Thông tư 04/2014/TT-BXD

Circular No. 04/2014/TT-BXD dated 22 April 2014, guiding a number of contents of judicial expertise in construction investment

Nội dung toàn văn Circular No. 04/2014/TT-BXD guiding judicial expertise in construction investment


MINISTRY OF CONSTRUCTION
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.: 04/2014/TT-BXD

Hanoi, 22 April 2014

 

CIRCULAR

GUIDING A NUMBER OF CONTENTS OF JUDICIAL EXPERTISE IN CONSTRUCTION INVESTMENT

Pursuant to the Law on construction No. 16/2003/QH11 dated 26 November 2003;

Pursuant to the Law on judicial expertise No. 13/2012/QH13 dated 20 June 2012;

Pursuant to the Ordinance No. 02/2012/UBTVQH13 dated 28 March 2012 on expenses of expertise, valuation, witness and interpreter in proceedings.

Pursuant to Decree No. 62/2013/ND-CP dated 25 June 2013 of the Government defining functions, duties, powers and organizational structure of the Ministry of Construction;

Pursuant to Decree No. 15/2013/ND-CP dated 06 February 2013 of the Government on management of constructional works;

Pursuant to Decree No. 85/2013/ND-CP dated 29 July 2013 of the Government detailing the implementation of the Law on judicial expertise;

Pursuant to Decree No. 12/2009/ND-CP dated 12 February 2009 of the Government on management of works construction projects; Decree No. 83/2009/ND-CP of the Government on amending and supplementing some articles of Decree No. 12/2009/ND-CP;

Considering the Director of State Inspection Department,

The Minister of Construction issues Circular guiding some contents on judicial expertise in constructional investment.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. Scope of regulation:

This Circular provides for the competence conditions, announces information of individuals and organizations of judicial expertise, applies professional regulation and standard on judicial expertise; guiding the order and procedures for implementation and expenses of judicial expertise in constructional investment activities;

2. Subjects of application:

This Circular applies to individuals and organizations related to the judicial expertise in constructional investment activities in Vietnam.

Article 2. Interpretation of terms

In this Circular, the following terms are construed as follows:

1. Judicial expertise in constructional investment activities (hereafter referred to as constructional judicial expertise) is that individuals and organizations performing the constructional judicial expertise shall develop and use technical, scientific and professional knowledge, means and method for professional assessment and conclusion to the issues solicited or requested for expertise in constructional investment activities as required by the organ or person conducting legal proceedings or at request of expertise solicitor (hereafter referred to as expertise requester) under regulations of law.

2. Constructional judicial individuals include constructional judicial experts and ad hoc constructional judicial experts;

3. Constructional judicial expertise organizations include the ad hoc constructional judicial expertise organizations and constructional judicial expertise offices.

4. Expenses of constructional judicial expertise are the necessary and rational amount of money to be paid for judicial expertise which is done by the individuals and organizations performing the constructional judicial expertise. This amount is calculated on the basis of provisions of this Circular and other relevant laws.

Article 3. Contents of constructional judicial expertise

1. The judicial expertise for the compliance with regulations of law in constructional investment activities including stages: from set-up of constructional investment projects in building, constructional survey, constructional design, constructional works performance, works operation and maintenance.

2. Judicial expertise on constructional quality includes: expertise of constructional survey quality, constructional design, materials and products, works equipment, works parts, constructional works and incident expertise of constructional works;

3. Judicial expertise on expenses of works construction investment, works value and other relevant expenses including: expertise of total investment, estimate of works construction, finalization of investment capital of works construction, residue value of works and other relevant issues.

Article 4. Application of professional regulation and standard in constructional judicial expertise

The professional regulation and standard applied in constructional judicial expertise are the national technical regulations and standards applied in constructional investment as prescribed by law.

Chapter II

CAPABILITY CONDITIONS AND ANNOUNCEMENT OF INFORMATION OF INDIVIDUALS AND ORGANIZATIONS PERFORMING CONSTRUCTIONAL JUDICIAL EXPERTISE

Article 5. Competence conditions of constructional judicial experts and ad hoc constructional judicial persons

The constructional judicial experts and ad hoc constructional judicial persons are Vietnamese citizens residing in Vietnam meeting the provisions specified under Point a and b, Clause 1, Article 7 of the Law on judicial expertise and meeting the following conditions:

