Forensic examination is an established institution of procedural law. However, until recently, the bulk of forensic examinations were carried out only in criminal cases. Despite the existing legal norms, in the civil and arbitration process forensic examinations were rarely appointed. It seems to us that this practice was due to the following reasons:
1. The existing system of the state of other expert institutions, and forensic examinations were carried out mainly in expert institutions, was focused on criminal proceedings.
2. They demanded practice and, accordingly, the so-called "traditional forensic" examinations developed faster: ballistic, traceological, fingerprinting, etc., of which only handwriting and technical-forensic examinations of documents were appointed in civil cases. In civil cases, forensic psychiatric examinations were also appointed.
3. Judges of courts of general jurisdiction, arbitration courts were not sufficiently clear about the possibilities of using special knowledge in evidence, often being true to the prevailing stereotypes, according to which expertise is an integral part of the criminal process.
The development of the institute of special knowledge in civil proceedings and primarily the development of forensic examination as the main form of their use goes in the following areas:
- Improvement of civil and arbitration procedural legislation, causing the expansion of the scope of application of special knowledge;
- development of a general theory of forensic expertise in terms of improving the methodology of expert research; clarification of the content of the tasks of forensic examination in civil proceedings;
- empowering expert research and increasing the evidentiary value of expert conclusions in civil proceedings;
- the formation of new species, genera and classes of forensic examinations, due to the integration in the sphere of civil justice the achievements of new branches of knowledge;
- Improving the organization of the production of forensic examinations, the material base of expert institutions, training and retraining of forensic experts;
- ensuring the possibility of performing alternative expertise in state and non-state expert institutions, private experts;
- Awareness of judges, lawyers and other interested parties about modern forensic examination capabilities in civil cases1.
While improving the procedural legislation, a unified approach to the problems of forensic examination in different types of process is necessary, since the solved expert tasks, objects of expertise, methods and techniques of expert research do not depend on the procedural procedure, but are determined by the type and type of forensic examinations. In this regard, there should be uniform and criteria for assessing the conclusions of an expert by the courts of general jurisdiction, arbitration courts, investigators, officials considering cases of administrative offenses. A comparative analysis of articles of the CCP, AIC, CCP and CAO in the part relating to forensic examinations shows that the basis and procedure for the appointment of forensic examination, the rights and obligations of experts in all codes are quite close.
In the CCP and the AIC, great attention is paid to the use of special knowledge. The process of appointment (article 80 of the Code of Civil Procedure, article 82 of the agroindustrial complex) and examination (article 84 of the Code of Civil Procedure, article 83 of the agrarian and industrial complex), the content of the expert opinion (article 86 of the Code of Civil Procedure, article 86 of the agrarian and industrial complex) are regulated in detail. Finally, the question of the procedural regulation of the production of complex expertise (Article 82 of the CCP and Article 85 of the APC) was resolved.
Forensic examination in civil proceedings from the examinations carried out in other spheres of human activity, distinguish the following features:
- preparation of materials for the examination, appointment and conduct of it in compliance with the special legal regulations that determine (along with the relevant procedure) the rights and obligations of the expert, the entity that appointed the examination, participants in the civil and arbitration process;
- conducting research based on the use of special knowledge;
- giving an opinion having the status of a source of evidence.
The development of market relations, which led to an increase in the number of disputes of economic entities, dictates the need for the production of judicial economic examinations. Unfortunately, judges often do not see the difference between appraisal and auditing activities and the production of forensic economic examination, which leads to numerous procedural violations.
According to the Federal Law of 30.12.2008 No. 307-ФЗ “On Auditing”, an audit is an independent audit of the accounting (financial) statements of an audited entity in order to express an opinion on the reliability of such statements. The audit report is an official document intended for users of the financial (accounting) statements of the audited persons, prepared in accordance with this rule and containing the opinion of the audit organization or individual auditor expressed in the prescribed form on the reliability of the audited entity in all material respects and financial statements. the procedure for conducting accounting in accordance with the legislation of the Russian Federation (Rule (standard) No. 6. Auditor's report on finance financial (accounting) statements, approved by the Government of the Russian Federation of September 23, 2002 No. 696).
According to clause 2.3 of the Rules (standard) of auditing activities "Characteristics of services related to auditing and requirements for them", approved by the Commission for Auditing under the President of the Russian Federation on March 18, 1999 Protocol No. 2, among services compatible with conducting an obligatory audit by an economic entity inspections, expert services, arbitration and conciliation services. The conclusion of an audit organization on a special audit assignment, carried out on behalf of state law enforcement agencies, was equivalent to an examination conclusion, appointed in accordance with the procedural legislation of the Russian Federation (see Audit Organization Regulation on Special Audit Assignments Rule (Standard) of Auditing Organization, ”approved by the audit activity under the President of the Russian Federation on October 10, 1999, protocol No. 6).
As for appraisal activity, the legislator refers to it as the professional activity of appraisal subjects aimed at establishing market or other value in relation to objects for appraisal (Article 3 of Federal Law No. 135-FZ of July 7, 1998 “On Appraisal Activities in the Russian Federation”) .
The adoption of the Law on forensic expertise, in Art. 9 which gives a clear definition of forensic examination, as well as the CCP and the AIC, which states that the only procedural form of examination of evidence using special knowledge is forensic examination, clarified the issue of delimitation of forensic examination, audit and evaluation. But until now, many judges (especially arbitration courts), instead of forensic examination, appoint an assessment or involve audit firms, which, instead of an expert opinion, make available to the court an appraisal report or an auditor's opinion. Of course, auditors and appraisers can be involved in the production of forensic examinations, like all other professionals who carry out forensic examinations outside expert institutions, but they should be guided by the rules of procedural law.
Что бы оставить комментарий войдите
Комментарии (0)