Judicial expertise is the use of knowledge, means and scientific, technical methods by an expert to make professional conclusions on issues related to criminal or administrative cases. There are lots of responsibilities and obligations of the person in charge of judicial expertise in civil proceedings. So about the matter “Rights and obligations of the expert witness under Vietnam law.” Let’s find out with LSX in the article below.
Legal grounds
- Criminal Procedure Code 2015
- Law on Judicial Assessment 2020
The concept of judicial expertise
Judicial expertise is the use of scientific, technical and professional knowledge, means and methods to make conclusions on issues related to criminal, administrative and civil cases by judicial experts. It shall act at the request of procedure-conducting agencies or procedure-conducting persons in service of the settlement of the case.
Pursuant to Clause 1, Article 1 of the 2020 Law on Judicial Assessment, judicial expertise is defined as follows: “Judicial expertise means the use of knowledge, means and scientific, technical and professional methods by a judicial expert to make conclusions on issues related to prosecution, investigation, prosecuting, adjudicating and executing criminal judgments, settling civil cases and administrative cases at the request of competent procedure-conducting agencies, persons to conduct procedures or at the request of agencies or person in accordance with this Law.”
The concept of expert witness
An expert witness means a person with professional knowledge in the field to be assessed, solicited by a competent procedure-conducting agency or requested by a procedure participant in accordance with law.
Ensure the impartiality and objectivity of the expert witness
An expert witness means a person who has the necessary knowledge and experience as prescribed by law on the matter subject to expertise, selected by agreement between the involved parties or solicited by the Court for double expertise at the request of one or the involved parties (Article 79 of the current Civil Procedure Code). Therefore, unlike other participants in the proceedings, the expert witness participates in the proceedings as an expert on the issue that the procedure-conducting agency, the procedure-conducting person as well as the involved parties care about. The expert witness’s conclusion is the expert witness’s opinion. Therefore, it has a great influence on the decision of the proceeding agency, the person conducting the proceedings. With regard to the settlement of civil cases, conclusions and opinions of experts witness also affect the behavior and choice of involved parties. Therefore, it is required that expert witness be impartial, objective and honest like those conducting legal proceedings. If they are not impartial, they are not allowed to participate in the proceedings. Therefore, Article 16 of the current Civil Procedure Code stipulates: “The chief justice of the court, the judge, the people’s jurors, the court clerk, the procurator, the interpreter, the person who experts may not conduct or participate in proceedings, if there is a good reason to believe that they may not be impartial in the performance of their duties and powers.
The civil procedural law also has provisions to ensure that expert witness is impartial and objective such as: points c, d, đ, e, g, h, Clause 1 and 2, Article 80.
“1. An expert witness has the following rights and obligations:
a) To read documents contained in the case file related to the subject of expert witness; request the Court to provide necessary documents for the expert witness;
b) To ask questions of procedure participants about matters related to the expertised objects;
c) Must be present under the court’s summons; explain and answer matters related to the assessment and conclusions in an honest, grounded and objective manner;
d) To notify in writing the Court of the impossibility of expert witness due to the need for expert witness beyond his professional capacity, insufficient or unusable documents provided in service of the expertise;
đ) The received documents must be preserved and returned to the Court together with the expertising conclusions or together with the notice of the impossibility of expertise;
e) Not to collect documents by themselves to conduct expertise, to contact other procedure participants if such contact affects the expertise results; not to disclose confidential information they know when conducting expertise or notifying assessment results to other people, except for judges who decide to solicit expertise;
g) To be paid relevant expenses as prescribed by law;
h) To make commitments before the Court about the performance of their rights and obligations.”
Rights and obligations of the expert witness under Vietnam law
Rights of the expert witness
– Find out the documents of the case related to the subject of an expert witness;
– Request the procedure agency or the procedure participant to provide necessary documents for the conclusion;
– Participate in interrogation, take statements and ask questions about matters related to the subject of expertise;
– Refuse to conduct the assessment in case, the time is not enough to conduct the assessment, the documents provided are not enough or are not valid for conclusion, the content of the request for assessment is beyond the scope of professional knowledge.