1. For judicial expertise on the compliance with regulations of law in constructional investment:

a) Having practical experience from 05 years or more performing one of the following tasks: management of constructional investment, supervision of constructional performance and inspection or state management of construction in accordance with the contents registered for constructional judicial expertise;

b) Having certificate of project management profession training or certificate of constructional performance supervision or certificate of professional training or certificate of practice: bidding, inspection, cost estimating engineer as prescribed by law on construction in accordance with the contents registered for constructional judicial expertise;

2. For judicial expertise on construction quality:

a) In case of expertise of quality of constructional survey or works construction design:

- Having practical experience from 05 years or more performing one of the following tasks: constructional design and inspection in accordance with the contents registered for constructional judicial expertise;

- Having the prescribed certificate of constructional survey practice or constructional design.

b) In case of expertise of quality of materials, constructional products and works equipment:

- Having practical experience from 05 years or more performing one of the following tasks: constructional design and constructional performance supervision and constructional inspection in accordance with the contents registered for constructional judicial expertise;

- Being provided with the prescribed training of constructional inspection profession.

c) In case of expertise of quality of constructional works parts and constructional works and expertise of incidents of constructional works.

- Having practical experience from 05 years or more performing one of the following tasks: constructional design and constructional performance supervision and constructional inspection in accordance with the contents registered for constructional judicial expertise;

- Having the prescribed certificate of constructional design or performance supervision.

- Being provided with the prescribed training of constructional inspection profession.

3. For judicial expertise on expenses of works construction, works value and other relevant expenses:

a) Having practical experience from 05 years or more performing one of the following tasks: constructional design and constructional performance supervision or management of expenses of works construction in accordance with the contents registered for constructional judicial expertise;

b) Having certificate of cost estimating engineer.

Article 6. Competence conditions of ad hoc constructional judicial expertise organization

The ad hoc constructional judicial expertise organization is a constructional inspection organization having competence in line with subjects and contents solicited or requested for expertise. The other constructional consulting organizations must meet the following conditions when performing the constructional judicial expertise:

1. For judicial expertise on compliance with regulations of law in constructional investment activities:

a) Being able to perform one of the tasks: management of constructional project and constructional performance supervision in accordance with the contents registered for constructional judicial expertise;

b) Individuals in charge of expertise performance must meet the provisions in Clause 1, Article 5 of this Circular.

2. For judicial expertise on quality:

a) In case of expertise on quality of constructional survey or design of works:

- Being able to perform one of the tasks: constructional survey and design, constructional design assessment in accordance with the contents registered for constructional judicial expertise;

- Individuals in charge of expertise performance must meet the provisions under Point a, Clause 2, Article 5 of this Circular.

b) In case of expertise on quality of materials, constructional products and works equipment:

- Being able to perform one of the tasks: constructional design, constructional experiment and constructional performance supervision in accordance with the contents registered for constructional judicial expertise;

- Individuals in charge of expertise performance must meet the provisions under Point b, Clause 2, Article 5 of this Circular.

c) In case of expertise of quality of constructional works parts and constructional works and expertise of incidents of constructional works.

- Being able to perform one of the tasks: constructional design and constructional performance supervision in accordance with the contents registered for constructional judicial expertise;

- Individuals in charge of expertise performance must meet the provisions under Point c, Clause 2, Article 5 of this Circular.

3. For judicial expertise on expenses of works construction, works value and other relevant expenses:

a) Being able to perform one of the tasks: constructional design, expertise on construction and management of expenses of works construction in accordance with the contents registered for constructional judicial expertise;

b) Individuals in charge of expertise performance must meet the provisions in Clause 3, Article 5 of this Circular.

Article 7. Competence conditions of constructional judicial expertise office

1. Being established and issued with operation registration certificate as stipulated by the Law on judicial expertise and relevant legal normative documents.

2. Having equipment to ensure the expertise implementation as per the registration contents of constructional judicial expertise.

3. Meeting the requirements on competence of ad hoc constructional judicial expertise organizations in accordance with the registration contents of constructional judicial expertise.

Article 8. Appointment of constructional judicial expert

1. The constructional judicial expert is appointed under the provisions in Article 9 of the Law on judicial expertise.

2. Authority to appoint the constructional judicial expert:

a) The Ministry of Construction shall appoint the constructional judicial expert to individuals who are public servants of the Ministries, ministerial-level organs, individuals of public non-business units or state-owned enterprises of the Ministries, ministerial-level organs.

b) The provincial People’s Committee shall appoint the judicial experts to individuals not subject to the provisions specified under Point a, Clause 2 of this Article.

3. Individuals registering the appointment as judicial experts shall provide information under the form specified in Annex 1 attached to this Circular and relevant dossiers as stipulated in Article 8 of the Law on judicial expertise to be sent to the Ministry of Construction or provincial People’s Committee for appointment consideration under its authority specified in Clause 2 of this Article.

4. Constructional judicial experts having a need to expand scope of expertise shall provide information related to the additional expertise contents under the form specified in Annex 01 attached to this Circular to be considered for prescribed appointment.

Article 9. Registration and announcement of information of organizations and individuals performing the constructional judicial expertise

1. Registration of information of the individuals and organizations performing the constructional judicial expertise:

a) For constructional judicial experts, the dossier for appointment registration is the dossier for registration of information announcement. The Ministry of Construction and the provincial People’s Committee shall announce information on constructional judicial experts on their website as stipulated under Point a, Clause 2 of this Article;

b) Individuals have a need to become the ad hoc constructional judicial experts shall provide information as per the Annex 01 attached to this Circular to be sent to the Ministry of Construction (in case such individuals are public servants of the Ministries and ministerial-level organs; individuals of public non-business units or state-owned enterprises of the Ministries and ministerial-level organs) or sent to the provincial People’s Committee (for other individuals) to be considered for prescribed announcement;

c) Constructional consulting organizations have a need to become the ad hoc constructional judicial expertise organizations shall gather their information specified in Annex 02 attached to this Circular to be sent to the Ministry of Construction (in case such organizations are public non-business units or state-owned enterprises of the Ministries and ministerial-level organs) or sent to the provincial People’s Committee (for other individuals) to be considered for prescribed announcement;

d) Constructional judicial expertise office shall provide information specified in Annex 02 attached to this Circular to be sent to the provincial People’s Committee which permits the operation to be considered for prescribed announcement;

dd) The Ministry of Construction and the provincial People’s Committee shall receive, verify the registration information of dossier for announcement of ad hoc constructional judicial individuals, organizations and offices under their authority. Where the dossiers are not valid, within 07 working days after receipt of dossiers, the Ministry of Construction and the provincial People’s Committee shall send a written proposal to such organizations and individuals for prescribed completion and supplementation.

e) When there are changes or modifications of information of constructional judicial expertise individuals (working place, permanent address, contents of constructional judicial expertise, diplomas, and certificates of professional training related to the constructional judicial expertise) and constructional judicial expertise organizations (name of organization, certificate of business registration, address or contents of constructional judicial expertise), the organizations and individuals announced must provide the changed information for the Ministry of Construction or the provincial People’s Committee. After 10 working days after fully receiving information, the Ministry of Construction or the provincial People’s Committee shall verify and update such information again on their website.

2. Announcement of list and information of individuals and organizations performing the constructional judicial expertise:

a) The Ministry of Construction and the provincial People’s Committee shall announce the list and information of constructional judicial experts as per the contents specified in Annex 01 attached to this Circular on their website under their authority within 10 working days after the appointment decision;

b) The Ministry of Construction and the provincial People’s Committee shall announce the list and information of the ad hoc constructional judicial individuals, organizations and offices as per the contents specified in Annex 1 and 2 attached to this Circular on their website under their authority within 30 days after fully receiving the valid dossier.

c) Within 30 working days after the provincial People’s Committee has announced the list and information of individuals and organizations performing the constructional judicial expertise at localities on their website under their authority, the provincial People’s Committee shall gather such list and information to be sent to the Ministry of Construction for general announcement.

Chapter III

ORDER AND PROCEDURES FOR CONSTRUCTIONAL JUDICIAL EXPERTISE

Article 10. Selecting organizations and individuals to perform the constructional judicial expertise

1. The expertise requester shall choose the individuals and organizations performing the constructional judicial expertise with practical experiences and competence conditions appropriately with the subjects and contents solicited or requested for expertise and such organizations or individuals have been announced under the provisions of this Circular.

2. Where it is impossible to choose the individuals and organizations performing the constructional judicial expertise that have been announced under the provisions of this Circular, the expertise requester shall request the Ministry of Construction or constructional management organs of state at localities to introduce organizations or individuals meeting the competence specified in this Circular in addition to the announced list of organizations and individuals.

Article 11. Receiving solicitation or request for constructional judicial expertise

1. When receiving solicitation decision or written request for constructional judicial expertise, the organization or individual in charge of expertise shall receive and perform the expertise as per the solicited or requested contents, except for case of refusal under the provisions in Clause 2, Article 11, Point b, Clause 1, Article 24 of the Law on judicial expertise and case of prohibited performance of judicial expertise stipulated in Article 34 of the Law on judicial expertise.

The agreement on performance of expertise between the expertise requester and the organizations or individuals performing the constructional judicial expertise is under the contract or in other forms of document as prescribed by law.

2. Where the organizations or individuals requested or solicited for expertise refuse their expertise, they should have explanation in writing as stipulated in Clause 2, Article 11 or Point d, Clause 2, Article 24 of the Law on judicial expertise.

Article 12. Handover and receipt of objects for constructional judicial expertise

1. Where the expertise has the objects of expertise, the handover and receipt of such objects must be made in writing. The content of such written handover and receipt is made under the provisions in Clause 2, Article 27 of the Law on judicial expertise.

2. Where the expertise has not the objects of expertise such as constructional works or parts of constructional works, the organizations or individuals performing the constructional judicial expertise, the expertise requester and other relevant parties must come to the site of expertise to record and handover the real state of constructional works or parts of constructional works to the organizations or individuals performing the constructional judicial expertise.

Article 13. Performance of constructional judicial expertise

1. The organizations or individuals performing the constructional judicial expertise shall make and send the expertise outline to the expertise requester. The content of expertise outline includes:

a) List of applicable national technical regulations and standards;

b) Objects and scope of expertise;

c) List of personnel performing expertise, persons assigned to take charge of performance of expertise and information on competence of the person in charge and other persons performing the expertise.

d) Name of organization and list of individuals hired to perform the expertise (in case of hiring other organizations or individuals with prescribed appropriate competence to perform one or a number of tasks related to the contents of expertise);

dd) Method for expertise performance;

e) List of laboratories and equipment to be used (if any);

g) Expenses of expertise and estimated time of expertise completion;

h) Other conditions as prescribed by law to perform the expertise. In case of necessity, the organizations or individuals performing the judicial expertise should ask for the permission from the expertise requester to carry out the preliminary survey of expertise objects in order to prepare the expertise outline, unless otherwise specified by law.

2. The expertise requester shall review the outline as a basis for expertise performance. Depending on the nature of case for expertise, the party requesting the expertise may ask for advice from the constructional management organs of state on contents of the outline.

3. Organizations or individuals performing the judicial expertise shall inform in writing the expertise requester of the change of personnel performing the expertise or other changes related to the process of expertise such as generated performance volume, adjustment of time of expertise completion…(if any).

4. During the process of implementation, the person in charge of expertise must prepare the record of implementation and result of expertise implementation as stipulated in Article 31 of the Law on judicial expertise. The record of implementation is made in the form of diary with numbered pages and certification of the expertise requester. The contents of record and result of expertise implementation include: the reality of daily expertise performance, personnel, equipment for performance, result of survey and measurement (if any) and arising problems during the implementation and other relevant problems;

Article 14. Dossier for constructional judicial expertise

Organizations or individuals performing the constructional judicial expertise must prepare report on conclusion of expertise and gather other documents into the dossier of judicial expertise as stipulated in Clause 1, Article 33 of the Law on judicial expertise. The report on conclusion of judicial expertise includes the following contents:

1. Grounds for expertise performance:

a) Full name of expertise performer or expertise performing organization;

b) Name of proceedings conducting organ or name of proceedings conducting person soliciting the expertise; expertise solicitation document number or full name of expertise requester, time of receipt of expertise solicitation document;

c) Expertise contract or other agreement documents as prescribed by law.

2. General information about expertise object (scale, characteristics, current state…) and other relevant information (natural conditions, geology…).

3. Content of expertise solicitation or request.

4. Method of expertise.

5. Results of experiment, analysis and assessment.

6. Conclusion on contents under the expertise solicitation decision or written expertise request.

7. Time and location for implementation and completion of expertise.

Chapter IV

EXPENSES OF CONSTRUCTIONAL JUDICIAL EXPERTISE

Article 15. Expenses of constructional judicial expertise

1. Organizations performing the constructional judicial expertise shall define the expenses of expertise on the basis of objects, content of expertise solicitation, volume of expertise work to be done and agreement with the expertise requester. The expenses of expertise are defined by preparing estimate under regulations on management of constructional investment expenses and consistent with the work volume of approved outline. The expenses of constructional judicial expertise include a number of or all of the following expenses:

a) Preparation for outline of judicial expertise;

b) Survey of current state of works, works items or parts of constructional works (if any);

c) Sample taking for testing, and testing;

d) Study of dossiers and documents;

dd) Calculation, appraisal, assessment, report preparation and conclusion.;

e) Transportation and management;

g) Involvement in proceedings process and other necessary expenses.

