Act To Amend The Judicial Code As Regards Expertise And Restoring Article 509Quater Of The Penal Code (1)

Original Language Title: Loi modifiant le Code judiciaire en ce qui concerne l'expertise et rétablissant l'article 509quater du Code pénal (1)

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Posted the: 2007-08-22 Numac: 2007009537 FEDERAL JUSTICE PUBLIC SERVICE May 15, 2007. -Act to amend the Judicial Code as regards the expertise and restoring article 509quater of the penal Code (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: chapter I:.
-Available general Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER II. -Changes of Code judiciary art.
2. an article 875bis, worded as follows, shall be inserted in the Judicial Code: «art.» 875bis. judge limits the choice of the taking of evidence which is sufficient for the resolution of the dispute, emphasizing the extent the easiest, fastest and least expensive. » Art. 3 II is inserted in the fourth part, book II, title III, Chapter VIII, section VI of the same Code, a sub-section lre containing article 962, which the title reads as follows: «sub-section. 1st. General provision. » Art. 4. article 962 of the same Code is supplemented by a paragraph 2, as follows: "II is point required to follow the advice of experts if his belief is opposed."
S. 5 are repealed the code: 1 ° articles 963 and 964;
2 ° section 965, as amended by the law of June 24, 1970.
S.
6. it is inserted in the same section of the same Code a subsection 2 which will contain items 966 and 971 unchanged, the title reads as follows: 'sub-section 2. Of the disqualification of the experts. » Art. 7. article 969 of the Code is replaced by the following provision: "no challenge may be proposed after the installation meeting, or, failing that, after the start of the work of the expert, unless the cause of the recusal no has revealed later on in part."
S. 8 II is inserted in the same section of the same Code a subsection 3 which will contain articles 972 to 983, which the title reads as follows: "sub-section 3.
The conduct of expertise. » Art. 9. article 972 of the same Code is replaced by the following provision: § 1. The decision ordering the expertise include at least:-an indication of the circumstances which necessitate the expertise and the potential designation of several experts.
-indication of the identity of the expert or experts designated;
-a precise description of the mission of the expert;
-indication of the date of the installation meeting, at least that the judge waived, with the agreement of the parties.
The decision shall be notified by the Registrar in accordance with article 973, § 2, paragraph 3.
After this notification, the expert has eight days to:-refuse the mission, if it so wishes, substantiated its decision;
-If no meeting installation was planned: communicate the place, day and hour of the commencement of its work.
The expert shall notify the parties by registered letter to the position and the judge and advice by missive letter.
§ 2. The installation meeting was held in the Council Chamber, before the judge who ordered the expertise or who is responsible for the supervision.
The parties come before the judge. The expert can be reached by telephone or by any other means of telecommunication, unless one of the parties or the judge asked his personal appearance before the latter.
The decision taken at the end of the meeting of specific installation:-the possible adaptation of the mission;
-the place, day and hour of the future work of the expert;
-the need for the expert to call or not to technical advisers;
-an estimate of the overall cost of expertise or, at the very least, calculation of costs and fees of the expert and any technical advisors;
-the amount of the provision;
-the reasonable part of the provision can be released for the benefit of the expert;
-the time limit within which the parties can make representations with respect to the provisional opinion of the expert;
-the time limit for submission of the final report.
Failing inaug, the judge may include the above entries in the decision ordering!' expertise.
The notification of this decision by the clerk takes place in accordance with article 973, § 2, paragraph 3. » Art. 10. in the same Code, it is inserted an article 972bis, worded as follows: «art.» 972bis. § 1.
The parties are required to cooperate in the expertise. Otherwise, the judge may draw any consequence as it deems fit.
No later than the meeting of facility and, failing that, at the beginning of the work, the parties challenge the expert folder inventoried gathering all relevant documents.
§
2. The convening for follow-up work is done pursuant to section 972, § 1, last paragraph, except if the expert has been authorised by the parties and the advice to have recourse to another mode of convocation.
If all parties or their counsel requested a postponement, the expert is required to consent. In all other cases, it can refuse or make the report and notify its decision to the judge by missive letter.
The expert draws up a report of the meetings that it has organized.
