Circular No. 35/2014/TT-BKHCN on forensic examination in scientific and technological activities

CIRCULAR

Regulations on forensic examination in scientific and technological activities

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BASED ON THE JUDICIAL APPRAISAL LAW dated June 20, 2012;

Pursuant to Decree No. 20/2013/NĐ-CP dated February 26, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

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

At the proposal of the Director of the Legal Department;

THE MINISTER OF SCIENCE AND TECHNOLOGY ISSUES THE CIRCULAR REGULATING JUDICIAL APPRAISAL IN SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

THIS CIRCULAR REGULATES THE STANDARDS, PROCEDURES FOR APPOINTING AND REMOVING JUDICIAL APPRAISERS; ESTABLISHING AND ANNOUNCING THE LIST OF JUDICIAL APPRAISERS, PERSONS PERFORMING JUDICIAL APPRAISALS BY CASE, AND ORGANIZATIONS PERFORMING JUDICIAL APPRAISALS BY CASE; IMPLEMENTING JUDICIAL APPRAISALS IN SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES.

Article 2. Applicability

1. OFFICERS, CIVIL SERVANTS, AND PROFESSIONAL STAFF UNDER THE MINISTRY OF SCIENCE AND TECHNOLOGY, DEPARTMENT OF SCIENCE AND TECHNOLOGY.

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;

1. JUDICIAL APPRAISALS IN SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES AS PROVIDED FOR IN THIS CIRCULAR INCLUDE JUDICIAL APPRAISALS IN THE FOLLOWING FIELDS: STANDARDS, TECHNICAL REGULATIONS, MEASUREMENT, PRODUCT QUALITY; TECHNOLOGY, EQUIPMENT, MACHINERY; NUCLEAR ENERGY.

2. ISSUES RELATED TO JUDICIAL APPRAISALS REGARDING INDUSTRIAL PROPERTY SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF THE FOLLOWING DOCUMENTS:

a) CIRCULAR NO. 01/2008/TT-BKHCN dated February 25, 2008, ISSUED BY THE MINISTER OF SCIENCE AND TECHNOLOGY GUIDING THE ISSUE AND REVOCATION OF INDUSTRIAL PROPERTY APPRAISER CARDS AND CERTIFICATES OF ORGANIZATIONS ELIGIBLE FOR INDUSTRIAL PROPERTY APPRAISAL ACTIVITIES;

b) CIRCULAR NO. 04/2009/TT-BKHCN dated March 27, 2009, ISSUED BY THE MINISTER OF SCIENCE AND TECHNOLOGY AMENDING AND SUPPLEMENTING CIRCULAR NO. 01/2008/TT-BKHCN dated February 25, 2008, GUIDING THE ISSUE AND REVOCATION OF INDUSTRIAL PROPERTY APPRAISER CARDS AND CERTIFICATES OF ORGANIZATIONS ELIGIBLE FOR INDUSTRIAL PROPERTY APPRAISAL ACTIVITIES;

c) CIRCULAR NO. 18/2011/TT-BKHCN dated July 22, 2011, ISSUED BY THE MINISTER OF SCIENCE AND TECHNOLOGY AMENDING AND SUPPLEMENTING SOME PROVISIONS OF CIRCULAR NO. 01/2007/TT-BKHCN dated February 14, 2007, AMENDED AND COMPLEMENTED BY CIRCULAR NO. 13/2010/TT-BKHCN dated July 31, 2010, AND CIRCULAR NO. 01/2008/TT-BKHCN dated February 25, 2008, AMENDED AND COMPLEMENTED BY CIRCULAR NO. 04/2009/TT-BKHCN dated March 27, 2009;

d) CIRCULAR NO. 04/2012/TT-BKHCN dated February 13, 2012, ISSUED BY THE MINISTER OF SCIENCE AND TECHNOLOGY AMENDING AND SUPPLEMENTING SOME PROVISIONS OF CIRCULAR NO. 01/2008/TT-BKHCN dated February 25, 2008, GUIDING THE ISSUE AND REVOCATION OF INDUSTRIAL PROPERTY APPRAISER CARDS AND CERTIFICATES OF ORGANIZATIONS ELIGIBLE FOR INDUSTRIAL PROPERTY APPRAISAL ACTIVITIES, AMENDED AND COMPLEMENTED BY CIRCULAR NO. 04/2009/TT-BKHCN dated March 27, 2009, AND CIRCULAR NO. 18/2011/TT-BKHCN dated July 22, 2011.