– Write your own opinion in the general conclusion if you disagree with the general conclusion in the case of assessment conducted by a collective of experts;
– Other rights as prescribed by the Law on Judicial Assessment
Obligations of the expert witness
– To be present at the summons of the agency competent to conduct the proceedings;
– Keep the investigation secret that an expert witness knows when performing the assessment;
– Other obligations as prescribed by the Law on Judicial Assessment.
An expert witness who makes false conclusions or refuse to make expert conclusions without reason of force majeure or objective obstacles shall bear penal liability according to the provisions of the Penal Code 2015.
General criteria for appointing an expert witness
To become an expert witness, a citizen must meet the following conditions:
• Vietnamese citizens permanently residing in Vietnam
• Have a full capacity for civil acts
• Have good health and moral character
• Have a university degree or higher
• Having practiced professional practice in the field of training for full 05 years or more
Conditions to be appointed an expert witness
Persons who are appointed an expert witness must satisfy the following conditions:
– Have good health and moral qualities;
– For forensic experts, they must be doctors, pharmacists from university or graduate from university or higher in other specialties relevant to the field of forensic examination;
– Have worked in accordance with the training major at a medical facility for at least 5 years. In case, the person proposed for appointment of an expert witness is a person who directly assists in the assessment activities at a forensic examination organization, the period of professional practice must be at least 3 years.
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Frequently asked questions
An expert witness must refuse to participate in the proceedings or be changed when falling into one of the following cases:
– At the same time as the victim, the litigant; being the representative or relative of the victim, the litigant or the accused or defendant;
– Participated as a defense counsel, witness, interpreter, translator, property appraiser in that case;
– Proceedings have been conducted in that case.
– Appointment proposal letter.
– A copy of a university diploma or higher relevant to the proposed professional field.
– Curriculum Vitae and Criminal Record Card.
– A written certification of the actual time of professional activities of the agency or organization where the person proposed to be appointed works.
– Certificate of professional training or refresher training for the person proposed for appointment in the field of forensic medicine, forensic psychiatry and criminal technology.
– Other papers proving that the person proposed for appointment fully meets the criteria as prescribed by the minister or head of a ministerial-level agency competent to manage the expertise field.
In order to be appointed a forensic psychiatric examiner, the following criteria must be met:
– Vietnamese citizens permanently residing in Vietnam fully meeting the criteria specified in Clause 1, Article 7 of the Law on Judicial Assessment, not falling into the cases specified in Clause 1 of this Article. defined in Clause 2, Article 7 of the Law on Judicial Assessment and meets the following specific criteria to be appointed forensic examiner, forensic psychiatrist:
– For forensic experts, they must be doctors, pharmacists from university or graduate from university or higher in other specialties relevant to the field of forensic examination; for forensic psychiatrists, they must be doctors who have been trained in psychiatry or higher;
– Having worked in the right specialty and trained at a medical facility for at least 5 years. In case the person proposed for appointment of forensic medical examiner or forensic psychiatrist is a person who directly assists in assessment activities at a forensic or forensic mental health organization, the actual working time shall be as follows: professional experience must have been full 03 years or more;
– Having a certificate issued by the National Forensic Institute, the Central Institute of Forensic Psychiatry or a training institution with the Forensic Department, the Department of Psychiatry, for participants of the training or refresher course on assessment for at least 3 years. months or more according to the training program approved by the Ministry of Health.
– Persons who have obtained a degree or certificate of specialized orientation or higher in forensic medicine or forensic psychiatry are not required to undergo training or retraining in expertise.
University diplomas or higher, certificates of training or refresher courses in forensic examination, forensic psychiatric assessment issued by foreign educational institutions must be recognized in Vietnam in accordance with regulations of law. education law or international treaties to which the Socialist Republic of Vietnam is a signatory.
Conclusion: So the above is Rights and obligations of the expert witness under Vietnam law. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