II sends a copy to the judge, the parties and advice by missive letter, and, as appropriate, to the parties which have been in default, by registered letter. » Art. 11. article 973 of the Code is replaced by the following provision: S. 973 § 1. The judge who ordered expertise, or judge designated for this purpose, following the conduct thereof and shall ensure in particular respect for deadlines and its contradictory nature.
The judge may, for reasons of urgency, reduce the periods provided by this subsection or waive certain modes of convening experts.
Experts undertake their mission under the control of the judge, who may at any time, ex officio or at the request of the parties, attend operations. The Clerk shall inform the experts, the parties and their advice by missive letter and, where applicable, the parties who have defaulted by judicial fold.
§ 2. All disputes relating to expertise arising during the between the parties or between the parties and experts, including the request for substitution of experts and any dispute relating to the extension or the extension of the mission, are set by the judge.
For this purpose, the parties and experts may apply to the judge by missive letter, motivated. The judge immediately ordered the convening of stakeholders and experts.
Within five days, the Clerk shall notify the parties and their advice by missive letter, as well as the expert and, where appropriate, parties who have defaulted by judicial fold.
The appearance in the Council Chamber takes place in the month following the convening. The judge rules, by reasoned decision within eight days.
The Clerk shall notify this decision in accordance with paragraph 3. In the event of replacement demand, the decision is notified, as appropriate, to the expert confirmed the unloaded expert or the new expert designated by judicial fold. » Art. 12. article 974 of the same Code is replaced by the following provision: «art.» 974 § 1. The deadline for submission of the final report, if more than six months, the expert address every six months an interim report on the progress of its work to the judge, the parties and advice. This status refers to:-the work already carried out;
-the work carried out since the last intermediate report;
-the work remaining to achieve.
§ 2. Only the judge may extend the time for submission of the final report. For this purpose, the expert may apply to the judge indicating the reason why the deadline should be extended.
Judge refuses to extend the time limit where it considers that an extension is not reasonably justified. II motivates this decision.
§ 3. Exceeded the prescribed time and in the absence of avenue extension in time, the judge shall order ex officio the convening, in accordance with article 973, § 2. » Art. 13. article 975 of the Code is repealed.
S. 14. article 976 of the same Code is replaced by the following provision: «art.» 976. at the end of its work, the expert sent to read to the judge, the parties and their boards, its findings, which he already joined a provisional opinion. Lack inaug, the expert sets a reasonable time taking into account the nature of the dispute, in which the parties must make their comments.
The expert receives the observations of the parties and their advisers before the expiry of this period. The expert takes no account of the comments it receives late. These observations can be excluded ex officio of the proceedings by the judge. » Art.
15. article 977 of the same Code is replaced by the following provision: «art.» 977 § 1. The expert attempts to reconcile the parties.
If the parties to reconcile, the expert notes that his expertise has become without object. The parties may act in accordance with section 1043.
§ 2. The finding of conciliation, coins and notes of the parties and a statement of expenses and fees of the expert shall be deposited at the registry.
The day of the filing of the statement of conciliation, the expert sends, by registered mail, a copy of the statement of conciliation and a statement of costs and fees detailed to the parties, and by missive letter to their boards. » Art.
16. section 978 of the same Code is replaced by the following provision: «art.» 978 § 1. The final report is dated and recounts the presence of the parties during work, their verbal statements and their requisitions. II also contains the statement documents and the notes given by the parties to the experts; It can reproduce them only to the extent necessary for the discussion.

The report is, on pain of nullity, signed by the expert.
The signature of the expert is, on pain of nullity, preceded to read oath: "I swear completing my mission in honour and conscience, with accuracy and probity."
or "Ik dat ik mijn opdrachten zweer in era in geweten, nauwgezet in eerlijk vervullen heb. ';
or 'Ich schwore, dass ich den mir erteilten Auftrag auf Ehre und Gewissen, genau und erlich erfüllt habe.' § 2. The minute of the report, documents and notes of the parties so that detailed a statement charges and fees of the expert shall be deposited at the registry.
The day of the filing of the report, the expert sends, by registered mail, a copy of the report and a statement of costs and fees detailed to the parties, and by missive letter to their boards. » Art. 17. article 979 of the same Code, amended by the law of May 27, 1974 and August 3, 1992, is replaced as follows: «art.» 979 § 1.
If requested by a party, the judge may replace the expert who does not properly fulfil its mission.
