Circular No. 33/2014/TT-BGTVT on forensic examination in the field of transport

CIRCULAR

Regulations on forensic examination in the field of transporti

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Pursuant to the Law on Forensic Examination dated June 20, 2012;

On the basis of the Ordinance on Costs for Legal Appraisals, Valuations; Costs for Witnesses and Interpreters in Litigation dated March 28, 2012;

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

Pursuant to Decree No. 107/2012/NĐ-CP dated December 20, 2012 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Transport;

At the request 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

1. THIS CIRCULAR REGULATES THE STANDARDS FOR APPOINTING COURT EXPERTS; ESTABLISHING AND ANNOUNCING THE LIST OF PERSONS TO PERFORM COURT EXPERTISE IN CASES; PROCEDURES FOR SELECTING PERSONS TO PARTICIPATE IN COURT EXPERTISE AND FORMING THE COURT EXPERT PANEL; APPLYING TECHNICAL STANDARDS IN COURT EXPERTISE ACTIVITIES IN THE FIELD OF TRANSPORTATION; AND COSTS FOR CONDUCTING COURT EXPERTISE IN THE FIELD OF TRANSPORTATION.

2. CONTENTS RELATED TO COURT EXPERTISE REGARDING THE CONSTRUCTION OF TRANSPORTATION INFRASTRUCTURE SHALL BE IMPLEMENTED IN ACCORDANCE WITH THE PROVISIONS OF THE MINISTRY OF CONSTRUCTION.

Article 2. Applicability

THIS CIRCULAR APPLIES TO OFFICERS, CIVIL SERVANTS, PUBLIC OFFICIALS, AND ORGANIZATIONS AND UNITS UNDER THE MINISTRY OF TRANSPORTATION, DEPARTMENTS OF TRANSPORTATION, AND OTHER ORGANIZATIONS AND INDIVIDUALS INVOLVED IN COURT EXPERTISE IN THE FIELD OF TRANSPORTATION.

Chapter II

STANDARDS FOR APPOINTING COURT EXPERTS; ESTABLISHING AND ANNOUNCING THE LIST

PERSONS TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION

ARTICLE 3. STANDARDS FOR APPOINTING COURT EXPERTS IN THE FIELD OF TRANSPORTATION

COURT EXPERTS IN THE FIELD OF TRANSPORTATION MUST MEET THE FOLLOWING STANDARDS:

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

2. HAVE A UNIVERSITY DEGREE OR HIGHER IN A SPECIALTY RELATED TO THE FIELD OF TRANSPORTATION.

3. HAVE AT LEAST FIVE YEARS OF PRACTICAL EXPERIENCE IN THE SPECIALTY AS SPECIFIED IN CLAUSE 2 OF THIS ARTICLE.

ARTICLE 4. STANDARDS FOR PERSONS TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION

1. VIETNAMESE CITIZENS RESIDENT IN VIETNAM WHO MEET THE FOLLOWING STANDARDS MAY BE SELECTED TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION:

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

b) HAVE A UNIVERSITY DEGREE OR HIGHER AND HAVE AT LEAST FIVE YEARS OF PRACTICAL EXPERIENCE IN THE FIELD OF TRAINING.

2. IN THE CASE OF PERSONS WITHOUT A UNIVERSITY DEGREE BUT WITH DEEP KNOWLEDGE AND SUBSTANTIAL PRACTICAL EXPERIENCE IN THE AREA TO BE EXPERTIZED, THEY MAY BE SELECTED TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION.

ARTICLE 5. PROCEDURES FOR ESTABLISHING AND ANNOUNCING THE LIST OF PERSONS TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION

THE PROCEDURE FOR ESTABLISHING AND ANNOUNCING THE LIST OF PERSONS TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION, WHICH FALLS UNDER THE MANAGEMENT AUTHORITY OF THE MINISTRY OF TRANSPORTATION, IS IMPLEMENTED AS FOLLOWS:

1. BEFORE NOVEMBER 1 EACH YEAR. THE LEGAL AFFAIRS DEPARTMENT WILL TAKE THE LEAD AND COOPERATE WITH THE HUMAN RESOURCES AND ORGANIZATION DEPARTMENT TO FORECAST THE NUMBER OF PERSONS TO PERFORM COURT EXPERTISE IN CASES TO BE SUBMITTED TO THE MINISTER FOR APPROVAL.

2. BASED ON THE FORECASTED NUMBER OF PERSONS TO PERFORM COURT EXPERTISE IN CASES THAT HAS BEEN APPROVED, THE HEADS OF ORGANIZATIONS AND UNITS UNDER THE MINISTRY WILL SELECT AND ESTABLISH THE LIST OF PERSONS TO PERFORM COURT EXPERTISE IN CASES TO BE SUBMITTED TO THE HUMAN RESOURCES AND ORGANIZATION DEPARTMENT BY NOVEMBER 30 EACH YEAR.

THE HUMAN RESOURCES AND ORGANIZATION DEPARTMENT WILL TAKE THE LEAD AND COOPERATE WITH THE LEGAL AFFAIRS DEPARTMENT TO FORECAST THE LIST OF PERSONS TO PERFORM COURT EXPERTISE IN CASES, TO BE SUBMITTED TO THE MINISTER FOR DECISION TO ANNOUNCE THE LIST OF PERSONS TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION.

