Decree 157/2020/ND-CP amending Decree 85/2013/ND-CP guiding the Law on Judicial Assessment

DECREE

AMENDING A NUMBER OF ARTICLES OF GOVERNMENT'S DECREE NO. 85/2013/ND-CP DATED JULY 29, 2013 STIPULATING IN DETAIL AND MEASURES TO IMPLEMENT THE LAW ON JUDICIAL EXPERTISE

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Amendments to Law on Government Organization and Law on Local Government Organization dated November 22, 2019;

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

Pursuant to the Law on Amendments to Law on Judicial Expertise dated June 10, 2020;

At the request of the Minister of Justice;

The Government hereby promulgates a Decree amending a number of Articles of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013 stipulating in detail and measures to implement the Law on Judicial Expertise.

Article 1. Amendments to some Articles of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013 stipulating in detail and measures to implement the Law on Judicial Expertise

1. Article 1 is amended as follows:

“Article 1. Scope

This Decree provides for the organization, functions and duties of public judicial expertise organizations; the establishment and registration of operation of judicial expertise offices; incentive policies for judicial expertise offices; decisions on recognition of subject-matter judicial experts and subject-matter expertise service providers; duties and powers of ministries, ministerial-level agencies, Governmental agencies and People's Committees of provinces and centrally-affiliated cities (hereinafter referred to as provincial-level People's Committees) for judicial expertise.”

2. Point b Clause 1 Article 3 is amended as follows:

 “b) Develop and propose procedures for and regulations on forensic examination to the Minister of Health for issuance;”

3. Point b Clause 1 Article 7 is amended as follows:

“b) Develop and propose procedures for and regulations on psychiatric forensic examination to the Minister of Health for issuance.”

4. Point b Clause 1 Article 9 is amended as follows:

“b) Develop and propose procedures for and regulations on criminal technical expertise to the Minister of Public Security for issuance;”

5. Clause 2 Article 21 is amended as follows:

 “2. In case of termination of operation prescribed in Point a Clause 1 of this Article, at least 30 days before the expected time of termination of operation, the judicial expertise office shall submit a written report to the Department of Justice of the province where its operation has been registered.

The judicial expertise office must submit together with the report documentary evidences of having provided its expertise for solicitations and requests for judicial expertise received, paid off its tax debt and debts as per the law, terminated labor contracts signed with its workers and announced the expected time of operation termination on a central or local newspaper in two consecutive issues.

Within 07 working days from the date of receipt of valid documents, Direct of the Department of Justice shall propose the documents to Chairperson of the provincial People's Committee for consideration and decision on termination of operation of the judicial expertise office. Within 15 days from the date where the Department of Justice proposes the documents, Chairperson of the provincial People’s Committee shall issue a decision on termination of operation of the judicial expertise office.

Within 07 working days, the Department of Justice shall notify termination of operation of the judicial expertise office to the office and regulatory bodies and organizations mentioned in Clause 1 Article 16 herein.”

6. Article 23 is amended as follows:

 “Article 23. Recognition, posting of lists and annulment of recognition of subject-matter judicial experts and subject-matter expertise service providers

1. Based on actual need of legal proceedings, Ministries, ministerial-level agencies, Governmental agencies and provincial People's Committees shall select persons qualified according to regulations in Article 18 and providers qualified according to regulations in Article 19 of the Law on Judicial Expertise and issue decisions on recognition of subject-matter judicial experts and subject-matter expertise service providers in the fields under their management.

2. Lists of subject-matter judicial experts and subject-matter expertise service providers shall be posted on information portals of Ministries, ministerial-level agencies, Governmental agencies and provincial People's Committees and sent to the Ministry of Justice.

3. In case of change to information of recognized subject-matter judicial experts and subject-matter expertise service providers, Ministries, ministerial-level agencies, Governmental agencies and provincial People's Committees shall revise and send the lists to the Ministry of Justice.

4. For subject-matter judicial experts and subject-matter expertise service providers selected, added to lists and announced before January 01, 2021, if they are still qualified, they may be recognized as subject-matter judicial experts and subject-matter expertise service providers according to regulations in the Law on Amendments to Law on Judicial Expertise.

5. Ministries, ministerial-level agencies, Governmental agencies and provincial People's Committees shall issue decisions on annulment of recognition of subject-matter judicial experts no longer qualified according to regulations in Article 18 and subject-matter expertise service providers no longer qualified according to regulations in Article 19 of the Law on Judicial Expertise.”

7. Article 26 is amended as follows:

 “Article 26. Allowances for judicial experts and participants in judicial expertise activities

1. Judicial experts enjoying wages allocated from state funding for forensic examination, psychiatric forensic examination and criminal technical expertise are entitled to responsibility allowances for judicial expertise.

Judicial experts affiliated to public judicial expertise service providers in the fields of forensic examination and psychiatric forensic examination of the healthcare sector are entitled to professional allowances.

2. Judicial experts and participants in judicial expertise activities affiliated to public judicial expertise service providers in the field of forensic examination of the healthcare sector are entitled to permanent allowances.”

8. Point d, Point dd and Point g Clause 1 Article 27 are amended as follows:

 “d) The Ministry of Health shall take charge and cooperate with relevant ministries in researching or proposing that competent authorities provide regulations on codes or professional titles for specialized judicial experts and participants in judicial expertise activities affiliated to public judicial expertise service providers in the fields of forensic examination and psychiatric forensic examination of the healthcare sector; developing and proposing  permanent allowance regimes for judicial experts and participants in judicial expertise activities affiliated to public judicial expertise service providers in the field of forensic examination of the healthcare sector to competent authorities for promulgation; monitoring, expediting and submitting consolidated reports to the Prime Minister on provision of benefits to specialized judicial experts and participants in judicial expertise activities affiliated to public judicial expertise service providers in the fields of forensic examination and psychiatric forensic examination of the healthcare sector;

The Ministry of Public Security shall take charge and cooperate with relevant ministries in researching and proposing that competent authorities provide regulations on professional titles for specialized judicial experts and participants in judicial expertise activities affiliated to public judicial expertise service providers of the police force as per the law; monitoring, expediting and submitting consolidated reports to the Prime Minister on provision of benefits to specialized judicial experts and participants in judicial expertise activities affiliated to public judicial expertise service providers of the police force;

“dd) The Ministry of Health shall take charge and cooperate with the Ministry of Public Security and Ministry of National Defense in inspecting forensic examination in public security and national defense sectors. The Ministry of Public Security shall take charge and cooperate with the Ministry of National Defense in inspecting criminal technical expertise in the army; and cooperate with the Supreme People’s Procuracy in inspecting criminal technical expertise in procuracies;”

“g) Ministries and ministerial-level agencies shall review and post lists of judicial experts and judicial expertise service providers on their web portals; annul recognition of subject-matter judicial experts and subject-matter judicial expertise service providers and, concurrently, send updated lists to the Ministry of Justice to revise general lists;”

9. Point b Clause 2 Article 27 is amended as follows:

b) Review, post and update lists of judicial experts and judicial expertise service providers on web portals of provincial People's Committees and send lists to the Ministry of Justice.”

10. Article 28 is amended as follows:

“Article 28. Duties and powers of Departments of Justice and specialized units affiliated to provincial People’s Committees

1. Departments of Justice have the following duties and powers:

a) Take charge and cooperate with specialized units affiliated to provincial People's Committees managing judicial expertise in appraising and proposing applications for judicial expertise office establishment, conversion of operation type and change to areas of expertise of judicial expertise offices to provincial People's Committees for consideration and decision; take charge and cooperate with specialized units affiliated to provincial People's Committees in registering operation of judicial expertise offices;

b) Take charge or cooperate with specialized units affiliated to provincial People's Committees managing judicial expertise in organizing refresher courses on legal knowledge for local judicial experts;

c) Cooperate with Departments of Health in formulating and proposing schemes for establishment and strengthening of public judicial expertise service providers in the field of forensic examination to Chairpersons of provincial People’s Committees;

