What is judicial expertise? Rights and obligations of subjects in judicial expertise in Vietnam

What is judicial expertise? Rights and obligations of subjects in judicial expertise in Vietnam (Internet image)

1. What is judicial expertise?

Judicial expertise means an activity in which a judicial expert uses his/her knowledge, means, scientific, technical and professional methods to draw professional conclusions about matters related to the initiation of legal proceedings, investigation, prosecution, adjudication and enforcement and execution of criminal judgments, settlement of civil cases and administrative cases as solicited for by an authority or person having procedural jurisdiction or requested by an expertise petitioner under the provisions of the Law on Judicial Expertise 2012.

(Clause 1, Article 2 of the Law on Judicial Expertise 2012, as amended in 2020)

2. Rights and obligations of subjects in judicial expertise in Vietnam

2.1. Rights and obligations of judicial expertise solicitors in Vietnam

- Judicial expertise solicitors have the following rights:

+ To invite individuals or institutions defined in Clause 4, Article 2 of the Law on Judicial Expertise 2012 to perform expertise;

+ To request individuals or institutions defined at Point a, Clause 1 of Article 1 of the Law on Judicial Expertise 2012 to notify expertising conclusions strictly according to requested contents and time limit;

+ To request individuals or institutions that have performed judicial expertise to explain their expertising conclusions.

- The judicial expertise solicitor shall have the following obligations:

+ Clearly define the contents, fields or areas of specialization subject to the judicial expertise in the cases or matters under the resolution process; select individuals and organizations capable and qualified to conduct the judicial expertise in accordance with the nature and contents of the judicial expertise in order to issue the decision to solicit the judicial expertise;

+ Issue the written decision to solicit the judicial expertise;

+ Promptly and fully provide and take responsibility before law for information, documents and specimens related to subjects and contents of the judicial expertise at the request of individuals or organizations conducting the judicial expertise;

+ Make advance payments or payments of judicial expertise costs on time and in full;

+ Take or request competent authorities to apply measures prescribed by laws to protect judicial experts or their relatives if there are grounds for determining that life, health, reputation, dignity or property of theirs or their relatives’ is in danger owing to their implementation of judicial expertise or involvement in cases or matters in the name of a judicial expert.

(Article 21 of the Law on Judicial Expertise 2012, as amended in 2020)

2.2. Rights and obligations of judicial expertise requesters

- Expertise petitioners may request jurisdictional procedural authorities and persons in writing to solicit judicial expertise services.

If jurisdictional procedural authorities and persons reject these petitions for solicitation of judicial expertise services within 7 days of receipt of such petitions, they must inform petitioners in writing.

Upon expiration of the aforesaid time limit or upon receipt of the notice of rejection, petitioners for solicitation of judicial expertise services may petition for judicial expertise services in person.

- Expertise requesters have the following rights:

+ To request individual or institutional judicial expertise performers to notify expertising conclusions within the agreed time limit and according to the requested contents;

+ To request individual or institutional judicial expertise performers to explain their expertising conclusions;

+ To request courts to summon judicial expertise performers that have performed the expertise to participate in court hearings to explain or present expertising conclusions;

+ Petition jurisdictional procedural authorities and persons to solicit for the judicial expertise activity to be repeated; solicit the supplementary expertise service in accordance with clause 1 of Article 29 of the Law on Judicial Expertise 2012.

- Judicial expertise requesters have the following obligations:

+ To supply information and documents relevant to expertised objects at the request of judicial expertise performers and take responsibility for the accuracy of supplied information and documents;

+ To advance a judicial expertise charge when requesting expertise; to pay on time and in full the charge to individuals or institutions performing expertise upon receiving expertising conclusions.

- Expertise requesters may only request expertise by themselves before the courts issue decisions on first-instance trial of their cases.

(Article 22 of the Law on Judicial Expertise 2012, as amended in 2020)

2.3. Rights and obligations of judicial expertise performers when performing judicial expertise

- Judicial expertise performers have the following rights:

+ To select necessary and appropriate methods of performing expertise according to contents requested for expertise;

+ To use additional experimental or testing results or professional conclusions made by other institutions or individuals for their expertise;

+ To be independent in making expertising conclusions.