If the parties jointly so request, the judge must replace the expert.
If none of the parties is requested, the judge may order ex officio the convocation referred to in article 973, § 2.
J. motivates its decision of replacement and shall immediately make the appointment of a new expert.
§ 2. The has replaced expert for a period of 15 days for filing at the registry documents and notes of the parties and a statement of charges and fees detailed.
The day of the filing, the expert sends to the parties, by registered mail, and the advice of the parties, by simple letter, a copy of the statement of charges and fees detailed. » Art. 18. article 980 of the Code is replaced by the following provision: «art.» 980. when the expertise is ordered by default in respect of one or more parties, these can take part without further formalities at any stage of expertise, either by being present or by represent, either by providing written comments.
In such cases, the expertise and the procedure continues contradictorily for these parties, which cannot oppose the decisions and earlier acts. » Art. 19. article 981 of the Code is replaced by the following provision: «art.» 981. the expertise is not opposable to the part called in forcible intervention after the sending of the expert's provisional opinion, unless this part is waiving the innoposabilite.
The third party may not require that work already done are repeated in his presence unless he justifies his interest towards them. ».
S. 20. article 982 of the same Code, as amended by the Act of June 26, 1992, shall be replaced by the following provision: «art.» 982. the judge refers only to a single Panelist unless he deems necessary to appoint several.
The experts shall draw up a single report; they form a single notice to the plurality of voices, they indicate Nevertheless, in the case of differing opinions, the reasons for the various notices. The report is signed by all forensic experts.
Detailed statement of costs and fees is if there are several legal experts for the same cause.
It clearly indicates the share of each. » Art. 21. article 983 of the same Code, amended by the Act of 21 April 1982 is replaced by the following provision: «art.» 983. the Clerk shall, by simple letter, a copy of the final judgment to the expert. » Art. 22. it is inserted in the same section of the same Code a sub-section 4 containing sections 984 to 986, which the title reads as follows: "subsection 4. Intervention limited experts. » Art.
23. article 984 of the same Code is replaced by the following provision: «art.» 984. If the judge does not find sufficient clarification in the report, it may order either the realization of complementary by the same expert expertise, or the realization of a new expertise by another expert.
The new expert may ask the expert previously named the information which it may deem useful. » Art. 24. article 985 of the same Code, as amended by the Act of May 27, 1974, is hereby replaced by the following provision: «art.» 985. the judge may hear the expert at the hearing.
It can help documents at the hearing.
The expert ready before the oath be heard in the following terms: "I swear to my report in honour and conscience, with accuracy and probity.";
or "Ik dat ik zweer in era in geweten, nauwgezet in eerlijk verslag zal doen.";
or "Ich schwore mein Gutachten phew Ehre und Gewissen, genau und ehrlich abzugeben.»
The expert statements are recorded in a report signed by the judge, the clerk and him even after reading and comments if applicable.
At the request of the parties, the judge may hear their advisers.
The judge immediately tax expenses and fees of the expert at the bottom of the minutes and it is issued enforceable against the party or parties designated by him and in the proportion that it determines. In the final decision, these amounts shall be taxed as court costs. » Art. 25. article 986 of the Code is replaced by the following provision: «art.» 986. the judge may appoint an expert to be present during a measure of inquiry ordered to provide technical explanations or to report orally at the hearing fixed for this purpose. The judge may also instruct this expert to produce during the hearing of the documents needed for the solution of the dispute.
The expert can help documents.
The expert oral oath in the following terms: "I swear to give explanations that me will be asked, in honour and conscience, with accuracy and probity.";
or: "Ik dat ik alle gevraagde boete zweer in era in geweten, nauwgezet in eerlijk zal er. ';
or: 'Ich schwore, alle remain Erläuterungen auf Ehre und Gewissen, genau und ehrlich zu geben.'
II is prepared minutes of the statements of the expert.
The judge immediately tax expenses and fees of the expert at the bottom of the minutes and it is issued enforceable against the party or parties designated by him and in the proportion that it determines. In the final decision, these amounts shall be taxed as court costs. ».
S.
