in accordance with the provisions of Clause 1 of this Article and submit it to the Department of Organization and Cadres.

b) Within ten days from the date of receipt of a valid dossier, the Department of Organization and Cadres shall take the lead and coordinate with the Department of Legal Affairs to examine the dossier, report to the Minister of Transport for the decision to dismiss the judicial appraiser, revoke the judicial appraiser's card, adjust the list of judicial appraisers, and send it to the Information Technology Center to publish on the Ministry’s website, while sending it to the Ministry of Justice to adjust the general list of judicial appraisers.

3. Procedure and formalities for dismissing judicial appraisers at the local level:

The Director of the Department of Transport or the Director of the Department of Transport - Construction shall take the lead and coordinate with the Director of the Department of Justice to compile the list and submit it to the Chairman of the Provincial People's Committee for the decision to dismiss the judicial appraiser, revoke the judicial appraiser's card at the local level. The adjusted list of judicial appraisers shall be published on the provincial people's committee's website and sent to the Ministry of Justice to adjust the general list according to regulations.

Article 6. Standards for Persons Engaged in Judicial Appraisal on a Case-by-Case Basis

A Vietnamese citizen residing in Vietnam who meets the standards stipulated in Article 18 of the Law on Judicial Appraisal 2012 may be considered and selected as a person engaged in judicial appraisal on a case-by-case basis in the field of transport.

Article 7. Organization of Judicial Appraisal on a Case-by-Case Basis

An organization conducting judicial appraisal on a case-by-case basis in the field of transport must meet the following conditions:

1. Having legal personality.

2. Engaging in specialized activities appropriate to the content requested for appraisal.

3. Ensuring requirements regarding specialized staff, material facilities, equipment, and means for conducting judicial appraisal.

Article 8. Recognition and Publication of Lists of Persons Engaged in Judicial Appraisal on a Case-by-Case Basis and Organizations Conducting Judicial Appraisal on a Case-by-Case Basis in the Field of Transport

1. Establishment and recognition of lists of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis at the Ministry of Transport:

a) The heads of agencies and units under the Ministry, based on the standards for persons engaged in judicial appraisal on a case-by-case basis and the conditions for organizations conducting judicial appraisal on a case-by-case basis as stipulated in Articles 6 and 7 of this Circular, shall be responsible for selecting and compiling lists of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis and submitting them to the Department of Organization and Cadres.

b) The Department of Organization and Cadres shall take the lead and coordinate with the Department of Legal Affairs to examine and report to the Minister for the decision to recognize the lists of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis.

c) The Department of Organization and Cadres shall send the list along with information about the appraisal specialty, experience, and professional capacity of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis in the field of transport to the Information Technology Center for publication on the Ministry’s website, while sending it to the Ministry of Justice to establish a general list according to regulations.

d) The Information Technology Center shall be responsible for publishing the aforementioned list within two working days from the date of receipt of the list.

2. Establishment and recognition of lists of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis at the local level:

The Department of Transport or the Department of Transport - Construction shall be responsible for selecting and compiling lists of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis within their jurisdiction and submitting them to the Chairman of the Provincial People's Committee for recognition of the lists of persons engaged in judicial appraisal on a case-by-case basis and organizations conducting judicial appraisal on a case-by-case basis, and publication on the provincial people's committee’s website, while sending it to the Ministry of Justice to establish a general list.

Chapter III

SELECTION OF INDIVIDUALS AND ORGANIZATIONS FOR JUDICIAL APPRAISAL, PROCEDURE FOR JUDICIAL APPRAISAL, AND TIME LIMIT FOR JUDICIAL APPRAISAL IN THE FIELD OF TRANSPORT

Article 9. Selection of Individuals and Organizations for Judicial Appraisal

The competent authority conducting criminal proceedings, or the person authorized to conduct criminal proceedings (hereinafter referred to as the requesting party) shall select individuals or organizations for judicial appraisal in the field of transportation from the list published according to this Circular, in accordance with the nature and requirements of the case requiring appraisal.