+ Petition the judicial expertise solicitor or the competent authority to take protective measures as prescribed by law if there is a sign that life, health, honor, dignity or property of the judicial expert himself/herself or his/her relatives is at risk due to his/her implementation of judicial expertise or participation in a case or matter in the name of a judicial expert;

+ Refuse to carry out the judicial expertise activity in cases prescribed in Clause 2 of Article 11 herein;

+ Take an appropriate seat while participating in the court process.

- Judicial expertise performers have the following obligations:

+ To comply with the principles of judicial expertise;

+ To perform expertise strictly according to contents requested for expertise;

+ To make and notify expertising conclusions within the requested time limit; in case of additional time needed for performance of expertise, promptly notify such to expertise solicitors or requesters;

+ To prepare expertise dossiers;

+ To preserve expertised samples and documents relevant to expertised cases or matters;

+ Not to notify expertising results to other parties, unless so agreed in writing by expertise solicitors or requesters;

+ To bear personal responsibility for their expertising conclusions. In case of intentionally making untruthful expertising conclusions, thus causing damage to individuals or institutions, to pay compensations for damage or refund expenses in accordance with law.

- In addition to the rights and obligations specified in Clauses 1 and 2 of this Article, judicial expertise performers have other rights and obligations provided by the law on procedure.

(Article 23 of the Law on Judicial Expertise 2012, as amended in 2020)

2.4. Rights and obligations of organizations solicited or requested for judicial expertise in Vietnam

- Organizations solicited or requested for judicial expertise shall assume the following rights:

+ Request the solicitor or petitioner for judicial expertise to promptly and fully provide information, documents and samples necessary for the judicial expertise;

+ Refuse to accept the judicial expertise solicitation or petition in cases where the subject matters of the contents of such solicitation or petition are irrelevant to the judicial expert’s professional scope, or the judicial expert does not fully meet qualification requirements or conditions necessary for the provision of judicial expertise service;

Information about the subject of judicial expertise and related documents are not provided in full or are invalid to help give judicial expert conclusions or testimonies after the solicitor or petitioner’s failure to make any requested modification thereof; the time length needed to conduct a judicial expertise activity is not adequate; the independence and objectivity of a judicial expertise activity are not assured;

+ Receive judicial expertise expenses paid in advance upon receipt of judicial expertise requests or solicitations; receive payments of judicial expertise costs and expenses on time and in full when notifying judicial expertise results.

- Organizations solicited or requested for judicial expertise shall assume the following obligations:

+ Within 05 working days of receipt of the solicitation or request for judicial expertise, assign their staff members with professional qualifications and skills relevant to the contents of the solicitation or request for judicial expertise, take responsibility for his or her professional competence and notify solicitors or petitioners for judicial expertise, except if laws prescribe a shorter duration.

Heads of organizations solicited or requested for judicial expertise shall direct and push the implementation of judicial expertise and, if at least 2 staff members are needed to perform judicial expertise tasks, shall assign a person responsible for coordinating the implementation of judicial expertise;

+ Ensure the provision of enough time, equipment, facilities and other conditions necessary for conducting the judicial expertise.

During the process of judicial expertise, if new contents or other problems arise, individuals or organizations conducting judicial expertise must immediately notify the solicitor or petitioner for judicial expertise to agree on the settlement plan;

+ Compensate for any loss or damage in case the person carrying out judicial expertise activities  that they have assigned intentionally makes a false expert conclusion or testimony, causing damage to any individual or organization;

+ In case of refusal to accept a solicitation or petition for judicial expertise, within 05 working days of receipt of the decision to solicit or petition for judicial expertise, it is obligatory to notify the solicitor or petitioner for judicial expertise in writing with clear reasons to be stated, except if laws prescribe a shorter duration;

+ Bear responsibility for any expert conclusion or testimony given on their own account.

(Article 24 of the Law on Judicial Expertise 2012, as amended in 2020)

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE