Circular No. 30/2016/TT-BCT on forensic appraisal activities in the field of industry and trade

CIRCULAR

REGULATIONS ON LEGAL APPRAISAL IN THE FIELD OF TRADE AND INDUSTRY

                              

Pursuant to the Law on Legal Appraisal 2012

Pursuant to Decree No. 95/2012/NĐ-CP dated November 12, 2012, of the Government, detailing the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government Decree No. 85/2013/NĐ-CP dated July 29, 2013 detailing and guiding the implementation of the Forensic Appraisal Law;

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 promulgates this Circular stipulating activities of legal appraisal in the field of trade and industry.

Article 1. Scope of Regulation

2. Legal appraisal activities related to construction investment in the field of trade and industry shall be carried out in accordance with the regulations of the Ministry of Construction.

This Circular applies to officials, civil servants, and employees in the trade and industry sector and other organizations and individuals involved in legal appraisal activities in the field of trade and industry.

Article 3. Standards for Appointment of Legal Appraisers in the Field of Trade and Industry

Legal appraisers in the field of trade and industry must meet the following standards:

1. They must be Vietnamese citizens residing in Vietnam, in good health, and of good moral character.

2. They must hold a bachelor's degree or equivalent or higher.

4. They must express a willingness to be appointed as a legal appraiser.

Article 4. Standards for Individuals Conducting Legal Appraisals on a Case-by-Case Basis in the Field of Trade and Industry

1. Vietnamese citizens residing in Vietnam who meet the following criteria may be selected to conduct legal appraisals on a case-by-case basis in the field of trade and industry:

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

b) Hold a bachelor's degree or equivalent or higher;

2. In cases where individuals do not hold a bachelor's degree but possess deep knowledge and extensive practical experience in the relevant field, they may be selected to conduct legal appraisals on a case-by-case basis in the field of trade and industry.

a) Based on functions, tasks, and standards prescribed in Article 3 of this Circular, the head of the agency or unit under the Ministry selects legal appraisers and prepares one file to propose the appointment of legal appraisers to the Department of Organization and Cadre Affairs;

b) The Director of the Department of Organization and Cadre Affairs, in conjunction with the Director of the Department of Legal Affairs, examines the file and submits it to the Minister of Industry and Trade for decision on the appointment of legal appraisers.

2. Procedures for appointing judicial forensic experts at the local level:

The Director of the Department of Industry and Trade cooperates with the Director of the Department of Justice to select individuals meeting the standards prescribed in Article 3 of this Circular, prepare a file to propose the appointment of legal appraisers to the Chairman of the People's Committee of the province.

3. The time limit for examination and appointment of legal appraisers shall be implemented in accordance with Article 9 of the Law on Legal Appraisal.

Article 6. Documents for Nomination of Judicial Appraisers

2. The documents specified in Clauses 1, 2, and 3 of Article 8 of the Law on Judicial Appraisal.

Article 7. Removal of Judicial Appraisers

1. Cases of removal, documents for requesting removal of judicial appraisers, and the deadline for resolving removal shall be carried out according to the provisions of Clause 1, Clause 2, and Clause 4 of Article 10 of the Law on Judicial Appraisal.

The Head of the Personnel Organization Department shall take the lead, coordinate with the Legal Affairs Department to review the documents, and submit them to the Minister of Industry and Trade for consideration and decision on the removal of judicial appraisers within the Ministry of Industry and Trade.

3. The Director of the Department of Industry and Trade shall consult with the Director of the Department of Justice, prepare the documents for requesting the Chairman of the People's Committee of the province to consider and decide on the removal of judicial appraisers at the local level.

4. The procedure and time limit for removing judicial appraisers shall be implemented according to the provisions of Clause 4 of Article 10 of the Law on Judicial Appraisal.

Article 8. Establishment and Publication of Lists of Judicial Appraisers, Case-by-case Judicial Appraisers, and Case-by-case Judicial Appraisal Organizations in the Field of Industry and Trade

1. Establishment and Publication of Lists of Judicial Appraisers

Within five working days from the date of the appointment decision, the Personnel Organization Department shall cooperate with the Legal Affairs Department and related units to establish and send the list of judicial appraisers to the E-commerce and Information Technology Department to publish on the Ministry of Industry and Trade’s online portal, and simultaneously send it to the Ministry of Justice to compile a general list.