In the event that the Ministry of Transport receives a request for judicial appraisal from the requesting party, the head of the ministry's advisory agency assigned to lead the handling of the request shall draft a document to be sent to the requesting party to implement in accordance with Clause 1 of this Article and Article 20 of the Law on Judicial Appraisal 2012 (amended and supplemented by Clause 10 of Article 1 of the Law Amending and Supplementing Certain Provisions of the Law on Judicial Appraisal 2020).

Article 10. Procedure for Judicial Appraisal

1. Acceptance of Request and Object of Appraisal:

a) Individuals and organizations requested for appraisal shall be responsible for accepting the request for appraisal along with the dossier and object of appraisal to carry out the appraisal, except in cases where they have the right to refuse the appraisal or cannot perform the judicial appraisal as prescribed in the Law on Judicial Appraisal 2012 and the Law Amending and Supplementing Certain Provisions of the Law on Judicial Appraisal 2020.

b) The handover and receipt of the dossier and object of appraisal must be recorded in a protocol according to the model attached at Appendix I of this Circular and carried out in accordance with Article 27 of the Law on Judicial Appraisal 2012. Only valid requests for appraisal that match the objects requested will be accepted.

c) When receiving the object to be appraised, related documents, or comparison samples enclosed (if any) in sealed condition, the seal must be checked before opening. The process of opening the seal must be attended by the person conducting the appraisal, the requesting party, and the witness (if any). All information and events related to the process of opening the seal must be recorded in the protocol and confirmed by signatures of all parties involved and witnessed according to the model attached at Appendix II of this Circular.

2. Preparation for Appraisal:

a) The organization requested for appraisal shall assign persons with appropriate expertise and professional skills based on the dossier of the request to carry out the appraisal; designate a person responsible for coordinating the implementation of the judicial appraisal when more than two people are required to handle the appraisal case; issue a Decision to Conduct Judicial Appraisal according to the model attached at Appendix III of this Circular.

b) Individuals and organizations requested for appraisal shall study the dossier of the request and specific regulations of relevant laws to prepare for the judicial appraisal. If further clarification is needed regarding the content of the request for appraisal or the object of appraisal, they may request additional information or related documents from the requesting party.

c) If necessary, individuals and organizations requested for judicial appraisal may organize testing results or other specialized conclusions before making an evaluation.

3. Implementation of Appraisal:

a) The organization or individual requested for appraisal shall examine the object of appraisal and related documents to carry out the appraisal in accordance with the content of the request.

b) The person conducting the judicial appraisal shall promptly, fully, and truthfully record the entire process of the appraisal and the results of the appraisal in writing, which shall be kept in the appraisal file.

The record of the process of implementing the appraisal shall be made according to the model attached at Appendix IV of this Circular.

4. Conclusion of Appraisal:

Based on the results of the judicial appraisal, testing results, or other specialized conclusions (if any), and relevant legal provisions, the organization or individual requested for appraisal shall draw a conclusion of the appraisal. The conclusion of the appraisal shall be implemented in accordance with Article 32 of the Law on Judicial Appraisal 2021 (amended and supplemented by Clause 18 of Article 1 of the Law Amending and Supplementing Certain Provisions of the Law on Judicial Appraisal 2020) and according to the model attached at Appendix V of this Circular.

5. Handover of Appraisal Conclusion:

The organization or individual requested for appraisal shall be responsible for handing over the Appraisal Conclusion to the requesting party. The handover protocol of the Appraisal Conclusion shall be made according to the model attached at Appendix VI of this Circular.

