Thông tư 33/2014/TT-BGTVT

CIRCULAR

REGULATION ON JUDICIAL EXPERTISE IN THE FIELD OF TRANSPORTATION

Pursuant to the Law on judicial expertise dated 20 June 2012;

Pursuant to the Ordinance on expertise, evaluation, witness, interpreter expenses in the proceedings dated 28 March 2012;

Pursuant to Decree No. 85/2013/ND-CP dated 29 July 2013 of the Government detailing the implementation of the Law on judicial expertise;

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

At the request of Director of Department of Legal Affairs,

The Ministry of Transport issues the Circular stipulating judicial expertise in the field of transportation.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular stipulates the criteria for appointing judicial expert; preparation and announcement of list of ad hoc judicial expert; procedures for appointing persons to participate in judicial expertise and establish the expertise Committee; application of regulations and criteria in expertise activities and expertise expenses in the field of transport.

2. The contents related to the judicial expertise on construction of traffic work shall comply with the regulations of the Ministry of Construction.

Article 2. Subject of application

This Circular applies to cadres, officials, officers, organs and units under the management of the Ministry of Transport, the Department of Transport and other organizations and individuals related to the judicial expertise in the field of transport.

Chapter II

CRITERIA FOR APPOINTMENT OF JUDICIAL EXPERT; MAKING AND ANNOUNCEMENT OF LIST OF AD HOC JUDICIAL EXPERT IN THE FIELD OF TRANSPORT

Article 3. Criteria for appointment of judicial expert in the field of transport

The judicial expertise in the field of transport must meet the following criteria:

1. Being Vietnamese citizen with permanent residence in Vietnam, good health and moral qualities.

2. Having training speciality from the university level or higher related to the field of transport.

3. Having experience in performing professional work related to the trained speciality specified in Clause 2 of this Article from 05 years or more.

Article 4. Criteria for ad hoc judicial expert in the field of transport

1. The Vietnamese citizen permenently residing in Vietnam meeting the following criteria may be chosen as ad hoc judicial expert in the field of transport:

a) Having good health and moral qualities;

b) Having university level or higher with experience in performing professional work related to the trained speciality from 05 years or more.

2. Where a person has no university background but with in-depth knowledge and a lot of practical experiences in the field with required expertise, he/she can be chosen as an ad hoc judicial expert in the field of transport.

Article 5. Making and announcement of ad hoc judicial expert in the field of transport

The making and announcement of ad hoc judicial expert in the field of transport under the management authority of the Ministry of Transport are carried out as follows:

1. Before the first of November annually, the Department of Legal Affairs shall coordinate with the Department of Personnel and Organisation to estimate a number of ad hoc judicial experts to be submitted to the Minister for approval.

2. On the basis of estimated number of ad hoc judicial experts approved, the heads of organs and units under the management of the Ministry shall choose and make a list of ad hoc judicial experts and send it to the Department of Personnel and Organisation before the 30th of November annually.

The Department of Personnel and Organisation shall coordinate with the Department of Legal Affairs to prepare a list of ad hoc judicial experts, submit it to the Minister for announcement.

3. The Department of Personnel and Organisation shall send this list with information on expertise speciality, experiences and ability of ad hoc judicial experts in the field of transportation to the information technology Center for listing on the Ministry’s website and also send this list to the Ministry of Justice for recording in the prescribed general list.

The information technology Center shall post such list within 02 (two) working days after receiving it.

Chapter III

PROCEDURES FOR APPOINTING PERSONS TO TAKE PART IN JUDICIAL EXPERTISE AND ESTABLISH THE EXPERTISE COMMITTEE

Article 6. Appointing persons to take part in judicial expertise

1. At the Ministry of Transport:

a) Where the Ministry of Transport receives a request for solicitation decision. The written request for judicial expertise has its contents under the management of state of the Ministry, the Department of Legal Affairs shall coordinate with the Department of Personnel and Organization and heads of relevant organs and units to choose the ad hoc judicial experts in accordance with the contents of expertise solicitation in order to propose the form of expertise to be submitted to the Minister for appointing judicial expert and decision on form of expertise of solicited contents.