d) Cooperate with specialized units affiliated to provincial People's Committees managing judicial expertise in proposing appointment and dismissal of local judicial experts to Chairpersons of provincial People's Committees;

dd) Take charge and cooperate with specialized units affiliated to provincial People's Committees in assisting Chairpersons of provincial People’s Committees with issuance, reissuance and revocation of judicial expert cards;

e) Cooperate with specialized units affiliated to provincial People's Committees managing judicial expertise in selecting and proposing local subject-matter judicial experts and subject-matter judicial expertise service providers to Chairpersons of provincial People's Committees for decision on recognition or recognition annulment;

g) On an annual basis, take charge or cooperate with specialized units affiliated to provincial People's Committees managing judicial expertise in assessing organization and performance of local judicial expertise activities; propose solutions to provincial People's Committees to ensure quantity and quality of judicial experts as appropriate to expertise need of local legal proceedings;

h) Take charge or cooperate with specialized units affiliated to provincial People's Committees managing judicial expertise in inspecting and settling complaints and denunciations concerning judicial expertise within their competence;

i) Report on judicial expertise activities in their provinces to the Ministry of Justice and provincial People's Committees as per regulations of law on reporting requirements for state administrative agencies and requirements for periodic reporting under state management of the Ministry of Justice.”

2. Specialized units affiliated to provincial People’s Committees have the following duties and powers:

a) Take charge and cooperate with Departments of Justice in selecting and proposing appointment and dismissal of judicial experts to Chairpersons of provincial People's Committees;

b) Cooperate with Departments of Justice in assisting Chairpersons of provincial People’s Committees with issuance, reissuance and revocation of judicial expert cards;

c) Take charge and cooperate with Departments of Justice in selecting and proposing local subject-matter judicial experts and subject-matter judicial expertise service providers to Chairpersons of provincial People's Committees for decision on recognition or recognition annulment;

d) Prepare cost estimate for operation of public judicial expertise service providers under their management;

d) Take charge and cooperate with Departments of Justice in organizing refresher courses for local judicial experts;

e) Take charge or cooperate with Departments of Justice in inspecting compliance with law on judicial expertise and settling complaints and denunciations within their competence;

g) Cooperate with Departments of Justice in appraising applications for judicial expertise office establishment, conversion of operation type and change to areas of expertise and registering operation of judicial expertise offices;

h) On an annual basis, submit reports on organization and performance of local judicial expertise activities under their management to Ministries and ministerial-level agencies managing fields of judicial expertise and provincial People’s Committees and, concurrently, send these reports to Departments of Justice for consolidation; commend judicial experts and judicial expertise service providers as prescribed by law;

i) Besides the duties and powers provided in Points a, b, c, d, dd, e and h Clause 2 herein, Departments of Health shall take charge and cooperate with Departments of Justice in proposing establishment and strengthening of provincial forensic examination centers to Chairpersons of provincial People's Committees.”

11. Article 28a is added after Article 28 as follows:

 “Article 28a. Method for carrying out administrative procedures concerning judicial expertise

Each applicant shall submit one application online or directly or by post to the competent authority according to regulations of law on judicial expertise and relevant law provisions when carrying out administrative procedures concerning judicial expertise.”

12. The phrase “cơ quan chuyên môn của Ủy ban nhân dân cấp tỉnh” (“specialized units of provincial People's Committees”) in Clause 2 Article 17 shall be replaced by “cơ quan chuyên môn thuộc Ủy ban nhân dân cấp tỉnh” (“specialized units affiliated to provincial People's Committees”).

Article 2. Annulment of some Clauses of Article 29 of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013 stipulating in detail and measures to implement the Law on Judicial Expertise

Clause 3 and Clause 4 of Article 29 are annulled.

Article 3. Implementation clause

1. This Decree comes into force from January 01, 2021.

2. Ministers, heads of Ministerial-level agencies, heads of Governmental agencies, Chairpersons of People’s Committees of provinces and central-affiliated cities shall implement this Decree./.

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