Decree No. 26/2005/ND-CP on the Appraisal Board for Assets in Criminal Proceedings

DECREE OF THE GOVERNMENT

Regarding the Asset Valuation Council in Criminal Proceedings

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Criminal Procedure Code dated November 26, 2003;

At the proposal of the Minister of Justice,

DECREE:

PART I
GENERAL PROVISIONS

Article 1. Scope of application

This Decree stipulates on the establishment, rights, obligations, and procedures for asset valuation by the Asset Valuation Council at the request of competent authorities conducting criminal proceedings with the aim of serving to resolve issues related to assets in criminal proceedings.

Article 2. Principles of asset valuation

1. In accordance with market prices at the time and place where the assets were infringed upon.

2. Truthful, objective, transparent, and timely.

Article 3. Responsibilities of organizations and individuals in asset valuation activities

Authorities and organizations have the responsibility to send representatives to participate in the Asset Valuation Council when requested. Individuals appointed to participate in the Asset Valuation Council have the responsibility to carry out asset valuation according to this Decree's provisions.

Other relevant organizations and individuals have the responsibility to create conditions for the Asset Valuation Council to conduct asset valuation according to this Decree and other relevant legal regulations.

Article 4. Legal value of the asset valuation conclusion

The asset valuation conclusion of the Asset Valuation Council prescribed in this Decree is one of the grounds for competent authorities conducting criminal proceedings to consider and resolve issues related to assets in criminal proceedings.

PART II
ASSET VALUATION COUNCIL

Article 5. Establishment of the Asset Valuation Council

1. The Asset Valuation Council is established at the central level, at the provincial level, and at the district level.

2. The Asset Valuation Council at the provincial and district levels is established by the Chairman of the People's Committee at the provincial and district levels, respectively, upon the proposal of the financial authority at the same level to value various types of assets at the request of competent authorities conducting criminal proceedings.

3. The Asset Valuation Council at the central level is established by the Minister of Finance to perform the valuation of assets with particularly high value and to revalue assets in cases specified in Clause 2, Article 21 of this Decree.

Article 6. Composition of the Asset Valuation Council

1. The composition of the Asset Valuation Council at the provincial and district levels includes:

a) A leader from the financial authority as the Chairperson of the Council;

b) A price specialist from the financial authority as a permanent member of the Council;

c) Representatives from specialized agencies as members of the Council. Based on the asset valuation requirements of competent authorities conducting criminal proceedings, the Chairperson of the Asset Valuation Council decides on specific members for each case.

2. The composition of the Asset Valuation Council at the central level includes:

a) A leader from the Ministry of Finance as the Chairperson of the Council;

b) A leader from the specialized unit on pricing within the Ministry of Finance as a permanent member of the Council;

c) Representatives from specialized agencies as members of the Council. Based on the asset valuation requirements of competent authorities conducting criminal proceedings, the Chairperson of the Asset Valuation Council decides on specific members for each case.

3. The minimum number of members of the Asset Valuation Council is three people.

Article 7. Special circumstances for the Asset Valuation Council

1. In special cases due to the nature of the case or the need to ensure confidentiality, competent authorities conducting criminal proceedings may decide to establish an Asset Valuation Council specifically for that case.

2. Competent authorities conducting criminal proceedings may choose themselves or propose the financial authority to introduce individuals with expertise and experience in the type of asset to be valued as members of the Council.

3. The decision to establish the Asset Valuation Council as provided in Clause 1 of this Article shall include the following main contents:

a) Name of the authority establishing the Council;

b) Name and position of the Chairperson of the Asset Valuation Council and its members;

c) Rights and obligations of the Council;

d) Information about the assets to be valued;

đ) Content of the valuation request;

e) Time to receive the valuation result.

4. The Asset Valuation Council as provided in Clause 1 of this Article ceases operations after completing the tasks specified in the Council establishment decision.

Article 8. Rights and Obligations of the Asset Valuation Council

1. The Asset Valuation Council has the right:

a) To request competent authorities conducting criminal proceedings to provide existing documents and information related to the assets to be valued;

b) To request other relevant organizations and individuals to provide necessary information and documents for asset valuation;

c) To refuse to value assets if the provided documents and information are incomplete or for other legitimate reasons;

d) Other rights as prescribed by law.

2. The Asset Valuation Council has the obligation:

a) To comply with the principles, procedures, and processes of asset valuation prescribed in this Decree;

b) To complete asset valuation within the required timeframe; in cases requiring additional time for valuation, they must promptly notify the requesting authority;

c) To accurately determine the value of the assets to be valued and bear responsibility for the valuation conclusion.

d) Other obligations as prescribed by law.

Article 9. Rights and Obligations of Members of the Asset Valuation Council

1. Members of the Asset Valuation Council have the right:

a) To make assessments and evaluations of the assets to be valued;

b) To vote to determine the value of the assets;

c) To receive material allowances when participating in asset valuation;

d) Other rights as prescribed by law.

