Nghị định 157/2020/NĐ-CP sửa Nghị định 85/2013/NĐ-CP hướng dẫn Luật Giám định tư pháp

DECREE

Amending and supplementing a number of articles of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013, on detailing and providing measures for implementing the Law on Judicial Expertise

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

Pursuant to the Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration dated November 22, 2019;

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

Pursuant to the Law Amending and Supplementing a Number of Articles of the Law on Judicial Expertise dated June 10, 2020;

At the proposal of the Minister of Justice;

The Government hereby promulgates the Decree amending and supplementing a number of articles of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013, on detailing and providing measures for implementing the Law on Judicial Expertise.

Article 1. Amending and supplementing a number of articles of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013, on detailing and providing measures for implementing the Law on Judicial Expertise

1. To amend and supplement Article 1 as follows:

“Article 1. Scope of regulation

This Decree provides the organization, functions and tasks of public judicial expertise institutions; establishment and operation registration of judicial expertise offices; incentive policies for judicial expertise offices; decisions on the recognition of ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions; tasks and powers of ministries, ministerial-level agencies, government-attached agencies and People’s Committees of provinces and centrally-affiliated cities (hereinafter referred to as provincial-level People’s Committees) in judicial expertise activities.”

2. To amend Point b Clause 1 Article 3 as follows:

“b) To formulate and submit process and regulations on forensic medical expertise to the Minister of Health for promulgation;”

3. To amend Point b Clause 1 Article 7 as follows:

“b) To formulate and submit process and regulations on forensic psychiatric expertise to the Minister of Health for promulgation;”

4. To amend Point b Clause 1 Article 9 as follows:

“b) To formulate and submit process and regulations on criminal technical expertise to the Minister of Public Security for promulgation;”

5. To amend Clause 2 Article 21 as follows:

“2. In case of operation termination under Point a Clause 1 of this Article, at least 30 days before the expected date of operation termination, a judicial expertise office shall send a written report to the provincial-level Justice Department with which it has made operation registration.

The judicial expertise office shall send reports and papers proving the completion of judicial expertise solicitations or requests it has accepted, pay owed tax and debts as prescribed by law, carry out procedures to terminate labor contracts signed with employees and publish information on the expected time of termination registration on 2 consecutive issues of a central or local newspaper.

Within 07 working days after receiving a complete and valid dossier, the Director of the provincial-level Department of Justice shall submit it to the Chairperson of the provincial-level People's Committee for consideration and decision to terminate the operation of the judicial expertise office. Within 15 days from the date the provincial-level Department of Justice submits the dossier, the Chairperson of the provincial-level People's Committee shall issue a decision to terminate the operation of the judicial expertise office.

Within 07 working days, the provincial-level Department of Justice shall notify in writing the operation termination to the judicial expertise office and the agencies and organizations specified in Clause 1 Article 16 of this Decree.”

6. To amend and supplement Article 23 as follows:

 “Article 23. Recognition, publicization and cancellation of recognition of ad-hoc judicial expertise performers, ad-hoc judicial expertise institutions

1. Based on actual requirements of legal proceedings, ministries, ministerial-level agencies, government-attached agencies and provincial-level People’s Committees shall select persons who meet all the criteria specified in Article 18 and institutions that fully meet the conditions specified in Article 19 of the Law on Judicial Expertise and issue decisions on recognition of ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions in the fields of management.

2. The list of ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions shall be posted on the web portals of ministries, ministerial-level agencies, government-attached agencies and provincial-level People’s Committees and sent to the Ministry of Justice.

3. In case information related to ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions that has been recognized has changed, ministries, ministerial-level agencies, government-attached agencies and provincial-level People’s Committees shall be responsible for adjusting the list and sending it to the Ministry of Justice.

4. If the ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions that has been selected, established and announced before January 01, 2021 still meet the criteria and conditions, they shall be recognized as ad-hoc judicial expertise performers or ad-hoc judicial expertise institutions in accordance with the Law Amending and Supplementing a Number of Articles of the Law on Judicial Expertise.

5. Ministries, ministerial-level agencies, government-attached agencies, and provincial-level People’s Committees shall issue decisions to cancel the recognition of ad-hoc judicial expertise performers no longer meeting the criteria specified in Article 18, ad-hoc judicial expertise institutions no longer satisfying the conditions specified in Article 19 of the Law on Judicial Expertise.”

