CIRCULAR

ON CERTAIN CONTENTS OF JUDICIAL EXPERTISE IN CONSTRUCTION

Pursuant to the Law on judicial expertise dated June 20, 2012; Law on amendments to the Law on judicial expertise dated June 10, 2020;

Pursuant to the Law on construction dated June 18, 2014; Law on amendments to the Law on construction dated June 17, 2020;

Pursuant to the Law on housing dated November 25, 2014;

Pursuant to the Law on real estate trading dated November 25, 2014;

Pursuant to the Government’s Decree No. 06/2021/ND-CP dated January 26, 2021 on elaboration of quality control, construction and maintenance of construction works; the Government’s Decree No. 15/2021/ND-CP dated March 3, 2021 on elaboration of construction project management;

Pursuant to the Government’s Decree No. 85/2013/ND-CP dated July 29, 2013 on elaboration of the Law on judicial expertise; the Government’s Decree No. 157/2020/ND-CP dated December 31, 2020 on amendments to the Government’s Decree No. 85/2013/ND-CP dated July 29, 2013;

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At the request of the Director of Construction Quality Inspectorate,

The Minister of Construction issues a Circular on certain contents of judicial expertise in construction.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope:

This Circular set forth the matters of construction-related judicial expertise; appointment and dismissal of construction-related judicial experts; recognition or cancellation of the recognition of ad-hoc construction-related judicial experts or ad-hoc construction-related judicial expertise organizations; application of professional standards and regulations; using machines, equipment, means and facilities in service of construction judicial expertise; construction-related judicial expertise process, dossier and time limit.

2. Regulated entities:

This Circular applies to individuals and organizations related to the judicial expertise in construction field in Vietnam.

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For the purposes of this Circular, the following term has the meaning attributed as follows:

1. Construction-related judicial expertise means seeking an expertise under the provisions of the Law on judicial expertise in the field of construction.

2. Construction-related judicial expertise individuals include:  construction-related judicial experts, ad-hoc construction-related judicial experts.

3. Construction-related judicial expertise organizations include: ad-hoc construction-related judicial expertise organizations, construction-related judicial expertise offices.

4. The centralized unit in general management of construction-related judicial expertise (hereinafter referred to as the centralized unit) is the unit assigned to assist the Minister of Construction or the Presidents of the People's Committees of provinces or central-affiliated cities (hereinafter referred to as provinces) to perform the state management of construction-related judicial expertise activities according to regulations.

Article 3. Matters of construction-related judicial expertise

1. Judicial expertise on the compliance with the provisions of the law on construction planning, construction investment, housing and real estate business, including:

a) The judicial expertise on the compliance with regulations of law on construction planning and construction investment activities in the following stages: formulation and management of planning; formulation of construction investment projects, construction survey, constructional designs, construction work execution, acceptance and handover to put the works into service, works operation and maintenance;

b) The judicial expertise on the compliance with the law on housing and real estate business, including: ownership, purchase, sale, transaction, lease, housing and real estate management,

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3. Judicial expertise on work construction costs, including:  judicial expertise on total estimated investment, work construction estimates, the construction fixed-budget; payment and final statement of construction contracts, payment and settlement of construction investment capital and other related issues; judicial expertise on housing and real estate values.

Article 4. Application of professional regulation and standard in construction-related judicial expertise

The professional regulations and standards applied in construction-related judicial expertise are the national technical regulations and standards applied in construction field as prescribed by law.

Article 5. Judicial expertise equipment and means and physical conditions for construction-related judicial expertise organizations and individuals

Equipment and means of assessment and physical conditions for construction-related judicial expertise organizations and individuals include necessary machines, equipment and facilities to meet the eligibility requirements for construction performance as per the law.

Chapter II

APPOINTMENT, DISMISSAL, ISSUANCE OF CONSTRUCTION-RELATED JUDICIAL EXPERT CARDS AND RECOGNITION OF AD-HOC CONSTRUCTION-RELATED JUDICIAL EXPERTISE ORGANIZATIONS AND INDIVIDUALS

Article 6. Appointment, dismissal and issuance of construction-related judicial expert cards

1. The Minister of Construction and the President of the People's Committee of province shall appoint, dismiss and grant construction-related judicial expert cards according to Clause 1, Article 9 of the Law on judicial expertise.

