| Romanovska L.А., Candidate of Law, Director, Chief Research Fellow in the field of jurisprudence at IPE LLC, https://orcid.org/0009-0004-6306-6936 Law & Society. Vol.5 (2022). P.76-87. URL: https://scijournals.pnu.edu.ua/index.php/lsp/issue/view/309. |
Annotation.
The article provides a comparative legal concept of such legal categories as: legal expert (expert in the field of law) and expert on conformity assessment (independent professional expertise).
The purpose of the publication is to substantiate the doctrinal concept of the expediency of absorbing the legal institution “legal expert” by the new legal institution “conformity assessment expert (independent professional expertise)”, which covers a wider scope of activities of an independent expert (independent professional expertise) in Ukraine, including legal issues, by providing an opportunity for independent experts to apply knowledge to practical situations, if there is a need for such knowledge and there is a desire to obtain an expert opinion for this purpose; to prove the expediency of introducing the legal institution of “conformity assessment expert (independent professional expertise)” as an alternative to forensic expertise and its possible functioning in parallel with forensic expertise.
The object is legal relations arising in the course of independent professional examinations, as well as legal relations related to the participation of a legal expert (expert in the field of law) in court proceedings and at the stage of pre-trial proceedings; subject matter – current positive law, judicial practice, scientific publications.
The author notes the existing scientific debate on the statutory requirements for a legal expert (expert in the field of law), in particular, critical scientific views on the statutory requirement of “recognition as a legal expert” as such which has no mechanism for its implementation and is unreasonable and inappropriate are noted. The author supports the legal interpretation of the use of different terms “legal expert” and “expert in the field of law” in the procedural legislation of Ukraine, which are, on the contrary, identified by the legislator in terms of their content.
There is a positive evolution of the court’s legal position towards the opinion of a legal expert (expert in the field of law), the conclusion of scientific expertise, and currently the court perceives the scientific conclusion as an explanation of the party in the case.
The author proves that it is possible to introduce into the procedural legislation of Ukraine and to establish an independent professional expert activity, namely, the legal institute “Conformity assessment expert (independent professional expertise)” with the absorption of the legal institute “Legal expert (expert in the field of law)”, whose full-fledged functioning is hampered by the lack of legal mechanisms and existing legal shortcomings not taken into account by the legislator, as well as by the narrow scope of powers. The functioning of the legal institute “Conformity assessment expert (independent professional expertise) is seen as a parallel to forensic expertise and as an alternative to it. The main principles of conformity assessment (independent professional expertise) are: independence, impartiality, legality and objectivity. The requirements for the eligibility of a conformity assessment expert (independent professional expertise) are: (1) professional qualification (measured by a scientific degree); (2) professional competence (measured by: length of research experience; experience in conducting independent professional expertise on issues similar to the scientific speciality; availability of such indicators of research work as scientific publications, monographs, collections of scientific papers, abstracts of scientific and practical conferences, round tables; continuous professional development at educational events, trainings, seminars, etc.); (3) authorisation by the administrative act of the head of the expert institution to conduct an independent professional examination according to annual indicators of confirmation of professional competence; (4) inclusion in the accreditation passport of the expert institution in accordance with the requirements of DSTU EN ISO/IEC 17020: 2019 (EN ISO/IEC 17020:2012, IDT; ISO/IEC 17020:2012, IDT). The article focuses on the obligation of an expert institution to conclude a professional liability insurance contract for damage caused to third parties by the results of expert activity.
