| 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 Alfred Nobel University Journal of Law. 2024. №2(9). С. 57-74. |
Annotation.
The article reveals the concept and essence of an expert opinion on conformity assessment (independent professional expertise) in the field of inspection: scientific and legal expertise, scientific and economic expertise, scientific and technical expertise, comprehensive scientific expertise. The author compares the legal characteristics inherent in the opinion of a legal expert (expert in the field of law), an expert opinion of a forensic expert, an expert opinion of a scientific and scientific-technical expert and an expert opinion on conformity assessment (independent professional expertise) in the field of inspection: scientific and legal expertise, scientific and economic expertise, scientific and technical expertise, and comprehensive scientific expertise. The author notes the peculiarities of legal regulation in Ukraine of conformity assessment (independent professional expertise) in the field of inspection: scientific and legal expertise, scientific and economic expertise, scientific and technical expertise, comprehensive scientific expertise, legal expert (expert in the field of law), forensic expert, scientific and scientific and technical expertise and its results (expert opinion). It is stated that an example of the conceptual approximation of expert activity in Ukraine to international standards is an inspection body (conformity assessment body) accredited in accordance with the requirements of DSTU EN ISO/IEC 17020:2019 (EN ISO/IEC 17020: 2012, IDT; ISO/IEC 17020:2012, IDT), certified in accordance with the requirements of ISO 9001:2015, IDT (DSTU ISO 9001:2015), ISO 37001:2016, IDT (DSTU ISO 37001:2018), DSTU ISO/IEC 27001: 2023 (ISO/IEC 27001:2022, IDT), which currently offers conformity assessment services (independent professional expertise) in the field of: scientific and legal expertise, scientific and economic expertise, scientific and technical expertise, comprehensive scientific expertise. It is noted that the result of the expert activity of such a body is an expert opinion. The author analyses scientific publications and highlights the controversial issues of expert opinion, in particular: expert error, positive and negative opinion, copyright protection of expert opinion.
The expert opinion on conformity assessment (independent professional examination) is distinguished by its characteristic features: (1) it is created at the request of the customer of the examination on contractual terms, (2) it is an intellectual creation of experts, which is the result of the process of their mental activity, (3) it is unique and individual only to the object of study, since it corresponds to the task of the customer of the examination and the analysis of the actual circumstances and evidence provided by the customer of the examination to confirm these circumstances; (4) is a document on the conformity assessment (independent professional examination) of the actual circumstances and their legal consequences, the occurrence and development of which were reported by the customer of the examination and investigated on his/her behalf by applying specialised legal and/or specialised knowledge.
The internal structure of the expert opinion on conformity assessment (independent professional examination), consisting of four sections, is considered appropriate: 1. Introductory part: 2. Research part. 3. Results of conformity assessment (independent professional expertise). 4. Signatures of the parties. The introductory part is detailed in the following subsections: (1) the customer of the expertise; (2) the objectives of the expertise; (3) the organiser of the expertise; (4) the grounds for organising the expertise; (5) the grounds for conducting the expertise; (6) the competence and experience of the experts to conduct the expertise; (7) the experts conducting the expertise; (8) the category and duration of the expertise; (9) the principles of expertise; (10) the methods and procedures of the expertise; (11) the objects of the expertise; (12) requirements for the result of the expertise; (13) responsibility of the participants of the expertise (the customer of the expertise, the organiser of the expertise, the expert); (14) documents submitted for the expertise; (15) documents created and received during the expertise, in addition to those provided by the customer of the expertise; (16) regulatory legal acts used in the expertise; (17) scientific works and reference literature used in the expertise. The research part includes: (1) a description of the factual circumstances and an outline of the statement formulated by the expert’s client in accordance with the task set by him; (2) substantiation and conclusions with an assessment of the statement formulated by the expert’s client in accordance with the task set by him. The results of the conformity assessment (independent professional examination) of an expert opinion are a logical summary made by experts based on the review and analysis of the examination materials. The final part of the expert opinion ‘Signatures of experts’ should include, in addition to the physical signatures of the experts, a statement that the experts confirm the completion of the expertise by their signatures, certify the finality of the results obtained, which may be taken into account by the competent (responsible) person when making a decision, if it is necessary to use specialised legal and/or specialised knowledge. The proposed structure of the expert opinion outlines its validity, i.e., allows to establish the relevance and competence of the expert’s opinion by its content. The author formulates the position that the structural form of an expert opinion is an intellectual creation that distinguishes the uniqueness of the results of an expert examination, for example, in terms of quality, and therefore the development and unification of its structure in the private sector is advisable only for the inspection body’s own needs. It is proved that the structural form of an expert opinion and the expert opinion itself are objects of copyright protection. It is concluded that an expert opinion is the result of human mental activity, is unique and individual to a particular object of research; the use or dissemination of an expert opinion to other similar circumstances in which no research was conducted is inadmissible; the study of other similar circumstances ends with an expert opinion, which is also unique and individual to the relevant circumstances.
