During the process, the arbitral tribunal occasionally raises the need for an examination. In an arbitration court or any other, she is needed in order to obtain an expert opinion, which can later be used as evidence.
The concept
Before figuring out the order of appointment and conduct, it is worthwhile to understand what constitutes an examination in an arbitration court.
So, forensics is a process that consists of conducting research and expert opinion. An examination is carried out if it is necessary to get an answer to a question in that area in which special knowledge is required. The questions need answers in order for the inquiry to be conducted in full and the results obtained can be used in a specific case.
According to the results of the examination in the arbitration court, an expert opinion is issued. This is a written document that reflects the results and progress of a study conducted by an expert.
Content of the conclusion
An examination in an arbitration court always ends with the issuance of an opinion. So what should be indicated in this document?
- The place where the examination was carried out, and the time it was held.
- The grounds on which it was decided to conduct an examination.
- Information about the person or body that appointed this examination.
- Information about the expert. This includes surname, name and patronymic, specialty, education, length of service, academic degree or academic rank, position that he occupies. The document should also reflect information about the state forensic institution.
- A mark-warning of the expert that he is responsible for giving false testimony.
- Questions that were posed to a panel of experts or an expert.
- Case materials or research objects that are provided to an expert for conducting an examination.
- Information about the people who participated in the examination.
- Content and research results.
- A conclusion in which it must be indicated which methods have been applied.
- Justification and formulation of conclusions, evaluation of results. All this should answer the questions posed.
But the content of the forensic examination in the arbitration process is not limited to this. The conclusion must be accompanied by materials that show the conclusion of the commission or one expert.
Documents in which the conditions, progress and results of the examination are displayed remain in storage at a forensic state institution. As soon as the body or person who appointed the forensic examination in the arbitration process, require the documents drawn up, they are provided and attached to the case.
Expert organizations
Forensic examination can be carried out by:
- forensic government agencies;
- expert non-governmental organizations (for those involved in forensic medical examinations, a license is needed, for other types of examinations it is not required);
- persons who have the necessary knowledge. This also includes knowledge in the field of foreign law.
The conclusion of the non-governmental organization is undeniable. The exception is cases when a repeated examination is entrusted to a state institution.
Who can appoint
The appointment of expertise in the arbitration process may be carried out:
- the person who is involved in the case (for this it is necessary to petition the court of first instance or appeal);
- court of Arbitration;
- prosecutor, bodies that protect state and public interests, third parties.
The study is conducted when the appointment of an examination is necessary in order to verify the authenticity of evidence. In addition, it is carried out, if prescribed by law, provided by the contract and is necessary as a second or additional.
Examination Procedure
The appointment of expertise in the arbitration process has its own order.
So, during the preparation of the case for trial, the judge decides on the appointment of an examination. Therefore, it must be carried out in accordance with Article 82 of the Arbitration Procedure Code of our country. The decision is made on the basis of the petitions of the participants in the case or with their consent.
Before making a decision, the judge asks the participants in the case to whom they would instruct the forensic examination. And also from the participants it is required to provide questions to which the examination, in their opinion, should answer. When forming a list of questions, participants are required to understand that questions should require special knowledge from an expert.
Before conducting the assigned forensic examination in the arbitration process, the judge must know how much it will be conducted, whether such an examination is possible and who will conduct it. In order to receive this information, the court may postpone the trial or take a break.
According to the 136th article of the Arbitration Procedure Code, up to five days are allowed for a break.
During the preliminary hearing, the judge may also announce a five-day break.
If you need to check any data that was established during the proceedings, the court may postpone the proceedings or take a break. The basis for this will be Articles 158 and 165 of the Code of Arbitration Procedure.
When the court decides to appoint an examination, it is obliged to send the head of the expert institution a ruling on a break, adjournment or an extract from the minutes of the meeting.
Definition of appointment of examination
The decision on the appointment of the examination in the arbitration process shall contain the surname, name and patronymic of the expert, as well as the grounds on which the examination was appointed.
If the examination was entrusted to a person who is not an expert as such, then the definition must, in addition to general data, indicate the specialty, education, work experience and position.
When the examination is carried out in a non-governmental organization, the court finds out how professional the expert is. The definition shall also indicate the name, patronymic, last name, name of the organization.
Questions for the expert
Judicial examination in civil and arbitration proceedings is carried out in order to get answers to questions of interest. The fourteenth article of the Arbitration Procedure Code governs this point, as well as issues related to foreign law.
Any cases that are not indicated in the article are not legal in nature, which means that they do not affect the legal consequences after evaluating the evidence.
Only the arbitral tribunal that accepted the case can determine the content and range of issues for examination.
Documents and materials for the expert
The order of the examination in the arbitration process includes the provision of documents to the expert. When it is not the document itself that needs to be examined, but the information that it contains, certified copies of the document are provided to the expert.
If it is not possible to transport the object for research to the institution, then the person who ordered the examination must ensure unhindered access to this object and the conditions for the research. This rule also applies if the object for research is located with third parties.In case of refusal of such persons to provide the object, the court shall require the latter in the manner provided for by Article 66, its fourth part of the Code of Arbitration Procedure.
During the examination in the arbitration process, material evidence or documents may be damaged or used to some extent for the examination, but all this is possible only with the permission of the body or person who appointed the study.