Chapter II

APPOINTMENT AND REMOVAL OF JUDICIAL APPRAISERS; ESTABLISHING AND ANNOUNCING THE LIST OF JUDICIAL APPRAISERS, PERSONS PERFORMING JUDICIAL APPRAISALS BY CASE, AND ORGANIZATIONS PERFORMING JUDICIAL APPRAISALS BY CASE IN SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES

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

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:

b) ARE CURRENTLY BEING PROSECUTED FOR CRIMINAL RESPONSIBILITY; HAVE BEEN CONVICTED BUT NOT YET STRICKEN FROM THE CRIMINAL RECORD FOR CRIMES OF NEGLIGENCE OR LESS SERIOUS CRIMES OF INTENTION; HAVE BEEN CONVICTED FOR SERIOUS, VERY SERIOUS, OR ESPECIALLY SERIOUS CRIMES OF INTENTION.

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

3. IN ADDITION TO THE PROVISIONS OF CLAUSE 1 AND CLAUSE 2 OF THIS ARTICLE, JUDICIAL APPRAISERS IN THE FIELD OF TECHNOLOGY, EQUIPMENT, MACHINERY, AND NUCLEAR ENERGY MUST HAVE A GRADUATE OR POSTGRADUATE DEGREE IN ONE OF THE FOLLOWING FIELDS:

a) ENGINEERING FOR JUDICIAL APPRAISALS IN THE FIELD OF TECHNOLOGY, EQUIPMENT, MACHINERY;

b) ONE OF THE FIELDS OF NUCLEAR PHYSICS, NUCLEAR TECHNOLOGY, RADIOCHEMISTRY FOR JUDICIAL APPRAISALS IN THE FIELD OF NUCLEAR ENERGY.

Article 5. Criteria for selecting judicial experts in scientific and technological activities on a case-by-case basis

A judicial expert in scientific and technological activities on a case-by-case basis must be a Vietnamese citizen residing in Vietnam, meeting the requirements stipulated in Clause 1 or Clause 2 of Article 18 of the Judicial Expert Law and not falling under any of the cases specified in Clause 2 of Article 4 of this Circular.

Article 6. Procedures for appointing judicial experts in scientific and technological activities

1. Procedures for appointing judicial experts at the Ministry of Science and Technology:

a) The head of the agency or unit directly under the Ministry selects individuals who meet the criteria set forth in Article 4 of this Circular, prepares one (1) set of application documents for the appointment of judicial experts, and submits them to the Department of Legal Affairs of the Ministry of Science and Technology (hereinafter referred to as the Department of Legal Affairs).

b) The Department of Legal Affairs examines the documents, selects candidates, and submits them to the Minister of Science and Technology for decision on the appointment of judicial experts.

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

The Department of Science and Technology takes the lead and coordinates with the Department of Justice to select individuals who meet the criteria set forth in Article 4 of this Circular, receives applications for the appointment of judicial experts according to the provisions of Article 7 of this Circular, and submits them to the Chairman of the Provincial People's Committee for decision on the appointment of judicial experts.

Article 7. Application Documents for the Appointment of Judicial Experts in Activities science and technology

1. Official letter requesting the appointment of a judicial expert from the head of the unit.

2. A copy of the graduation certificate at the bachelor level or higher relevant to the specialized field for which the appointment is requested.

3. Curriculum vitae and Judicial Background Certificate.

4. Certificate confirming the actual time spent working in the specialized field where the person being appointed works.

Article 8. Dismissal of Judicial Experts in Activities science and technology

1. Cases of dismissal and procedures for submitting applications for the dismissal of judicial experts shall be carried out in accordance with the provisions of Clause 1 and Clause 2 of Article 10 of the Judicial Expert Law.

2. The head of the agency or unit directly under the Ministry of Science and Technology prepares the application for the dismissal of judicial experts and submits it to the Department of Legal Affairs.

The Department of Legal Affairs reviews the documents and submits them to the Minister of Science and Technology for consideration and decision on the dismissal of judicial experts within the Ministry of Science and Technology.

3. The Department of Science and Technology agrees with the Department of Justice, prepares the application for the Chairman of the Provincial People's Committee to consider and decide on the dismissal of judicial experts in the locality.

Article 9. Establishment and Publication of Lists of Judicial Experts, Case-by-Case Judicial Experts, and Case-by-Case Judicial Expert Organizations in Scientific and Technological Activities

1. Establishment and publication of list of judicial appraisers:

a) The Department of Legal Affairs establishes and sends the list of judicial experts to the Information Center under the Ministry of Science and Technology (hereinafter referred to as the Information Center) to publish on the Ministry of Science and Technology's electronic portal, and simultaneously sends it to the Ministry of Justice to establish a consolidated list.