26 II is inserted in the same section of the same Code a subsection 5 including items 987 to 991bis, the title reads as follows: 'subsection 5. Expenses and fees of experts. » Art. 27. article 987 of the same Code, as amended by the Act of May 27, 1984, is hereby replaced by the following provision: «art.» 987. the judge may fix the provision that each party is obliged to record to the registry or to the credit institution which the parties have agreed, and the time limit within which it must meet this requirement. The judge cannot impose this obligation on the part which, under article 1017, may not be sentenced to pay the costs.
The judge may determine the reasonable part of the provision to release to cover the costs of the expert.
As soon as the provision is recorded, the Registrar or the credit institution shall inform expert by missive letter.
If necessary, file pays the portion released to the expert. » Art. 28. article 988 of the same Code is replaced by the following provision: «art.» 988. If the expert considers that the provision or that the released of the part is not enough, it can ask the judge to record an additional provision or release much more.
Another release is also possible to cover a reasonable part of the fees to the work already performed.
Judge denies additional logging or release of a greater part of the provision if he considers that it is not reasonably justified. II motivates this decision.
» Art. 29. article 989 of the Code is replaced by the following provision: «art.» 989. If a party does not carry out logging within the time limit, the judge may draw inferences as it considers appropriate. » Art. 30. article 990 of the same Code, as amended by the law of June 24, 1970, is replaced by the following provision: «art.» 990. the State charges and fees detailed expertise mentioned separately:-hourly tariff.
-travel expenses;
-subsistence expenses;
-General costs;
-the amounts paid to third parties;
-the attribution of the released amounts.
If the expert fails to file its State fees and costs, the parties may ask the judge to proceed with the taxation.
» Art. 31. article 991 of the same Code is replaced by the following provision: «art.» 991 § 1. If, within fifteen days of the filing of a detailed at the registry, the parties informed, in writing, the judge that they agree on the amount of the fees and expenses claimed by the experts, they are taxed by the judge at the bottom of the minute of the State and it is issued enforceable in accordance with the agreement reached between the parties or against the party as it is intended for the recording of the provision.
§ 2. If, within the period specified in the § 1, the parties have not given their agreement, the expert or the parties may, in accordance with article 973 § 2, enter the judge so that it proceeds to the taxation of costs and fees.
The judge fixed the amount of charges and fees without prejudice to any damages.
II takes particularly account of the rigour with which the work was performed, respect deadlines and the quality of the work provided.
The judge said judgment enforceable against the party, as it is intended for the recording of the provision.
§

3. in the final decision, these amounts shall be taxed as court costs. » Art. 32. an article 991bis, worded as follows, shall be inserted in the same Code: «art.» 991bis. after the final taxation, the provision is withdrawn by experts up to the amount that deserve them. The balance remaining is refunded ex officio to the parties by the Registrar in proportion to the amounts they were required to record and that they were actually recorded.
Experts can only receive a direct payment after their State fees and charges has been definitively taxed and provided that the allowance recorded is insufficient. » CHAPTER III. -Modification du Code penal Art.
33. article 509quater of the penal Code inserted by the Act of 9 March 1989 and repealed by the law of 4 December 1990, was re-established in the following wording: «art.» 509quater. shall be punished by a term of imprisonment from eight days to three months and a fine of two hundred euro to fifteen hundred euros, or one of those penalties only, the expert who, knowing that a direct payment is not allowed, accept it despite all of a party to the cause. ' CHAPTER IV. -Provisions transitional art. 34. this Act applies to the expertises ordered after the entry into force of this Act.
The following provisions apply however already ongoing expertise at the time of the entry into force of the present law:-the new article 875bis;
-the new article 972bis, § 1, paragraph 1;
-new section 973, § 1;
-new section 974, § 1;
-the new article 991, § 2, paragraphs 2 and 3.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given to Brussels, May 15, 2007.
ALBERT by the King: Deputy Prime Minister and Minister of Justice, Ms. L. ONKELINX sealed with the seal of the State: the Minister of Justice, Ms. L. ONKELINX _ Note (1) Session 2005-2006.
House of representatives: Parliamentary papers: 51-2540: No. 1: Bill.
No. 2: amendments.
No. 3: Notice of the State Council.
our 4-6: amendments.
No. 7: report.
No. 8: Text adopted by the commission.
No. 9: Text adopted in plenary meeting and transmitted to the Senate.
Full report: April 12, 2007.
Senate: Parliamentary papers: 3-2390: No. 1: project not referred by the Senate.