7. To amend and supplement Article 26 as follows:

“26. Allowances for judicial experts and persons engaged in judicial expertise

1. Judicial experts who are salaried by the state budget, in the fields of forensic medicine, forensic psychiatry, and criminal techniques are entitled to the responsibility allowance for judicial expertise activities.

Judicial experts of public judicial expertise institutions operating in the fields of forensic medicine and forensic psychiatry of healthcare sector are entitled to the occupation-based preferential allowance.

2. Judicial experts and persons engaged in judicial expertise of public judicial expertise institutions in the medical sector are entitled to a standing allowance.”

8. To amend Point d, Point dd and Point g Clause 1 Article 27 as follows:

“d) The Ministry of Health shall assume the prime responsibility for, and coordinate with relevant ministries and sectors in, studying and requesting competent state agencies to provide professional codes or titles for full-time judicial experts and persons engaged in judicial expertise of public judicial expertise institutions operating in the fields of forensic medicine and forensic psychiatry of the healthcare sector; developing and proposing  standing allowance regimes for judicial experts and persons engaged in judicial expertise  of public judicial expertise institutions operating in the field of forensic medicine of the healthcare sector to competent agencies for promulgation; monitor, urge and summarize and report to the Prime Minister on the implementation of preferential regimes and policies towards full-time judicial experts and persons engaged in judicial expertise of public judicial expertise institutions operating in the fields of forensic medicine and forensic psychiatry in the healthcare sector;

The Ministry of Public Security shall assume the prime responsibility for,  and cooperate with relevant ministries and sectors, in studying and requesting competent state agencies to provide professional codes or titles for full-time judicial experts and persons engaged in judicial expertise of public judicial expertise institutions in the police force as prescribed by law; monitor, urge, summarize and report to the Prime Minister on the implementation of preferential regimes and policies towards full-time judicial experts and persons engaged in judicial expertise of public judicial expertise institutions operating in the fields of forensic medicine and forensic psychiatry in the police force;”

“dd) The Ministry of Health shall assume the prime responsibility for, and coordinate with the Ministry of Public Security and the Ministry of National Defense in, inspecting and supervising forensic expertise activities in the public security and defense sectors, the Ministry of Public Security shall assume the prime responsibility for, and coordinate with the Ministry of National Defense in, inspecting and supervising criminal technical expertise activities in the army; coordinate with the Supreme People's Procuracy in inspecting criminal technical expertise activities in the procuracies;”

“g) Ministries and ministerial-level agencies  shall review and post up the lists of judicial experts and judicial expertise institutions on their web portals; cancel the recognition of ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions, and at the same time send such lists to the Ministry of Justice for making modifications to the general list;”

9. To amend Point b Clause 2 Article 27 as follows:

b) To review, post up and update the lists of judicial experts and judicial expertise institutions on web portals of provincial-level People’s Committees and send such lists to the Ministry of Justice at the same time.”

10. To amend and supplement Article 28 as follows:

“Article 28. Tasks and powers of provincial-level Departments of Justice and professional agencies under provincial-level People’s Committees

“1. The provincial-level Department of Justice has the following tasks and powers:

a) To assume the prime responsibility for, and coordinate with professional agencies under the provincial-level People’s Committees in charge of managing relevant fields of judicial expertise in, appraising dossiers of application for establishment of judicial expertise offices, conversion of operational form and change or supplementation of fields of expertise of judicial expertise offices for submission to provincial-level People’s Committees for consideration and decision; assume the prime responsibility for, and coordinate with professional agencies of provincial-level People’s Committees in, registering the operation of judicial expertise offices; 

b) To assume the prime responsibility for, and coordinate with professional units under provincial-level People’s Committees in charge of managing relevant fields of judicial expertise in organizing legal knowledge training for judicial experts in their localities;

c) To coordinate with provincial-level Departments of Health in elaborating schemes on establishment and consolidation of public judicial expertise institutions operating in the field of forensic medicine for submission to provincial-level People’s Committees;

d) To coordinate with professional units under provincial-level People’s Committees in charge of managing relevant fields of judicial expertise in submitting to the Chairpersons of the provincial People's Committees for appointment and dismissal of judicial experts in their localities;