Where the socilicitation of judicial expertise has its contents not under the state management of the Ministry of Transport, the Department of Legal Affairs shall coordinate with the Department of Personnel and Organization shall request the Minister to sign the written refusal of judicial expertise to be sent to the organ requesting solicitation.

b) Where the organs or units under the management of the Ministry receive the request or solicitation of expertise within their handling authority, the heads of such organs or units shall receive it and assign their employees to carry out the judicial expertise.

2. At the Departments of Transport:

The appointment of judicial expert shall comply with the regulations of provincial People’s Committee.

3. The person assigned to carry out the judicial expertise shall receive the contents of solicitation or request for expertise, carry out the expertise and give conclusion on expertise contents and feedback to the organs soliciting the expertise.

In case of refusal of expertise as the expertise contents go beyond professional ability; subjects of expertise, relevant documents insufficiently provided or without value to give expertise conclusion or insufficient time for expertise or other plausible reasons, thus the written refusal of expertise must be sent to the person requesting or soliciting expertise stating the reasons.

Article 7. Establishing of expertise Committee

1. The establishment of expertise Committee in the field of transportation is done in case there is a difference between the initial expertise conslusion and re-expertise conclusion of the same expertise content.

2. The expertise Committee in the field of transportation shall be established by decision of the Minister of Transport.

3. The establishment is done as follows:

a) The Department of Legal Affairs shall coordinate with the Department of Personnel and Organization to choose the ad hoc judical experts in accordance with the contents of expertise solicitation, completion of dossier to be submitted to the Minister for decision of Committee establishment.

b) The expertise Committee has at least 03 members who are highly professional and respected in the field of required expertise.

c) The expertise Committee operates under the mechanism of collective expertise specified in Clause 3, Article 28 of the Law on Judical Expertise.

Chapter IV

APPLICATION OF PROFESSIONAL REGULATIONS AND STANDARDS IN JUDICIAL EXPERTISE; DOSSIER OF JUDICIAL EXPERTISE IN THE FIELD OF TRANSPORTATION

Article 8. Application of professional regulations and standards in judicial expertise; dossier of judicial expertise in the field of transportation

The professional regulations and standards applied to the judicial expertise in the field of transportation are the national regulation and standard applied in the field of transportation.

Article 9. Receipt of solicitation, request and subject of expertise

1. The receipt of dossier and subject of solicitation, request for expertise must be made in writing under the Form specified in Annex I of this Circular and is done as per the provisions in Article 27 of the Law on Judicial Expertise. The valid written solicitation or request for expertise with proper subject of solicitation or request and proper solicited subject.

2. When receiving the subject of expertise, relevant documents or attached comparison sample (if any) with seal, check it upon opening. The opening process must have the presence of the person carrying out the expertise, solicitor or requestor of expertise and the witness (if any). Any information or happening related to the opening must be recorded and signed of the participating and witnessing parties in the Form specified in Annex II of this Circular.

3. For invalid solicitation or request for expertise, the solicited individuals or organizations must send documents to the organs or solicitor stating the reasons.

4. Upon the completion of expertise, the individual or organization carrying out the expertise shall return the subject of expertise to the organ or individual soliciting the expertise, unless otherwise specified by law.

Article. Dossier of judicial expertise

1. The dossier of judicial expertise shall be made by the judicial expert, including: Solicitation decision, written request for expertise, receipt of dossier delivery and handover, subject of solicitation, expertise request, document recognizing the expertise process, expertise conclusion and other documents related to the entire expertise process.

2. The judicial expertise conclusion, record of handover of judicial expertise conclusion and document recording the entire expertise process shall comply with the form specified in Annex III, IV, V of this Circular.

Article 11. Expenses of judicial expertise in the field of transport

The expenses of judicial expertise in the field of transport shall comply with regulations of law on expenses of judicial expertise.

Chapter V

IMPLEMENTATION

Article 12. Effect

This Circular takes effect from 30 Septem 2014.

Article 13. Implementation

1. The Department of Legal Affairs shall coordinate with the Department of Personnel and Organization to provide guidelines and carry out and inspect the organs and units in implementation of this Circular.

2. Chief of Ministerial Office, Ministerial Chief Inspector, Directors of Ministerial Departments, Director General of Directorate for roads of Vietnam, Directors of Ministerial Authorities, Directors of Department of Transport, Heads of relevant organs and units are liable to execute this Circular./.