Within three (3) working days from the date of receipt of the list, the Information Center is responsible for publishing the list of judicial experts on the Ministry of Science and Technology's electronic portal.

b) For judicial experts appointed by the Chairman of the Provincial People's Committee, the Department of Science and Technology is responsible for establishing and sending the list of judicial experts to publish on the Provincial People's Committee's electronic portal, and simultaneously sends it to the Ministry of Justice to establish a consolidated list.

2. Establishment and Publication of Lists of Case-by-Case Judicial Experts and Case-by-Case Judicial Expert Organizations:

a) Annually, the heads of agencies and units directly under the Ministry of Science and Technology select and prepare lists of case-by-case judicial experts and case-by-case judicial expert organizations to submit to the Department of Legal Affairs before October 20 for consolidation and submission to the leadership of the Ministry of Science and Technology for decision on the publication of lists of case-by-case judicial experts and case-by-case judicial expert organizations under their jurisdiction.

The Department of Legal Affairs sends the list along with information about the publication of case-by-case judicial experts and case-by-case judicial expert organizations to the Information Center for publication on the Ministry's electronic portal in accordance with Articles 23 and 24 of Decree No. 85/2013/ND-CP dated July 29, 2013 of the Government detailing and implementing the Judicial Expert Law, and simultaneously sends it to the Ministry of Justice to establish a consolidated list.

b) For case-by-case judicial experts and case-by-case judicial expert organizations under the jurisdiction of the Department of Science and Technology, annually, the Department of Science and Technology is responsible for preparing and sending the list along with information about the publication of case-by-case judicial experts and case-by-case judicial expert organizations for publication on the Provincial People's Committee's electronic portal in accordance with Articles 23 and 24 of Decree No. 85/2013/ND-CP dated July 29, 2013 of the Government detailing and implementing the Judicial Expert Law, and simultaneously sends it to the Ministry of Justice to establish a consolidated list.

Chapter III

IMPLEMENTING FORENSIC EXPERTISE IN ACTIVITIES

 SCIENCE AND TECHNOLOGY

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 judicial expertise, requests for judicial expertise, or requests for introduction of organizations or individuals for judicial expertise, the Department of Legal Affairs leads and coordinates with relevant agencies and units to select judicial experts, case-by-case judicial experts, and case-by-case judicial expert organizations with experience and expertise matching the content requiring expertise, proposes the form of individual or collective expertise, and submits it to the Minister of Science and Technology for decision on dispatching organizations or individuals to participate in judicial expertise.

In cases where the content of the expertise does not fall within the scope of management of the Ministry of Science and Technology, the Department of Legal Affairs leads and coordinates with the Department of Organization and Cadres under the Ministry of Science and Technology (hereinafter referred to as the Department of Organization and Cadres) to submit to the leadership of the Ministry of Science and Technology regarding the refusal of judicial expertise and response to the requestor.

b) In cases where agencies and units under the Ministry receive requests for judicial expertise or requests for introduction of organizations or individuals for judicial expertise, the head of the agency or unit is responsible for accepting the requests for judicial expertise and submitting them to the Department of Legal Affairs for processing in accordance with Point a of this Clause.

2. At the Department of Science and Technology:

a) When receiving a request for judicial appraisal or a proposal to introduce organizations or individuals for judicial appraisal, the Department of Science and Technology shall take the lead in coordinating with relevant agencies and units to select judicial appraisers, individual judicial appraisers, or organizations conducting judicial appraisals according to the case, having experience and expertise suitable for the content to be appraised; decide on the form of appraisal, whether it will be individual or collective; appoint organizations or individuals to participate in judicial appraisal.

b) In cases where the content of the appraisal does not fall within the scope of management of the Department of Science and Technology, the Department of Science and Technology shall have the responsibility to respond in writing to the person requesting the judicial appraisal regarding the refusal of the judicial appraisal.

Article 11. Establishment 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 set forth 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 in coordinating with the Personnel Organization Department to select judicial appraisers, individual judicial appraisers, or persons with experience and expertise suitable for the content to be appraised, complete the dossier, and submit it to the Minister of Science and Technology for decision on establishing 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 12. Acceptance of objects for appraisal and related documents and items

1. Organizations or individuals assigned to conduct judicial appraisals shall be responsible for accepting objects for appraisal and related documents and items (if any). If they recognize that they lack the capacity to appraise the assigned contents, the organizations or individuals assigned to conduct judicial appraisals must refuse in writing. The refusal letter shall be sent to the person assigning the task and the requesting agency.

