Thông tư 12/2015/TT-BKHDT

CIRCULAR

GUIDANCE ON PROFESSIONAL REGULATION FOR JUDICIAL EXPERTISE ACTIVITIES; PROCEDURES FOR APPOINTMENT OF JUDICIAL EXPERTISE PARTICIPANTS AND ESTABLISHMENT OF JUDICIAL EXPERTISE COUNCIL IN THE FIELD OF PLANNING AND INVESTMENT

Pursuant to the Law on Judicial expertise dated June 20, 2012;

Pursuant to Decree No. 85/2013/ND-CP dated July 29, 2013 by the Government stipulating details and measures to implement the Law on Judicial expertise;

Pursuant to the Decree No. 116/2008/ND-CP dated November 14, 2008 by the Government defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

At the request of Director of Legal Department,

The Minister of Planning and Investment promulgates Circular providing guidance on professional regulation for judicial expertise activities; procedures for appointment of judicial expertise participants and establishment of Judicial expertise council in the field of planning and investment.

Article 1. Scope of regulation and regulated entities

1. This Circular provides for professional regulation for judicial expertise activities; receipt of judicial expertise solicitations/requests; judicial expertise dossier/conclusion; procedures for appointment of judicial expertise participants and establishment of Judicial expertise council in the field of planning and investment.

2. This Circular applies to any organizations/individuals relevant to judicial expertise in the field of planning and investment.

Article 2. Application of professional regulation for judicial expertise activities in the field of planning and investment

1. Professional regulation applicable to judicial expertise activities in the field of planning and investment includes standards of investment appraisal, bidding, enterprise/cooperative registration and other standards in the field of planning and investment.

2. The expertise of a field not prescribed in any regulation shall be based on legislative documents providing for such field of expertise.

3. The judicial expertise in the field of planning and investment shall be based on legislative documents that are effective at the time the issue is raised.

Article 3. Receipt of solicitations/requests, objects of judicial expertise and appointment of judicial expertise performers

1. Regarding the Ministry of Planning and Investment:

a) If the document of solicitation/request for judicial expertise is sent to the Ministry of Planning and Investment, the Legal Department shall preside over and cooperate with Heads of relevant units affiliated to Ministries in appointing judicial expertise performers on the basis of the solicitation/request for judicial expertise and according to the standards specified in Article 2 of Circular No. 07/2014/TT-BKHDT dated November 24, 2014 by the Ministry of Planning and Investment. Organization and Personnel Department shall receive documents from Legal Department and submit them to the Minister of Planning and Investment for appointing judicial expertise performers.

The handover and receipt of dossiers and objects of solicited/requested expertise shall be recorded in writing according to the form in Appendix I of this Circular;

b) When receiving an object of expertise, a relevant document or an enclosed sample (if any) that is sealed, the person in charge of breaking the seal must check the seal before breaking it. The breaking of the seal must be with the attendance of the expertise performer; the expertise solicitor/requester and the witness (if any) All information and activities related to the breaking of the seal must be recorded in writing and verified by the participants and witnesses according to the form in Appendix II of this Circular;

c) If the written solicitation/request for judicial expertise contains a content outside the state management in the field of planning and investment, the Ministry of Planning and Investment (Legal Department) shall send the solicitor/requester a written refusal of the solicitation/request;

d) If the expertise solicitor/requester applies for having expertise carried out by a specific judicial expertise performer, such expertise performer shall request the Head of his/her direct management unit to assign and facilitate the expertise.

2. Regarding Services of Planning and Investment; management boards of industrial zones, export-processing zones and economic zones:

a) If the content of the solicitation/request for judicial expertise is within the state management, the Director of the Service of Planning and Investment and the Leader of the management board of industrial zone/export-processing zone/economic zone shall choose the judicial experts and ad hoc judicial expertise performers according to the expertise solicitation/request and decide the form of expertise (individual or collective) according to regulations in Article 28 of the Law on judicial expertise; then send the solicitor/requester the list of officials assigned to perform the expertise and the form of expertise for his/her solicitation/request;

b) If the expertise content is outside the state management, the Director of the Service of Planning and Investment and/or the leader of the management board of the industrial zone/export-processing zone/economic zone shall refuse to carry out the judicial expertise and send a response to the expertise solicitor/requester.

3. Any person assigned to carry out the judicial expertise is responsible for receiving the expertise solicitation/request, carrying out the expertise, making conclusion about expertise content and producing response for the solicitor/requester.

If the content subject to expertise exceeds the specialist capacity; the object of expertise, relevant documents are not sufficient for expertise conclusion; time limit is not sufficient for expertise or due to a good and sufficient reason, a written refusal containing explanation shall be sent to the solicitor/requester.

Article 4. Judicial expertise dossier

The judicial expertise dossier shall be made by the judicial expertise performer; such dossier shall include the expertise solicitation decision, the written request for expertise; the written record of handover and receipt of the dossier and object of solicited or requested expertise; expertise photos (if any); previous expertise conclusion or result of the expertise test or experimentation performed by another person (if any) and other documents related to the expertise process and the judicial expertise conclusions.

Article 5. Conclusion of judicial expertise

1. The judicial expertise performer shall make judicial expertise conclusion according to regulations in Clause 1 Article 32 of the Law on judicial expertise.

2. Judicial expertise conclusion must bear the signature of the judicial expertise performer or the head of the organization in charge of judicial expertise as prescribed in Clause 2 Article 32 of the Law on judicial expertise.

3. Judicial expertise conclusion, judicial expertise conclusion transfer note and expertise record shall be made according to forms in Appendix III, IV and V of this Circular.

Article 6. Establishment of Judicial expertise council

1. The Minister of Planning and Investment shall establish a Judicial expertise council in the field of planning and investment in case there is difference between the result of the initial expertise and that of the second one of the same content.

2. The Judicial expertise council in the field of planning and investment is established as follows:

a) Organization and Personnel Department shall preside over and cooperate with Legal Department in choosing judicial expertise performers for specific cases according to the content of expertise solicitation, completing the expertise dossier and submitting it to the Minister for decision on establishment of the Council;

b) The Judicial expertise council shall include at least 03 members who are specialized and experienced in the field subject to expertise;

c) The Judicial expertise council shall operate by collective expertise mechanism as prescribed in clause 3 Article 28 of the Law on judicial expertise.

Article 7. Effect

1. This Circular comes into effect from December 15, 2015.

2. The Chief of the Ministry Office, Director of Organization and Personnel Department, Director of Legal Department, Heads of relevant units affiliated to the Ministries, Directors of Services of Planning and Investment of central-affiliated cities and provinces, Leaders of the management boards of industrial zones, export-processing zones and economic zones are responsible for implementing this Circular./.