dd) To assume the prime responsibility for, and coordinate with professional units under provincial-level People’s Committees in assisting the Chairpersons of the provincial-level People's Committees in, granting, re-granting and revoking the judicial expert cards;

e) To cooperate with professional units under provincial-level People’s Committees in charge of managing relevant fields of judicial expertise in selecting and submitting to Chairpersons of provincial-level People’s Committees for decision on recognition or cancellation of the recognition of ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions in the localities;

g) Annually, to assume the prime responsibility for, and coordinate with professional units under provincial-level People’s Committees in charge of managing relevant fields of judicial expertise in assessing the institutions and quality of judicial expertise activities in the localities; to propose solutions for provincial-level People’s Committees to ensure quantity and quality of judicial experts to meet the need for judicial expertise of legal proceedings in localities;

h) To assume the prime responsibility for, and coordinate with professional units under provincial-level People’s Committees in charge of managing relevant fields of judicial expertise in examining, inspecting and settling complaints and denunciations about judicial expertise according to their competence;

i) To report to the Ministry of Justice and provincial-level People’s Committees of the judicial expertise institutions and activities in localities according to the law on reporting regime applicable to state administrative agencies and regulations on periodic reporting regime under the state management of the Ministry of Justice.”

2. Professional agencies of provincial-level People’s Committees have the following tasks and powers:

a) To assume the prime responsibility for, and coordinate with provincial-level Departments of Justice in, selecting and proposing the appointment and dismissal of judicial experts to Chairpersons of provincial-level People’s Committees;

b) To coordinate with provincial-level Departments of Justice in assisting Chairpersons of provincial-level People’s Committees in granting, re-granting and revoking the judicial expert cards;

c) To assume the prime responsibility for, and coordinate with provincial-level Departments of Justice for decision on recognition or cancellation of the recognition of ad-hoc judicial expertise performers and ad-hoc judicial expertise institutions in the localities;

d) To prepare operating budget estimates for public judicial expertise institutions under the management;

dd) To assume the prime responsibility for, and coordinate with provincial-level Departments of Justice in, organizing professional training for local judicial experts;

e) To assume the prime responsibility for, and coordinate with provincial-level Departments of Justice in, examining and inspecting the implementation of the Law on Judicial Expertise: settling complaints and denunciations according to the competence;

g) To coordinate with provincial-level Departments of Justice in appraising dossiers of application for establishment of judicial expertise offices, conversion of operational form or change or supplementation of fields of expertise and registration of operation of judicial expertise offices;

h) Annually to report to ministries or ministerial-level agencies managing fields of judicial expertise and provincial-level People’s Committees on judicial expertise institutions and activities in the fields under their management; and concurrently, send these reports to provincial-level Justice Departments for summarization; implement the emulation and commendation regime for judicial experts and judicial expertise institutions as prescribed by law;

i) In addition to the tasks and powers specified at Points a, b, c, d, dd, e, h Clause 2 of this Article, provincial-level Departments of Health shall assume the prime responsibility for, and coordinate with provincial-level Justice Departments in, proposing provincial- level People’s Committees to establish and consolidate provincial-level forensic medicine centers.

11. To add Article 28a after Article 28 as follows:

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

An individual or organization shall submit 01 set of dossiers online or in person or by post to the competent agency in accordance with the Law on Judicial Expertise and relevant laws when carrying out administrative procedures relating to judicial expertise.

12. To replace the phrase “professional agencies of provincial-level People’s Committees” in Clause 2 Article 17 with the phrase “professional units under provincial-level People’s Committees”.

Article 2. Annulling a number of clauses in Article 29 of the Government's Decree No. 85/2013/ND-CP dated July 29, 2013, on detailing and providing measures for implementing the Law on Judicial Expertise

To annul Clause 3 and Clause 4 of Article 29.

Article 3. Effect

1. This Decree takes effect from January 01, 2021.

2. The Ministers, the heads of the ministerial-level agencies, the heads of government-attached agencies, Chairpersons of the People's Committees of provinces and centrally-run cities are responsible for the implementation of this Decree./.

On behalf of the Government

The Prime Minister

Nguyen Xuan Phuc