Clarifying departmental responsibilities and promoting the healthy development of the industry
Comics/Gao Yue
The rule of law daily, all-media reporter Zhan Haifeng
Law Daily correspondent Tan Yujiao
In recent years, Chongqing has continuously explored the handling of complaints about judicial expertise practice activities, judicial expertise education and training, and accumulated some good experiences and practices. On the basis of extensively soliciting opinions from all walks of life, the newly revised Regulations on Judicial Expertise in Chongqing (hereinafter referred to as the Regulations) was voted by the fourth meeting of the Standing Committee of the Sixth National People’s Congress of Chongqing and will be implemented on January 1, 2024. The "Regulations" take standardizing judicial authentication activities as the main line, focusing on standardizing judicial authentication institutions and judicial appraisers, judicial authentication activities, services and supervision, and legal responsibilities.
Pan Deng, director of the Second Division of the Legal Affairs Committee of the Standing Committee of Chongqing Municipal People’s Congress, said that the "Regulations" regulate the establishment and improvement of the linkage mechanism between the management and use of judicial expertise, give full play to the role of the expert committee of judicial expertise, clarify the matters of not accepting entrustment and not appointing judicial experts, and make corresponding regulations on the "four categories" of expertise outside litigation activities.
Improve the linkage mechanism between departments.
In order to further strengthen the communication and coordination between relevant departments and promote the benign interaction between judicial expertise management and use mechanism, the Regulations clearly define the responsibilities of the people’s governments of cities, districts and counties (autonomous counties) and the judicial administrative departments of cities, districts and counties (autonomous counties) and the internal management responsibilities of institutions.
In strengthening the supervision and management of judicial expertise, the "Regulations" propose that the people’s governments of cities, districts and counties (autonomous counties) should strengthen the organization and leadership of judicial expertise within their respective administrative areas, guarantee the funds for judicial expertise management services, and support the healthy development of judicial expertise.
In view of the supervision responsibilities of the two-level judicial administrative departments in urban areas, the Regulations clarify that the municipal judicial administrative department is responsible for the supervision and management of judicial authentication institutions, judicial authenticators and their practice activities within the administrative area of this Municipality, and establishes and improves the convergence mechanism of judicial authentication management and use together with investigation organs, procuratorial organs and judicial organs, strengthens the informatization construction of judicial authentication, carries out information exchange and work coordination, and realizes information sharing and data interconnection of licensing matters, reward and punishment records, integrity evaluation, capacity evaluation and authentication entrustment, and regulates and guarantees.
As a judicial authentication institution affiliated to the municipal judicial administrative department, it is the key to compact the internal management responsibility. The "Regulations" stipulate that judicial authentication institutions shall provide necessary conditions and material guarantees for the practice activities of judicial authenticators of their own institutions; To be responsible for the training and daily management of the judicial appraisers of this institution; Publicize relevant information in a prominent position in the practice place according to the regulations; In accordance with the relevant provisions of the state and this Municipality, establish internal management systems such as major event reporting, appraisal quality control, charging, filing and complaint handling.
At the same time, the Regulations also clarify that the judicial administrative departments of counties (autonomous counties) should be responsible for the daily supervision and management of judicial authentication institutions, judicial appraisers and judicial authentication activities within their respective administrative areas, and the departments of development and reform, education, science and technology, human resources and social security, ecological environment, health and hygiene, market supervision and data should do a good job in the relevant management of judicial authentication according to law.
Give play to the role of expert review
In view of the controversial and difficult identification matters, the Regulations, based on the actual judicial identification work in Chongqing, have revised and improved the conditions for the members of the judicial identification expert committee on the basis of continuing the original Regulations that "the municipal judicial identification expert committee established by the municipal people’s government provides advice on major and difficult technical issues and identification disputes in judicial identification", and stipulated that "the municipal judicial identification expert committee is rich in working experience, strong in professional ability, good in professional ethics and high-level.
At the same time, the "Regulations" clarify the conditions for issuing expert advice. For the difficult identification matters that are controversial in the initial identification, or the identification matters that are still controversial after two identifications, the case-handling organ may entrust the Municipal Judicial Appraisal Expert Committee to issue expert advice.
For complex, difficult and special technical problems involved in the identification process, the Regulations propose that judicial authentication institutions can consult experts in related professional fields outside their own institutions, but the final appraisal opinions should be issued by judicial appraisers of their own institutions.