2. In cases where the request for judicial appraisal includes objects for appraisal and related documents and items, when transferring or receiving them, a transfer and receipt record must be established containing all the required information as stipulated in Clause 2 of Article 27 of the Law on Judicial Appraisal and Model No. 01 attached to this Circular.

3. The transfer and acceptance of objects for appraisal and related documents and items (if any) shall be carried out as follows:

a) In cases of direct transfer and acceptance, it must be conducted at the office of the judicial appraiser, individual judicial appraiser, or organization conducting judicial appraisals according to the case, or at the office of the person requesting the judicial appraisal.

b) In cases where sealed objects for appraisal are sent through postal services, before opening, the seal must be carefully checked. When opening the seal, a record of opening the seal must be established according to Model No. 02 attached to this Circular. If the seal is found to be torn or shows signs of being tampered with, the organization or individual requesting or requiring the appraisal has the right to refuse acceptance and note it in the record of opening the seal.

Article 13. Application of professional standards, costs of judicial appraisal, and remuneration system for judicial appraisal in judicial appraisal activities in scientific and technological activities

1. Judicial appraisal in scientific and technological activities shall be based on national technical standards, national technical regulations, local technical regulations in the field of science and technology, and related legal normative documents concerning the content to be appraised.

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

The remuneration system for judicial appraisal in scientific and technological activities shall be implemented in accordance with Decision No. 01/2014/QD-TTg dated January 1, 2014 of the Prime Minister on the remuneration 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 the outline of the appraisal with the following basic contents: determine the professional standards, legal provisions expected to be applied during the appraisal process as stipulated in this Circular; the estimated time to complete the appraisal; conditions prescribed by law for conducting the appraisal.

For organizations conducting judicial appraisals according to the case, in addition to the above contents, the outline of the appraisal of the organization must include a list of personnel conducting the appraisal, the person assigned to lead the appraisal, and information about the capabilities of the individuals conducting the appraisal.

b) If necessary, the individual or organization conducting the appraisal may request the person requesting or requiring the appraisal to survey the object of the appraisal to serve the work of planning and conducting the appraisal, except in cases where the law provides otherwise.

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

d) Conduct the appraisal.

d) Develop the conclusion of the appraisal according to the guidance provided in Article 15 of this Circular.

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

3. During the process, the appraiser must establish a document recording the process of conducting the appraisal according to Model No. 04 attached to this Circular.

4. Judicial appraisers, individual judicial appraisers, or organizations conducting judicial appraisals according to the case, when conducting judicial appraisals, have the right to use the results of supplementary experiments, tests, or professional conclusions made by other individuals or organizations with appropriate qualifications and capabilities as stipulated in this Circular to serve the appraisal process.

Article 15. Judicial Appraisal Conclusion

1. Judicial appraisers, persons conducting judicial appraisals on specific cases, and organizations conducting judicial appraisals on specific cases must prepare the appraisal conclusion according to Model Nos. 03a, 03b, 03c attached as an appendix to this Circular.

2. The signature of the person conducting the appraisal in the case of being requested or required to conduct the appraisal shall be certified in accordance with Clause 2 of Article 32 of the Judicial Appraisal Law.

Article 16. Judicial Appraisal File

1. The judicial appraisal file must be prepared according to a unified model and include all contents prescribed in Clause 1 of Article 33 of the Judicial Appraisal Law.

2. Individuals and organizations conducting judicial appraisals are responsible for the accuracy of the files they prepare and must present the judicial appraisal file when requested by investigative agencies or authorized personnel to resolve cases in accordance with the provisions of procedural laws.

Chapter IV

IMPLEMENTATION

Article 17. Responsibility for Implementation

1. The Legal Affairs Department shall take the lead and coordinate with the Cadres and Civil Servants Organization Department to guide and inspect the implementation of this Circular.

2. Heads of departments and units under the Ministry of Science and Technology, Chairpersons of People's Committees of provinces and centrally governed cities, Directors of Science and Technology Departments of provinces and centrally governed cities, and related organizations and individuals are responsible for implementing this Circular.

Article 18. Effective Date

1. This Circular takes effect from January 26, 2015.

2. In the event that the legal normative documents cited in this Circular are amended, supplemented, or replaced by new legal normative documents, they shall be applied in accordance with 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./.