Research on Judicial Expertise in Vietnam

1. Definition of Judicial Expertise

According to Article 2.1 of Law on Judicial Expertise:

“Judicial expertise means that judicial expertise performers use scientific, technical and professional knowledge, means and methods to make expert conclusions regarding matters related to the criminal investigation, prosecution and trial and enforcement of criminal judgments or settlement of civil cases and matters and administrative cases when solicited by procedure-conducting agencies or persons or when requested by expertise requesters defined in this Law.”

2. Vietnam regulations regarding Judicial Expertise

In 2012, Vietnam National Assembly issued Law on Judicial Expertise, which is the most important legislative instrument in term of Judicial Expertise. After the issuance of Law on Judicial Expertise, some subordinate legislations were issued to clarify Law on Judicial Expertise, such as:

– Decree No. 85/2013/ND-CP, stipulating in detail and measures to implement the law on judicial expertise;

– Circular No. 35/2014/TT-BKHCN, provisions on judicial expertise in science and technology;

– Circular No. 50/2014/TT-BTC, provisions on fees of judicial expertise in the field of criminal technique.

3. Background of Judicial Expertise in Vietnam

There are several fields of Judicial Expertise in Vietnam: forensic medicine, psychiatrically forensic medicine, criminological techniques, finance, banking, construction, antiques, relics and copyright.

These fields of Judicial Expertise are practiced by Public judicial expertise institutions (such as The Criminological Science Institute under the Ministry of Public Security and Criminological technique sections of provincial-level Police Departments) and Judicial expertise offices (non-public judicial expertise institutions), according to Article 12 and 14 of Law on Judicial Expertise.

Besides, there are also Ad-hoc judicial expertise performers/institutions, which are invited or requested to perform expertise.

4. The necessity of Judicial Expertise in counterfeiting cases

In Vietnam, the act of manufacturing/trading counterfeit goods could constitute counterfeiting crime (Article 156, 157, 158 and Article 171 of Penal Code 1999.)

The counterfeit goods could be divided generally into 2 categories: Intellectual Property (IP) counterfeit (such as trademark counterfeit) and “content” counterfeit, which means counterfeiting goods does not meet the technical standards for circulation in the market.

In fact, the counterfeiting goods are often both IP counterfeit and “content” counterfeit. However, in many counterfeiting cases, the authorities face difficulties to apply Article 171 for IP counterfeit, so they prefer to apply Article 156, 157 and 158 for content counterfeit.

The role of Judicial Expertise is determining whether the goods seized by authority is content counterfeit or not. After getting the result of Judicial Expertise, the authorities will decide to handle the cases under Criminal Prosecution. It is also noticed that the Court will rely on the result of Judicial Expertise to make a judgment.

5. Some problems of Judicial Expertise in Vietnam

5.1. The confusion between Judicial Expertise and IP Expertise

There are some IP expertise institutions, notably Vietnam Intellectual Property Research Institute (VIPRI), which examine and conclude on the similarity between two objects (trademark, industrial design). Normally, the authorities could use the result of IP Expertise to impose administrative sanctions, such as money fine and confiscation, on infringers.

However, as mentioned in section 3, IP Expertise is not considered as Judicial Expertise, so Court is reluctant to use the result of IP Expertise issued by VIPRI to treat counterfeiting cases under Article 171 of Penal Code. It led to the fact that Court normally requires a result of Judicial Expertise to apply Article 156, 157 and 158, besides a result of IP Expertise.

5.2. The cost of Judicial Expertise

According to the Annex of Decree No. 50/2014/TT-BTC, the fee of expertizing counterfeiting goods is 5,720,000 VND (about $250) per sample to identifying chemical substances of sample. The high expertizing fee is a challenge for the authorities, which results in the small number of cases treated under Criminal Prosecution.

Furthermore, even a case is handled by Criminal Court, it is also difficult to conclude that all seized goods is counterfeit, based on the fact that only few samples are expertized, especially there is no regulation clarifying the amount of expertized goods.

5.3. The requirement of relevant genuine products for Judicial Expertise

In theory, to determine a suspected goods is counterfeit or not, we need to compare it with the relevant genuine one. However, sometimes there is no relevant genuine product to compare because the right holder does not manufacture this kind of product. In such cases, the authorities often apply Administrative methods rather than follow the Criminal way.

Another issue is the quantity of genuine products needed for Judicial Expertise. The authorities sometimes request the manufacturer to supply many samples, which is not necessary for the purpose of Judicial Expertise. It is possible that the manufacturer will deny the inappropriate request from the authorities, therefore the case will be delayed.

6. Recommendations

 6.1. Expanding the field of Judicial Expertise

Judicial Expertise should not be limited in several fields like forensic medicine, psychiatrically forensic medicine, criminological techniques, finance, banking, construction, antiques, relics and copyright. The necessity of Judicial Expertise requires its expansion into every fields.

In terms of Intellectual Property, specialized agencies such as National Office of Intellectual Property (NOIP) and VIPRI should be allowed to conduct Judicial Expertise. Generally, the experts of NOIP and VIPRI, who have both sufficient knowledge and experience in IP field, are qualified to be Judicial experts.

6.2. Improving the quality and quantity of Judicial experts

Article 7 of Law on Judicial Expertise points out criteria for Judicial experts, which are: being physically fit and having good moral qualities; achieving bachelor or higher degree and having been engaged in practical professional activities in his/her trained field for at least 5 years.

However, the quality of some experts is still low, which led to the slow process of Judicial Expertise and also the ambiguous result. Thus, the requirements for Judicial experts should be lifted to improve the efficiency of Judicial Expertise activity.

According to the recent statistic of Ministry of Jurisdiction, there are 5,274 Judicial experts in Vietnam. This is still a small amount, compared to the demand of society. So, it is necessary to enhance the quantity of Judicial experts practicing in every field.

6.3. Clarifying the regulations of Judicial Expertise

Many problems come from the lack of detail regulations such as the quantity of expertized goods and genuine products in Judicial Expertise activity. Therefore, Ministry of Public Security, The Supreme Procuracy, The Supreme Court and other Departments should cooperate to issue more detail regulations, supplement to Law on Judicial Expertise.

Source: Auramark