3. THE HUMAN RESOURCES AND ORGANIZATION DEPARTMENT WILL SEND THE LIST ALONG WITH INFORMATION ABOUT THE SPECIALTY, EXPERIENCE, AND CAPABILITY OF PERSONS TO PERFORM COURT EXPERTISE IN CASES IN THE FIELD OF TRANSPORTATION TO THE INFORMATION TECHNOLOGY CENTER TO POST ON THE MINISTRY'S WEBSITE, AND SIMULTANEOUSLY SEND IT TO THE MINISTRY OF JUSTICE FOR COMBINED INTO THE GENERAL LIST AS PROVIDED.

THE INFORMATION TECHNOLOGY CENTER IS RESPONSIBLE FOR POSTING THE LIST WITHIN TWO WORKING DAYS FROM THE DATE OF RECEIPT.

Chapter III

PROCEDURES FOR SELECTING PERSONS TO PARTICIPATE IN COURT EXPERTISE AND FORMING

APPRAISAL COUNCIL

Article 6. Appointment of persons to participate in judicial appraisal

1. At the Ministry of Transport:

a) In cases where the Ministry of Transport receives a decision requesting an examination, a document requesting a judicial appraisal with content within the scope of management of the Ministry, the Legal Department shall take the lead and coordinate with the Cadre and Civil Servant Organization Department and the heads of relevant agencies and units to select a judicial appraiser suitable for the case according to the content of the request for examination and appraisal, propose the form of examination and appraisal, report to the Minister for decision on appointing the person to carry out the examination and appraisal and the form of examination and appraisal.

In cases where the request for examination and appraisal has content not within the scope of management of the Ministry of Transport, the Legal Department shall take the lead and coordinate with the Cadre and Civil Servant Organization Department to submit to the Minister for signing a document refusing the judicial appraisal and send it to the requesting agency or the requesting party.

b) In cases where agencies and units under the Ministry receive requests for examination and appraisal within their jurisdiction, the heads of these agencies and units are responsible for receiving and assigning persons to carry out the judicial appraisal.

2. At the Provincial Department of Transport:

The appointment of persons to participate in judicial appraisal shall be carried out in accordance with the regulations of the provincial People's Committee.

3. Persons assigned to carry out judicial appraisal shall be responsible for receiving the content of the request for examination and appraisal, organizing the implementation of the examination and appraisal, concluding on the examined contents, and responding to the requesting agency or the requesting party.

If the examination is refused due to the content requiring examination exceeding the professional capacity; the object of examination and related documents provided are insufficient or have no value for the conclusion of the examination; there is not enough time to conduct the examination or there are other legitimate reasons, then the refusal must be notified in writing to the requesting party and the reason must be clearly stated.

Article 7. Establishment of the Appraisal Board

1. The establishment of the Appraisal Board in the field of transport shall be carried out in cases where there is a difference between the initial examination conclusion and the re-examination conclusion on the same examination content.

2. The Appraisal Board in the field of transport shall be established by the Minister of Transport.

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

a) The Legal Department shall take the lead and coordinate with the Cadre and Civil Servant Organization Department to select a judicial appraiser suitable for the case according to the content of the request for examination, complete the file, and report to the Minister for decision on establishing the Appraisal Board.

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

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

Chapter IV

APPLICATION OF PROFESSIONAL STANDARDS IN APPRAISAL ACTIVITIES; JUDICIAL APPRAISAL FILES IN THE FIELD OF TRANSPORT

JUDICIAL; THE JUDICIAL REVIEW FILE IN THE FIELD OF TRANSPORTATION

Article 8. Application of professional standards in judicial appraisal activities in the field of transport

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

Article 9. Acceptance of requests for examination and appraisal and objects of examination

1. The handover and receipt of files, objects of requests for examination and appraisal must be recorded in a protocol according to the model specified in Appendix I of this Circular and must be carried out in accordance with Article 27 of the Law on Judicial Appraisal. Only valid requests for examination and appraisal that are correct in terms of the subject matter and the requesting party will be accepted.

2. When accepting objects for examination, 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 involve the person conducting the examination, 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 participating parties and witnesses according to the model specified in Appendix II of this Circular.

3. For invalid requests for examination and appraisal, individuals or organizations requested to conduct the examination and appraisal must return the document to the requesting agency or individual and specify the reason.

4. Upon completion of the examination, individuals or organizations conducting the examination are responsible for returning the object of examination to the requesting agency or individual, except where otherwise provided by law.

Article 10. Judicial Appraisal File

1. The judicial appraisal file shall be established by the person conducting the judicial appraisal and shall include: The request decision, the appraisal request document; handover and receipt records for the file, the objects subject to the request, and the appraisal requirements; documentation recording the entire process of conducting the appraisal; the appraisal conclusion and other related documents pertaining to the entire appraisal process.

2. The judicial appraisal conclusion, the handover record of the judicial appraisal conclusion, and the document recording the entire process of conducting the appraisal shall be carried out according to the models prescribed in Appendices III, IV, and V of this Circular.

Article 11. Costs of Implementing 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 12. Effective Date

This Circular takes effect from September 30, 2014.

Article 13. Implementation Organization

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 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 Heads of Bureaus under the Ministry, the Directors of Provincial Departments of Transport, the Heads of agencies, units, and individuals related to this Circular are responsible for its implementation./.