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3. The requester sends a written request for appointment, dismissal or adjustment of information of construction-related judicial expert, enclosed with necessary documents as prescribed in the Appendix to this Circular, to the receiving body of the Ministry of Construction or the People's Committee of the province to be considered for appointment, dismissal or adjustment of information within 20 days from the date of receipt of valid request as prescribed.

4. The procedures for granting construction-related judicial expert cards comply with the law on card template, procedures for issuance and re-issuance of judicial expertise cards.

Article 7. Recognition and cancellation of recognition of ad-hoc judicial expertise organizations and individuals

1. The centralized unit under the Ministry of Construction shall select and compile a list of organizations and individuals fully qualified for construction activities, which have been posted on the website of the Ministry of Construction and other organizations and individuals that fully meet the criteria and conditions for construction-related judicial expertise according to regulations, and then submit them to the Minister for issuance of decisions on recognition as ad-hoc construction-related judicial expertise organizations and individuals under their management.

2. The Department of Construction shall take charge and coordinate with the Department of Justice under the People's Committee of the province in, selecting and compiling a list of organizations and individuals that are eligible for construction activities, which have been posted on the portal of the Department of Construction or the Ministry of Construction and other organizations and individuals that meet the criteria and conditions for construction-related judicial expertise as prescribed (except for organizations and individuals that have been recognized according to Clause 1 of this Article) and submit them to the President of the People's Committee of the province to issue decisions on recognition as ad-hoc construction-related judicial expertise organizations and individuals in the province.

3. In case an ad-hoc judicial expertise organization or individual no longer meets the standards and conditions for construction-related judicial expertise as prescribed, the centralized unit under the Ministry of Construction or the People's Committee of province shall submit them to the Minister or the President of the People's Committee of province to, according to their competence, issue a decision to cancel the recognition of ad-hoc judicial expertise organization or individual.

Article 8. Posting a list of construction-related judicial expertise organizations and individuals

Within 07 days from the date of issuance of a decision on appointment or dismissal of a construction-related judicial expert, a decision on recognition or cancellation of recognition of ad-hoc construction-related judicial expertise organization or individual, the Ministry of Construction, the People's Committee of province shall post or remove the list of construction-related judicial expertise organizations and individuals on their portals and send them to the Ministry of Justice according to regulations.

Chapter III

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Article 9. Selection of construction-related judicial expertise organizations and individuals

1. Based on the subjects and matters of judicial expertise specified in Article 3 and the list of construction-related judicial expertise organizations and individuals that have been posted as prescribed in Article 8 of this Circular, the expertise solicitor or expertise requester selects an appropriate construction-related judicial expertise organization or individual to issue a decision on solicitation or request for expertise.

2. If it is not possible to select a construction-related judicial expertise organization or individual as prescribed in Clause 1 of this Article, the expertise solicitor shall request a specialized agency affiliated to the People's Committee of province or the Ministry of Construction, the Ministry of Construction Management to introduce organizations and individuals outside the posted list that satisfy the prescribed standards and conditions, and are suitable to the subjects and matters of judicial expertise.

Article 10. Process of performing construction-related judicial expertise

1. Receipt of solicitation and request for expertise

a) The construction-related judicial expertise organization or individual receives the decision on solicitation or request for expertise; checks the completeness and validity of documents, and subjects of expert opinions (if any) delivered as prescribed at Point b, Clause 1 of this Article;

b) The delivery and receipt of documents, subjects of expert opinions shall comply with Article 27 of the Law on judicial expertise.  In case the subject of expert opinions cannot be enclosed with the decision on solicitation or request for judicial expertise, the expertise solicitor or requester and construction-related judicial expertise organization or individual shall make a record of handover of the subject of expert opinions at the scene where the case of which the expert opinions are solicited or requested is located according to regulations;

c) In case the documents serving the assessment are incomplete or invalid, within 5 working days, the construction-related judicial expertise organization or individual shall send a written request to the expertise solicitor or requester for completion;

d) In case of refusal of expert opinions as prescribed in Clause 2, Article 11 and Point b, Clause 1, Article 24 of the Law on Judicial Expertise as amended in Clauses 7 and 14, Article 1 of the Law on amendments to the Law on Judicial Expertise or in case it is not possible to conduct judicial expertise as prescribed in Article 34 of the Law on Judicial Expertise, the judicial expertise organization or individual shall make a written notice of the reason to the expertise solicitor or requester within 05 working days from the date of receipt of the decision on soliciting or requesting expertise.