2. Individuals performing the constructional judicial expertise shall receive the benefits of judicial expertise and other allowances as prescribed by law.

Article 16. Advance and payment of expenses of constructional judicial expertise

1. The advance of expenses to organizations or individuals performing the constructional judicial expertise shall be done prior to the expertise. The rate and progress of advance are agreed on the basis of proposal of the organizations or individuals performing the expertise and must ensure the sufficiency for expertise.

2. When receiving the conclusion on result of constructional judicial expertise, the expertise requester shall make payment or finalization of expenses of constructional judicial expertise to organizations or individuals performing the expertise and other relevant parties.

The order and procedures for advance and payment of expenses of constructional judicial expertise shall comply with the provisions in the Ordinance No. 02/2012/UBTVQH13 dated 28 March 2012 on expenses of expertise and valuation, witness, interpreter in the proceedings and other relevant legal normative documents.

Chapter V

IMPLEMENTATION

Article 17. Content of state management over the constructional judicial expertise

1. The Ministry of Construction:

a) Guides and inspects the implementation of constructional judicial expertise as stipulated in this Circular nationwide;

b) Appoints or dismisses the constructional judicial experts and selects the ad hoc constructional judicial experts.

c) Announces list of ad hoc constructional judicial experts or ad hoc constructional judicial persons, organizes the ad hoc constructional judicial expertise and constructional judicial expertise offices nationwide, announces the form of sanction in constructional judicial expertise activities and removes from the list of organizations or individuals of constructional judicial expertise violating the provisions in this Circular on the website of the Ministry of Construction.

d) Develops and implements the program and plan for professional training related to the constructional judicial expertise and legal knowledge for the group of constructional judicial experts;

dd) Examines, inspects and deals with complaints and denunciations on constructional judicial expertise activities under its management authority;

e) Annually, aggregates the constructional judicial expertise activities and sends report to the Ministry of Justice for report to the Government.

The State Inspection Department on quality of constructional works – the Ministry of Construction is the organ assisting the Ministry of Construction to carry out the above duties.

2. Provincial People’s Committee:

a) Guides and inspects the performance of constructional judicial expertise as stipulated in this Circular at localities;

b) Appoints and dismisses the constructional judicial experts, selects the ad hoc constructional judicial persons and decides the prescribed establishment of constructional judicial expertise Office;

c) Announces the ad hoc constructional judicial experts, individuals, organizations and offices at localities on the website of the provincial People’s Committee and gathers all lists to be sent to the Ministry of Construction for general announcement.

d) Provides professional training and legal knowledge for the ad hoc constructional judicial experts and persons at localities.

dd) Examines, inspects and deals with complaints and denunciation on constructional judicial expertise under its management authority;

e) Makes report to the Ministry of Construction on organization and operation of constructional judicial expertise at localities before the 15th of December annually for report to the Ministry of Justice.

The Department of Construction is the organ assisting the provincial People’s Committee to carry out the above duties.

Article 18. Transitional provision

1. The cases of constructional judicial expertise are being performed before the effective date of this Circular shall continue to comply with the provisions in Circular No. 35/2009/TT-BXD dated 05 October 2009 of the Ministry of Construction guiding the constructional judicial expertise.

2. The constructional judicial experts who are appointed as prescribed before the effective date of this Circular shall base themselves on the guidelines of this Circular to gather information to be sent to the Ministry of Construction or the provincial People’s Committee under their management authority for announcement on their websites.

3. The organizations announced under the provisions in Circular No. 35/2009/TT-BXD shall base themselves on the guidelines of this Circular to adjust or supplement information to be sent to the Ministry of Construction for announcement on the website of the Ministry of Construction.

Article 19. Implementation provision

1. This Circular takes effect from 15 June 2014 and supersedes Circular No. 35/2009/TT-BXD dated 05 October 2009 of the Ministry of Construction guiding the constructional judicial expertise.

2. The Ministries, ministerial-level organs, governmental organs, People’s Committee of provinces and centrally-run cities, organizations and individuals involved in constructional judicial expertise and other relevant organizations and individuals are liable to execute the provisions of this Circular. Any problem arising during the implementation of this Circular should be reported to the Ministry of Construction for guidance and settlement./.

 

 

 

FOR THE MINISTER
DEPUTY MINISTER




Cao Lai Quang

 

 


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