The E-commerce and Information Technology Department shall be responsible for publishing the list of judicial appraisers on the Ministry of Industry and Trade’s online portal within three working days from the date of receipt of the list.

b) For judicial appraisers appointed by the Chairman of the Provincial People's Committee:

Within five working days from the date of the appointment decision, the Department of Industry and Trade shall be responsible for establishing and sending the list of judicial appraisers to the Department of Justice and publishing it on the Provincial People's Committee’s online portal.

2. Establishment and publication of list of case-specific judicial appraisers and case-specific judicial appraisal organizations

The Personnel Organization Department shall send the lists of case-by-case judicial appraisers and case-by-case judicial appraisal organizations along with information about the appraisal specialty, experience, and capability of case-by-case judicial appraisers and case-by-case judicial appraisal organizations to the E-commerce and Information Technology Department for publication on the Ministry of Industry and Trade’s online portal, and simultaneously send it to the Ministry of Justice to compile a general list as prescribed.

b) The Department of Industry and Trade shall be responsible for assisting the Chairman of the Provincial People's Committee to establish and publish lists of case-by-case judicial appraisers and case-by-case judicial appraisal organizations in the field of industry and trade under the local management authority, and send them to the Department of Justice and publish them on the Provincial People's Committee’s online portal.

Article 9. Appointment of persons to participate in judicial appraisal according to cases

a) In case the Ministry of Industry and Trade receives a decision requesting judicial appraisal, or a document requesting judicial appraisal with content within the scope of management of the Ministry of Industry and Trade, the Cadre and Civil Service Department shall take the lead, coordinate with the Legal Department and the heads of relevant agencies and units to select persons suitable for judicial appraisal according to the case in accordance with the content of the request for judicial appraisal, propose the form of judicial appraisal, submit to the Minister for decision on appointing persons to carry out judicial appraisal and the form of judicial appraisal for the requested contents within ten working days from the date of receipt of the request.

b) In case agencies and units under the Ministry receive requests for judicial appraisal within their jurisdiction, the heads of these agencies and units are responsible for receiving and assigning persons to carry out judicial appraisal according to the case within seven working days from the date of receipt of the request.

2. At Provincial Departments of Industry and Trade:

The appointment of persons to participate in judicial appraisal according to cases shall be carried out in accordance with the regulations of the People's Committee at the provincial level and the Law on Judicial Appraisal.

3. Persons assigned to carry out judicial appraisal according to the case have the responsibility to receive the content of the request for judicial appraisal, organize the implementation of the appraisal, conclude on the appraisal contents, and respond to the requesting agency.

5. Cases where judicial appraisal is not conducted shall comply with the provisions of Article 34 of the Law on Judicial Appraisal.

Article 10. Organization of judicial appraisal according to cases in the field of industry and trade

1. Organizations conducting judicial appraisal according to cases in the field of industry and trade must meet the following conditions:

a) Having legal personality;

b) Engaging in specialized activities consistent with the content requested for judicial appraisal;

c) Having conditions regarding professional staff, facilities, and equipment to ensure the implementation of judicial appraisal.

2. Organizations conducting judicial appraisal according to cases in the field of industry and trade shall carry out appraisals according to requests for judicial appraisal in accordance with the provisions of the Law on Judicial Appraisal.

Article 11. Establishment of the Appraisal Board

1. The establishment of an Appraisal Board in the field of industry and trade shall be carried out in cases where there are differences between the initial appraisal conclusion and the re-appraisal conclusion on the same appraisal content.

2. The Appraisal Board in the field of industry and trade shall be established by the Minister of Industry and Trade.

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

b) The Appraisal Board shall have at least three members who are highly qualified and reputable in the field requiring appraisal;

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

Article 12. Application of professional standards and technical regulations in forensic activities in the industry and trade sector

1. Professional standards and technical regulations applicable to forensic activities in the industry and trade sector are national technical standards and standards applied in the industry and trade sector.