In terms of the legal liability of judicial authentication institutions, the Regulations stipulate that judicial authenticators who have participated in the same authentication matter or who have provided advice on the same authentication matter as experts or participated in the court cross-examination of the same authentication matter shall not be assigned for authentication; Offenders will be ordered to correct by the judicial administrative department and given a warning; Illegal income, confiscate the illegal income; If the circumstances are serious, a fine of not less than 10,000 yuan but not more than 30,000 yuan shall be imposed.
In addition, the "Regulations" also stipulate the establishment and improvement of an expert evaluation system. If a legal person or an unincorporated organization applies for registration as a judicial authentication institution, the municipal judicial administrative department shall organize experts to evaluate its practice place, testing laboratory, instruments and equipment. Where an individual applies for registration as a judicial appraiser, the municipal judicial administrative department shall organize experts to carry out appraisal and evaluation of legal and regulatory knowledge, technical knowledge and professional ability.
Clarify the requirements for accepting cases
In the specific practice of judicial expertise, some judicial expertise institutions or judicial appraisers have an interest in the case itself, which may adversely affect judicial expertise. In this regard, Panden said that the "Regulations" clarify the matters that will not be accepted and the judicial appraisers may not be appointed. For example, the judicial appraisal institutions will not accept the entrusted appraisal matters beyond the scope of their judicial appraisal business; A judicial authentication institution or an organization that establishes a judicial authentication institution is a party to the case involved; The legal representative or person-in-charge of the judicial authentication institution has an interest in the judicial authentication entrusted by the involved cases and parties.
In order to ensure the fairness and justice of judicial authentication, the Regulations stipulate that after accepting the entrustment of authentication, a judicial authentication institution shall appoint a judicial appraiser who has the qualification to practice the authentication matter, but shall not appoint a judicial appraiser who has participated in the authentication of the same authentication matter, provided advice on the same authentication matter as an expert, and participated in the court cross-examination of the same authentication matter.
In view of the client’s special requirements for judicial appraisers, the Regulations stipulate that qualified judicial appraisers can also be selected from this institution for appraisal after mutual agreement. A judicial authentication institution shall assign two judicial authenticators to authenticate the same authentication matter. For complex, difficult or special identification matters, multiple judicial appraisers may be appointed for identification, and at least one judicial appraiser has a senior professional title.
The "Regulations" also clarify the cases where judicial authentication institutions refuse to accept judicial entrustment, such as the use of authentication is illegal or violates social morality, the authentication requirements do not conform to the professional rules of judicial authentication or relevant authentication technical specifications, and the authentication requirements exceed the technical conditions or authentication ability of the institution.
Standardize the scope of "four categories"
The Decision of the National People’s Congress Standing Committee (NPCSC) on the Management of Judicial Expertise defines judicial expertise as "four categories" in litigation activities, and the standardization of "four categories" is conducive to ensuring litigation justice and improving litigation efficiency.
Panden pointed out that there are a lot of "four categories" outside litigation activities in the practice of appraisal, but there is a lack of clear and unified norms. In order to strengthen the management of the "four categories" of appraisal outside litigation activities, the "Regulations" have made guiding provisions in combination with the actual appraisal work in this Municipality.
The "Regulations" clarify that, in addition to litigation activities, the activities of judicial authentication institutions and judicial appraisers to carry out forensic identification, material evidence identification, audio-visual material identification, environmental damage identification and other identification matters determined by the judicial administrative department of the State Council in consultation with the Supreme People’s Court and the Supreme People’s Procuratorate shall be implemented with reference to these Regulations.
Ji Yunqi, an associate professor at Southwest University of Political Science and Law and an expert in audio-visual recording identification in Sichuan-Chongqing forensic expert database, said that the Regulations, on the basis of public consultation, combined with the new situation of forensic identification work, aimed at improving quality and efficiency, and focused on more scientific and reasonable norms and guidance from judicial identification institutions and appraisers, judicial identification activities, services and supervision, legal responsibilities, etc., with the aim of providing guarantee for improving the quality and credibility of judicial identification and maintaining and promoting judicial justice.
"The" Regulations "explored and innovated in establishing and improving the linkage mechanism between the management and use of judicial expertise, giving full play to the role of the expert committee of judicial expertise, and clarifying matters such as not accepting entrustment and not appointing judicial appraisers, and at the same time made corresponding regulations on the’ four categories’ of expertise outside litigation activities. The revision of the "Regulations" reflects the positive actions of the competent authorities to keep pace with the times and the practical characteristics of Chongqing. " Ji Yunqi said.