2. Members of the Asset Valuation Council have the obligation:

a) To comply with the principles, procedures, and processes of asset valuation prescribed in this Decree;

b) To attend meetings of the Asset Valuation Council when requested;

c) To be responsible for their valuation opinions;

d) To refuse to join the Asset Valuation Council if they fall under any of the circumstances specified in Article 10 of this Decree;

đ) Other obligations as prescribed by law.

Article 10. Situations Where Participation in the Asset Valuation Council Is Prohibited

Persons falling under any of the following circumstances shall not be allowed to participate in the Asset Valuation Council:

1. Have conducted proceedings as an Investigator, Prosecutor, Judge, Associate Judge, Court Clerk, or participated as a defense counsel, witness, or interpreter in that case;

2. Are simultaneously a victim, civil plaintiff, civil defendant; a person with rights and obligations related to the case; a legal representative, relative of those persons, or a suspect, defendant in the case;

3. Be requested to participate in the Asset Valuation Council for assets that they have previously valued.

4. There are clear grounds to believe that such person may not be impartial when conducting the valuation.

CHAPTER III
PROCEDURE AND PROCEDURES FOR ASSET VALUATION

Article 11. Request for asset valuation

1. The request for asset valuation must be made in writing. The written request for asset valuation shall include the following main contents:

a) Name of the authority requesting the valuation;

b) Name of the Asset Valuation Council being requested;

c) Information about the asset to be valued;

d) Content of the valuation request;

đ) Time to receive the valuation result.

2. In case of requesting a revaluation of the asset, the request document must clearly state that it is a revaluation request.

Article 12. Acceptance of asset valuation requests

1. The written request for asset valuation is sent to the Chairman of the Asset Valuation Council.

2. The Chairman of the Asset Valuation Council is responsible for accepting the written request for asset valuation and selecting individuals with specialized knowledge and experience in the type of asset to be valued, in accordance with this Decree.

Article 13. Basis for asset valuation

Asset valuation must be based on the following bases:

1. Market price at the time and place where the asset was infringed upon; 18. Market price at the time and place where the asset was infringed upon;

2. Price set by competent state agencies;

3. Price on documents and files accompanying the asset to be valued, if any;

4. Actual value of the asset to be valued;

5. Other bases regarding the value of the asset to be valued.

Article 14. Inspection of assets, study of information and documents related to the asset to be valued

The competent authority conducting litigation that requests asset valuation is responsible for organizing the Asset Valuation Council to inspect the asset or sample asset and study relevant information and documents concerning the asset to be valued.

Article 15. Price survey

The Asset Valuation Council conducts price surveys through the following methods:

1. Conducting market price surveys according to wholesale or retail prices for similar new assets with a quality of one hundred percent;

2. Studying the asset pricing list prescribed by competent state agencies to be implemented locally;

3. Referring to prices on documents and files accompanying the asset to be valued.

Article 16. Asset Valuation Session

1. The asset valuation session can only be held when all members of the Asset Valuation Council are present. The Chairman of the Asset Valuation Council chairs the asset valuation session.

2. Each member of the Asset Valuation Council expresses their opinion on the value of the asset based on determining the remaining quality percentage of the asset compared to a similar new asset with a quality of one hundred percent.

3. The Asset Valuation Council decides on the asset's value by majority vote. In case of a tie, the Chairman's vote will be decisive.. In case of disagreement with the asset value decided by the Council, the Council member has the right to reserve their opinion; that opinion is recorded in the asset valuation minutes.

4. Representatives of the competent authority conducting litigation that requests asset valuation, representatives of the parties involved, and persons with rights and interests related to the asset to be valued may attend the asset valuation session and express opinions on the valuation, but they do not have the right to vote on the asset's value.

Article 17. Minutes of Asset Valuation

1. The Asset Valuation Council must prepare minutes of the asset valuation. The minutes of asset valuation must promptly, fully, and truthfully record the entire asset valuation process.

2. The minutes of asset valuation must include the following main contents:

a) Name and title of the Chairman of the Asset Valuation Council and other members of the Council;

b) Names of those attending the asset valuation session;

c) Time and location of the asset valuation;

d) Results of the price survey of the asset;

đ) Opinions of the members of the Asset Valuation Council and those attending the asset valuation session;

e) Voting results of the Asset Valuation Council on the asset's value;

g) Time and location of completion of the asset valuation;

h) Signatures of the members of the Asset Valuation Council.

3. The minutes of asset valuation must be kept in the asset valuation file.

Article 18. Conclusion of Asset Valuation

1. The conclusion of asset valuation must be documented in writing and include the following main contents:

a) Name of the competent authority conducting litigation that requests asset valuation;

b) The Asset Valuation Council requested; name and title of the Chairman of the Asset Valuation Council and other members of the Council;

c) Number of the request document for asset valuation or decision to establish the Asset Valuation Council as stipulated in Article 7 of this Decree;

d) Date of receipt of the request document for asset valuation or decision to establish the Asset Valuation Council as stipulated in Article 7 of this Decree;

đ) Name of the asset to be valued;

e) Information and documents related to the asset to be valued;

g) Conclusion on the asset's value;

h) Time and location of completion of the asset valuation.