If documents or material evidence have been damaged or damaged with the consent of the subject of the examination, the expert or expert institution is not obligated to indemnify the owner.
Dates
The court can determine the exact date by which it needs results. It may indicate the period during which the examination should be carried out.
To extend the examination period, the court may resume proceedings and suspend it again. In this case, a new deadline for the study.
If the court has decided that there is no need to continue the investigation, then it can make a decision to resume the work. Then it is necessary to make a decision to terminate the study.
Types of Expertise
There are several types of examinations in the arbitration process. Most often, an examination is carried out:
- construction;
- technical;
- construction and technical;
- handwriting;
- accounting;
- patent law;
- merchandising;
- land surveying;
- economic;
- auto goods research;
- estimated;
- automotive;
- chemical engineering;
- forest pathological;
- engineering and other.
As can be seen from the list, the type of forensics depends on the field of knowledge in which the study is needed.
Also, examinations are divided into sole, complex and commission. This division is due to the number of experts.
Most often, a single examination is applied, but if there are any difficulties in determining the circumstances, then several experts from the same field are involved for a correct assessment.
An example is the psychological and psychiatric examination. A psychologist and a doctor are involved in its implementation. The latter identifies the disease, and the first conducts a study of the personality characteristics of a person, and how a confirmed disease affects the perception and awareness of behavior. Ecological examination is also carried out comprehensively, chemists, ecologists and biologists participate in it.
Depending on the quality of the examination, another and additional examination is distinguished. To appoint a second examination, it is enough that the participants in the process do not agree with the results of the first study. An additional examination is appointed if the expert has not fully disclosed the issue or issued an incomplete opinion. In addition, the difference lies in who conducts the examination. Another expert is recruited for the second study, while the same expert conducts the additional examination.
To conduct an additional examination, you need a foundation. As mentioned above, this is an ambiguity of the expert’s conclusions. But if the specialist explains everything during the interrogation, then an additional study will not be needed.
Appointment Procedure
The procedure for the appointment of forensic examination in the arbitration process is carried out in accordance with the laws governing it.
The arbitration process is characterized in that only persons who participate in the process are required to prove guilt or innocence. Therefore, the examination is carried out only at the request of the participants in the process. The court cannot attract experts without a petition. Laws regulate cases where the court has the right to itself appoint an examination. All of them are described above.
In practice, examinations are rarely prescribed during a trial, and therefore a person needs to worry about this himself.One has only to file a request for an expert examination in the arbitration process. They cannot but consider it, and therefore an examination will be appointed. Consequently, the procedure for the examination in the arbitration process depends on the person who is interested in conducting the study.
Rights and obligations of the head of an expert institution
The head of the institution must:
- After receiving a decision or a decision on the examination, to entrust the execution of the expert commission or one expert. It is important that the specialist’s knowledge fully coincide with the questions posed.
- The manager must also explain his employees the rights and obligations.
- Warn the specialist who will conduct the examination of the responsibility for giving knowingly false conclusions. The manager must take the signature from the employee and attach it to the expert’s opinion.
- Provide control over the examination in the time frames that were appointed by the court, as well as the quality of the study. At the same time, the principle of specialist independence should not be violated.
- After the studies are completed, he must send the results to the person or body that appointed the examination.
- Do not disclose information that became known during the ongoing research. This includes state and commercial secrets, as well as information that limits the constitutional rights of citizens.
- Provide appropriate conditions for the examination.
- Provide equipment, materials, or information so that the study is conducted in a quality manner.
- Must comply with sanitary standards and safety during the study.
- To control the safety of case materials and objects for research.
The head is not entitled during an examination in civil and arbitration proceedings:
- to demand case materials and objects for examination without a corresponding decree or determination.
- to involve people who do not work in this institution to conduct research. We are talking about cases where this is done without the consent of the persons or authorities who appointed the examination.
- give the specialist instructions that predetermine his conclusions on a specific examination.
The head has the right:
- Refuse to carry out the examination if the institution lacks a specialist in the required field, equipment for conducting the study or if it is not possible to create special conditions. Moreover, the refusal must be motivated.
- To petition the persons or bodies that appointed the examination that it will have to involve a person from the outside.
- To organize the study together with other institutions that were indicated in the determination or the decision on the examination.
- Transfer part of the duties that are associated with the implementation of the study to your deputy or the head of the structural unit.
- Demand from the authorities or the person who ordered the study, if there is transportation of objects after examination, compensation for storage in the transport organization, storage in the institution beyond the prescribed time, liquidation of the consequences of fires, explosions and other emergencies arising from the location of the research object in the institution .
Rights and obligations of an expert
An expert must:
- take into production the research that he was commissioned by the head;
- to conduct a full examination of all provided objects and materials and give an objective conclusion on them;
- draw up a written appeal to the body or person who ordered the examination, and explain that it is not possible to carry it out, because it lacks knowledge, materials or documents are not suitable for work, etc.
- not to disclose the information that the expert learned during the study;
- ensure the safety of case materials or objects of expertise.
An expert cannot:
- accept orders for expertise from people other than their own leader;
- work as a non-governmental expert;
- enter into personal relations with the participants in the case, if this may affect its objectivity;
- to collect materials for judicial research;
- communicate the results of the examination to anyone other than the person who appointed it;
- change the properties of objects of examination or destroy them, if permission was not given.