Circular No. 78-TT/BTP guiding the implementation of Decree No. 117-HĐBT of the Council of Ministers on judicial appraisal

CIRCULAR

Guidelines for Implementing Decree No. 117/HĐBT

of the Council of Ministers on Forensic Appraisal

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On July 21, 1988, the Council of Ministers issued Decree No. 117/HĐBT on Forensic Appraisal; to ensure consistent implementation; based on Article 12 of the Decree, the Ministry of Justice issues this Circular to guide certain aspects of organization and implementation as follows:

I. FORENSIC APPRAISAL WORK

It involves using scientific knowledge, methods, technical and specialized expertise to conclude on issues related to criminal, civil, marriage and family cases, labor disputes pursuant to requests from judicial proceedings bodies to serve investigative, prosecution, and adjudicative work.

In our country, forensic appraisal activities include: medical forensic appraisal, forensic psychiatric appraisal; criminal technical forensic appraisal; financial accounting forensic appraisal; literary and artistic works, cultural products forensic appraisal; forensic appraisal in various fields of science and technology. Only when the forensic appraisal activity of the appraiser is conducted according to the request of authorized judicial proceedings bodies can it be considered forensic appraisal.

II. ORGANIZATION OF FORENSIC APPRAISAL

1. Forensic appraisal organizations are established at the central level and provincial level.

a. At the central level, forensic appraisal organizations are established in the following specialized sectors:

Medical forensic appraisal organizations are established under the Ministry of Health, Ministry of Public Security, and Ministry of Defense; forensic psychiatric appraisal organizations are established under the Ministry of Health; criminal technical forensic appraisal organizations are established under the Ministry of Public Security; financial accounting forensic appraisal organizations are established under the Ministry of Finance; literary and artistic works, cultural products forensic appraisal organizations are established under the Ministry of Culture; forensic appraisal organizations in various fields of science and technology are established under the State Science and Technology Commission and relevant ministries. The establishment of forensic appraisal organizations in various fields of science and technology at relevant ministries requires agreement among the relevant ministry, the State Science and Technology Commission, and the Ministry of Justice.

In sectors without forensic appraisal organizations, when there is a request for forensic appraisal concerning matters related to their specialty, the head of the sector, the head of specialized services in the military at the central level, military region, service branch, and corps shall appoint personnel to carry out the appraisal request. If the request specifically names an appraiser, the sector head shall appoint that person to conduct the appraisal. Such appraisal activities are considered forensic appraisal activities.

b. At the provincial level (province, city, centrally-administered municipality), forensic appraisal organizations for medical forensic appraisal, forensic psychiatric appraisal, financial accounting forensic appraisal, and other specialized forensic appraisal organizations are established.

2. Each forensic appraisal organization must have at least three appraisers.

Based on the volume of forensic appraisal work and the capacity of the specialized scientific and technical staff in each sector and locality (provincial level), one or more forensic appraisal organizations may be established for a specific specialty (field).

3. Central-level forensic appraisal organizations conduct appraisals for cases initiated by central-level judicial proceedings bodies and complex cases requested by local judicial proceedings bodies.

Provincial-level forensic appraisal organizations conduct appraisals for cases requested by local and central judicial proceedings bodies.

When a forensic appraisal organization receives an appraisal request but finds the content exceeds its capability, it must promptly notify the requesting body (no later than 72 hours) from the time of receipt of the request: the notification must clearly state the reasons for refusing the appraisal request.

III. APPRASER AND HEAD APPRASER

1. Regarding the authority to appoint appraisers and head appraisers, Article 4 of Decree No. 117/HĐBT clearly states:

- At the central level, the heads of ministries and specialized sectors issue decisions to appoint appraisers and head appraisers of the forensic appraisal organizations under their ministries and sectors after obtaining the agreement of the Minister of Justice.

- At the provincial level, the Chairman of the People's Committee of the province examines and issues decisions to appoint appraisers and head appraisers of local forensic appraisal organizations upon the proposal of the heads of provincial specialized sectors and the Director of the Department of Justice.

2. The criteria for appraisers are stipulated in Article 5 of Decree No. 117/HĐBT:

a. Political quality: Appraisers must be individuals with good political qualities, ethics; honest, objective, brave enough to defend the correctness of scientific conclusions in their field; they must not have criminal records, have been administratively punished or disciplined with warnings or higher, and have no violations in their professional activities within the field they are appointed to.

b. Professional qualifications: Appraisers must hold a bachelor's degree or higher (graduated from a regular bachelor's program, part-time bachelor's program, self-study bachelor's program, postgraduate, and above) in the field corresponding to the field they are appointed to.

c. Years of experience in professional work: Individuals appointed as appraisers must have fairly high professional qualifications; they must have directly worked and researched in their field for at least five years.

For medical forensic appraisers under the Ministry of Health and localities, in addition to those who have graduated from forensic medicine, those who have graduated from a medical bachelor's program and have at least three years of direct involvement in forensic medicine and must be trained in basic forensic medicine knowledge can also be selected.

The selection of appraisers must fully consider all three criteria set forth in Decree No. 117/HĐBT so that forensic appraisers are truly professionals with good political qualities and specialized knowledge in specific scientific fields.

3. When conducting forensic appraisal, appraisers have duties and powers as prescribed in Articles 6, 7, and 8 of Decree No. 117/HĐBT and Clauses 2, 3, and 4 of Article 44 of the Criminal Procedure Code. Appraisers must comply with the assignments of the head appraiser.

4. Article 11 of Decree 117/CP stipulates the tasks and authorities of the head of forensic examination.

The head of forensic examination must first be a forensic examiner and simultaneously possess managerial capability and experience; when performing professional tasks and managing forensic examiners, the head of forensic examination must frequently coordinate with the direct head of the agency or unit where the forensic examiners work.

IV. MANAGEMENT OF FORENSIC EXAMINATION WORK

Article 12 of Decree 117/CP clearly states: "The Ministry of Justice uniformly manages forensic examination work; guides, monitors, and inspects forensic examination activities; and provides legal knowledge training for forensic examiners.

At local levels, the People's Committees of provinces, cities, and centrally governed municipalities under the central government uniformly manage forensic examination work. To assist the People's Committee and implement the delegation from the Minister of Justice, Directors of Departments of Justice conduct oversight, guidance, and inspection of forensic examination organizations within their jurisdiction. While managing forensic examination organizations, the Director of the Department of Justice closely coordinates with heads of specialized sectors; provides material and technical facilities for forensic examination organizations and ensures the regime and policies for forensic examiners, while regularly organizing legal knowledge training for forensic examiners.

V. IMPLEMENTATION

Forensic examination is a complex professional field requiring high scientific standards; therefore, to facilitate the implementation of the Government Decree on forensic examination work, strict guidance from agencies, sectors, and localities is necessary. The establishment of forensic examination organizations should be carried out promptly and with quality assurance to timely serve the enforcement of the Criminal Procedure Code.

At local levels, it is necessary to quickly establish forensic medical examination and financial accounting examination organizations. Localities with the conditions should establish forensic psychiatric examination organizations and gradually set up other specialized forensic examination organizations. Localities that already have forensic medical examination organizations must reorganize them according to Decree 117/CP and this Circular.

During the implementation of Decree 117/CP, if there are any difficulties, the heads of sectors at the central level and the People's Committees of localities directly report them in a timely manner to the Ministry of Justice.