6. Establishment and Preservation of Appraisal File:

a) The judicial appraisal file shall be established by the person conducting the judicial appraisal, including: The request for judicial appraisal and accompanying documents (if any); the protocol of handover and receipt of the dossier and object of appraisal; the record of the process of implementing the appraisal; Photographic evidence of the appraisal (if any); previous appraisal conclusions or testing, experimental results of the appraisal conducted by others (if any); the appraisal conclusion and other related documents covering the entire process of the appraisal activity.

b) The organization requested for and conducting the judicial appraisal shall be responsible for preserving and storing the judicial appraisal file of the appraisal conducted by its judicial appraiser in accordance with legal provisions on storage.

Article 11. Supplementary appraisal, re-appraisal

Supplementary appraisal and re-appraisal shall be carried out in accordance with the provisions of Article 29 of the Judicial Appraisal Law 2012.

Article 12. Establishment of the Appraisal Council

1. The establishment of the Appraisal Council in the field of transportation shall be implemented in cases where there are differences between the initial appraisal conclusion and the re-appraisal conclusion on the same subject matter, and at the request of the party requesting the appraisal.

2. The Appraisal Council shall be established by the Minister of Transport to conduct the second re-appraisal.

3. The establishment of the Appraisal Council shall be carried out as follows:

a) The head of the agency entrusted with the main responsibility for handling the judicial appraisal request shall advise the leadership of the Ministry to issue a document to relevant agencies and units to nominate persons suitable for conducting judicial appraisals in accordance with the content of the request to join the Appraisal Council. Based on the nomination documents from these agencies and units, the agency entrusted with the main responsibility for handling the judicial appraisal request shall review and submit to the Minister for a decision to establish the Appraisal Council;

b) The Appraisal Council shall have at least three members who are highly qualified and reputable in the relevant field.

c) The Appraisal Council shall operate under the collective appraisal mechanism as stipulated in Clause 3 of Article 28 of the Judicial Appraisal Law 2012.

Article 13. Time limit for appraisal

1. The maximum time limit for judicial appraisal in the field of transportation is three months. In cases where the appraisal matter is complex or involves a large volume of work, the maximum time limit for appraisal is four months. This time limit may be extended by the decision of the requesting agency but not exceeding half of the maximum time limit prescribed herein.

2. In case of arising issues or if it is deemed that the appraisal cannot be completed within the time limit, the individual or organization conducting the appraisal must promptly notify in writing to the requesting party, clearly stating the reasons and the expected completion date and issuance of the appraisal conclusion.

Chapter IV

APPLICATION OF PROFESSIONAL STANDARDS IN JUDICIAL APPRAISAL ACTIVITIES AND COSTS FOR JUDICIAL APPRAISAL IN THE FIELD OF TRANSPORTATION

Article 14. Application of professional standards in judicial appraisal activities in the field of transportation

Professional standards applicable to judicial appraisal activities in the field of transportation include national technical regulations and standards applied in the field of transportation.

Article 15. Costs for conducting judicial appraisal in the field of transportation

Costs for conducting judicial appraisal in the field of transportation shall be implemented in accordance with the laws on costs for judicial appraisal.

Chapter V

IMPLEMENTATION

Article 16. Effective Date

1. This Circular takes effect from June 1, 2021. The Circular No. 33/2014/TT-BGTVT dated August 8, 2014 of the Minister of Transport on judicial appraisal in the field of transportation is hereby repealed.

2. Individuals and organizations conducting judicial appraisals in specific cases appointed and announced before this Circular takes effect, if they still meet the criteria and conditions, shall continue to be individuals and organizations conducting judicial appraisals in specific cases in the field of transportation according to the decisions already announced.

Article 17. Implementation Organization

The Director of the Ministry's Office, the Inspector General of the Ministry, the Heads of Departments under the Ministry, the Directors of the Vietnam Highway Administration, the Directors of the Departments under the Ministry, the Directors of Provincial Departments of Transportation, the Directors of Provincial Departments of Transportation and Construction, the Presidents of the Institute of Strategy and Development of Transportation, the Presidents of the Institute of Science and Technology of Transportation, the Heads of agencies and units and related individuals are responsible for implementing this Circular./.