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a) Construction-related judicial expertise organizations and individuals need to set up an outline and estimate of assessment expenses and request an advance payment of assessment to send them to the expertise solicitor or requester.  The content of expertise outline at least includes:

- Grounds for expertise performance: the decision on solicitation or request for expertise; legal regulations, lists of technical regulations, applicable standards and other grounds (if any);

- Details about the organization or individual performing the expertise;

- Details about the subject and matter of the assessment; the process and method of performing the expertise; laboratory name, list of equipment used (if any); other necessary contents to serve the expertise performance;

- Time and progress for performance;

- Estimation of accompanying assessment costs;

b) The expertise solicitor, requester shall organize the consideration and approval of the outline and estimate of the assessment cost and advance payment of the assessment expense at the request of the construction-related judicial expertise organization or individual.  Where appropriate, the expertise solicitor or requester may hire an organization or individual that fully meets the conditions as prescribed to verify the outline and estimate of expenses as a basis for acceptance.  The agreement on performance of expertise between the expertise solicitor, requester and the construction-related judicial expertise organizations or individuals shall be made in the form of contract or in other forms of document as prescribed by law.

3. Performance of judicial expertise

a) Construction-related expertise organizations and individuals shall provide expert opinions according to the approved outline; expertise conclusions are made according to Article 32 of the Law on Judicial Expertise as amended in Clause 18, Article 1 of the Law on amendments to the Law on judicial expertise and satisfy the expertise solicitation or request;

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c) In case it is necessary to supplement documents to provide expert opinions, within 5 working days, the construction-related judicial expertise organization or individual shall send a written request to the expertise solicitor or requester for supplementation. The duration from when the construction-related judicial expertise organization or individual sends a written request until receiving additional documents is not included in the assessment time.  In case the documents are not supplemented sufficiently at the request, the construction-related judicial expertise organization or individual has the right to refuse giving expert opinions.

4. Handover of expertise conclusions and pay expertise expenses

The construction-related judicial expertise organization or individual is responsible for handing over expertise conclusions to the expertise solicitor or requester and making a written record. The expertise solicitor or requester is responsible for paying expertise fees to construction-related expertise organization or individual according to regulations.

5. Attending the trial

At the court's request, a representative of a construction-related expertise organization or construction-related expertise individual participates in the court hearing to explain the contents of the expertise conclusion. The court is responsible for arranging a suitable position for judicial experts when participating in court proceedings as prescribed in Clause 5, Article 44 of the Law on Judicial Expertise as amended at Point b, Clause 26 of Article 1 of Law on amendments to the Law on judicial expertise and pay the travel expenses and allowances for experts attending court sessions in accordance with the law on extra money for court hearing attendance.

Article 11. Dossier for construction-related judicial expertise

Construction-related judicial expertise dossier is made according to Article 33 of the Law on Judicial Expertise as amended in Clause 19, Article 1 of the Law on amendments to the Law on judicial expertise and documents below:

1. Dossier of the organization or individual that satisfies the conditions and standards prescribed by construction-related expertise, suitable to the subjects and matters of the expertise.

2. The expertise outline and cost estimate (if any) approved by the expertise solicitor or requester.

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Article 12. Time limit for construction-related judicial expertise

The time limit for construction-related judicial expertise is elaborated according to Clause 16, Article 1 of the Law on amendments to the Law on judicial expertise.

Article 13. Additional assessment, re-assessment and establishment of the construction-related judicial expertise council

Additional assessment, re-assessment and establishment of the construction-related judicial expertise shall comply with Articles 29 and 30 of the Law on judicial expertise.

Chapter IV

IMPLEMENTATION

Article 14. Transitional provision

The cases of construction-related judicial expertise with expertise solicitation or requests received before the effective date of this Circular shall continue to comply with the provisions in Circular No. 04/2014/TT-BXD dated April 22, 2014 of the Ministry of Construction guiding the construction-related judicial expertise.

Article 15. Implementation

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2. This Circular takes effect from February 5, 2022 and supersedes Circular No. 04/2014/TT-BXD dated April 22, 2014 of the Minister of Construction on guidelines for judicial expertise in construction investment.

3. The Ministries, ministerial-level bodies, governmental bodies, People’s Committee of provinces and centrally-run cities, organizations and individuals involved in construction-related judicial expertise and other relevant organizations and individuals shall implement this Circular. Any problem arising during the implementation of this Circular should be reported to the Ministry of Construction for guidance and settlement./.

PP. MINISTER
DEPUTY MINISTER




Le Quang Hung