2. For areas without professional standards and technical regulations, forensic activities shall be based on relevant valid normative legal documents.

Article 13. Acceptance of Forensic Requests, Requirements, and Objects for Appraisal

1. The handover of files and objects for forensic requests and requirements must be recorded in a protocol according to the model specified in Appendix I of this Circular and carried out in accordance with Article 27 of the Law on Forensic Appraisal. Only valid forensic requests and requirements matching the requested object shall be accepted.

2. When accepting objects for appraisal, related documents, or comparison samples sent along (if any) in sealed condition, the seal must be checked before opening. The process of opening the seal must have the presence of the appraiser, the requesting party, and the witness (if any). All information and events related to the opening process must be recorded in the protocol and confirmed by signatures of all participating parties and witnesses according to the model specified in Appendix II of this Circular.

4. Upon completion of the appraisal, the individual or organization conducting the appraisal has the responsibility to return the object of appraisal to the requesting agency or person, except where otherwise provided by law.

1. The rights and obligations of the requesting party for appraisal comply with the provisions of Article 21 of the Law on Forensic Appraisal.

2. The rights and obligations of the party requesting appraisal comply with the provisions of Article 22 of the Law on Forensic Appraisal.

3. The rights and obligations of the forensic appraiser when conducting forensic appraisal comply with the provisions of Articles 11 and 23 of the Law on Forensic Appraisal.

4. The rights and obligations of the forensic appraisal organization when being requested for forensic appraisal comply with the provisions of Article 24 of the Law on Forensic Appraisal.

Article 15. Appraisal Conclusion

1. The organization or individual conducting the appraisal shall establish the forensic appraisal conclusion in accordance with Clause 1 of Article 32 of the Law on Forensic Appraisal and deliver the appraisal conclusion to the requesting party within the required time limit.

2. The forensic appraisal conclusion must ensure truthfulness, accuracy, and objectivity. In cases where the appraisal result is false and causes damage to individuals or organizations, compensation and restitution must also be provided in accordance with the law.

3. The forensic appraisal conclusion must bear the signature of the appraiser or the head of the organization conducting the appraisal in accordance with Clause 2 of Article 32 of the Law on Forensic Appraisal.

4. The forensic appraisal conclusion, the handover protocol of the forensic appraisal conclusion, and the document recording the entire process of conducting the appraisal shall be prepared according to the models specified in Appendices III, IV, and V of this Circular.

Article 16. Judicial Appraisal File

1. The judicial appraisal file shall be established by the person conducting the judicial appraisal and shall include: Decision on requesting appraisal, request for appraisal document; handover and receipt record of the file, objects subject to appraisal request; document recording the process of conducting the appraisal; appraisal conclusion and other related documents throughout the entire appraisal activity.

Article 17. Costs for Conducting Judicial Appraisal, Judicial Appraiser Subsidy System in the Field of Industry and Trade

1. The costs for judicial appraisal in the field of industry and trade shall be implemented in accordance with the provisions of Ordinance 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.

2. The system of subsidies for judicial appraisers in the field of industry and trade shall be implemented in accordance with the provisions of Article 25 of Decree No. 85/2013/NĐ-CP dated July 29, 2013 of the Government detailing and guiding the implementation of the Law on Judicial Appraisal.

Article 18. Effective Date

This Circular takes effect from February 3, 2017.

1. The Legal Affairs Department shall take the lead and coordinate with the Cadre and Civil Servant Organization Department to guide and inspect the implementation of this Circular by agencies and units under the Ministry.

2. The Legal Affairs Department shall cooperate with the Ministry of Justice and relevant agencies and organizations to organize training and professional development for judicial appraisers in the field of industry and trade.

3. The Director of the Ministry's Office, the Inspector General of the Ministry, the Heads of Departments under the Ministry, the Directors of the Energy Administration, the Heads of Bureaus under the Ministry, the Directors of Institutes directly under the Ministry, the Directors of Provincial Departments of Industry and Trade, the Heads of agencies and units and individuals concerned shall be responsible for enforcing this Circular./.