2. The conclusion of asset valuation must be signed by all members of the Asset Valuation Council and must be kept in the asset valuation file.

3. The conclusion of asset valuation and the minutes of asset valuation are sent to the competent authority conducting litigation that requests asset valuation.

Article 19. Asset Valuation File

1. The asset valuation file is prepared by the Asset Valuation Council and includes the following documents:

a) Request document for asset valuation or decision to establish the Asset Valuation Council as stipulated in Article 7 of this Decree;

b) Minutes of asset valuation;

c) Conclusion of asset valuation;

d) Other documents related to the asset valuation.

2. The financial authority is responsible for preserving and keeping the asset valuation file. The asset valuation file must be kept for at least thirty years from the date of completion of the valuation, unless otherwise provided by law.

Article 20. Asset Valuation in Case of Loss or Non-existence of the Asset

1. In case the asset to be valued is lost or does not exist, the asset valuation shall be conducted based on the asset's file, based on collected information and documents related to the asset to be valued.

2. The valuation of assets as stipulated in Clause 1 of this Article must comply with the procedures and valuation processes for assets prescribed in Articles 11, 12, 13, 15, 16, 17, 18, and 19 of this Decree.

Article 21. Revaluation of Assets

1. The revaluation of part or all of the assets shall be carried out upon the request of the competent authority conducting criminal proceedings when there is suspicion about the results of the valuation or contradictions between the conclusions of valuations regarding the value of the assets to be valued. The revaluation must be conducted by the higher-level Valuation Council.

2. In cases where there are contradictions between the initial valuation conclusion and the revaluation conclusion regarding the value of the assets to be valued, the second revaluation must be conducted by the Central Valuation Council as prescribed in Clause 3 of Article 5 of this Decree. The conclusion of the Central Valuation Council is the final conclusion.

3. The revaluation of assets shall be conducted according to the general procedures prescribed in this Decree.

Article 22. Costs of Asset Valuation

1. The competent authority conducting criminal proceedings that requests asset valuation shall be responsible for paying the costs of asset valuation to the Valuation Council. The costs of asset valuation shall be taken from the state budget, based on the annual budget of the competent authority conducting criminal proceedings.

2. The Ministry of Finance shall provide detailed regulations on the costs of asset valuation.

PART IV
VIOLATION HANDLING AND COMPLAINTS, REPORTING

Article 23. Handling Violations

1. Members of the Asset Valuation Council who fail to fulfill their responsibilities or intentionally violate the provisions of this Decree shall be subject to disciplinary action, administrative penalties, or criminal responsibility depending on the nature and severity of the violation; if damage is caused, they must compensate according to the law.

2. Organizations that commit violations of the provisions of this Decree shall be subject to administrative penalties according to the law depending on the nature and severity of the violation.

Individuals who commit violations of the provisions of this Decree shall be subject to disciplinary action, administrative penalties, or criminal responsibility according to the law depending on the nature and severity of the violation.

Article 24. Petitioning and Reporting

1. In cases where a party to the proceedings has grounds to believe that the asset valuation conclusion is inaccurate, not objective, causing damage to their legitimate rights and interests, they have the right to request the competent authority conducting criminal proceedings or the person conducting the proceedings to require a revaluation of the assets.

Within seven days from the date of receipt of the request, the competent authority conducting criminal proceedings or the person conducting the proceedings must decide to accept or reject the request for revaluation; in case of rejection, they must notify the reason in writing to the requester.

In cases where the requester disagrees with the refusal of the revaluation request by the investigating agency, they have the right to appeal to the same-level People's Procuratorate. Within fifteen days from the date of receipt of the appeal, the same-level People's Procuratorate must examine and resolve the appeal. The decision to resolve the appeal of the same-level People's Procuratorate is the final decision.

In cases where the requester disagrees with the refusal of the revaluation request by the People's Procuratorate or the Court, they have the right to appeal to the superior People's Procuratorate or the superior Court directly above. Within fifteen days from the date of receipt of the appeal, the superior People's Procuratorate or the superior Court must examine and resolve the appeal. The decision to resolve the appeal of the superior People's Procuratorate or the superior Court is the final decision.

The request and implementation of revaluation shall be carried out in accordance with the provisions of criminal procedure law and this Decree.

3. Individuals have the right to report to the competent state authorities about violations of the provisions of this Decree.

The resolution of complaints shall be carried out in accordance with the provisions of the law on complaints and reports.

CHAPTER V
IMPLEMENTING PROVISIONS

Article 25. Effectiveness

This Decree shall take effect fifteen days after its publication in the Official Gazette.

Article 26. Responsibility for Implementation

1. The Ministry of Finance shall be responsible for leading and coordinating with the Ministry of Justice and relevant agencies to guide the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of People's Committees of provinces and centrally governed cities shall be responsible for implementing this Decree./.