Zhiheng Original | Discussion on Several Issues of Appraisal Content- Zhiheng Law Firm

Introduction/Introduction

Article 33 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts for Construction Projects (1) stipulates that after the people's court grants the party's application for appraisal, it shall determine the matters, scope, and appraisal period of the entrusted appraisal according to the needs of the party's application and the determination of the facts of the case, and organize the parties to cross-examine the disputed appraisal materials.

Based on the above provisions (hereinafter referred to as the provisions of this article), this paper briefly discusses the relevant issues of appraisal content from five angles: the understanding of appraisal matters, the understanding of appraisal scope, the understanding of appraisal period, the necessity of cross-examination of appraisal materials, and the issues that should be paid attention to in practice.

According to Article 32, Paragraph 3 of the Several Provisions of the Supreme People's Court on Evidence in Civil Litigation, the people's court shall issue an engagement letter after determining the appraisal institution, and the engagement letter shall specify the appraisal items, scope of appraisal, purpose of appraisal, and appraisal period. The appraisal institution shall complete the appraisal work in accordance with the content determined in the engagement letter.

With reference to the provisions of Article 4.2.2.1 of the Specifications for Judicial Appraisal Procedures for Construction Projects (repealed, the same below), when entrusting an appraisal, the people's court shall sign a "Agreement on Judicial Appraisal of Construction Projects" with the appraisal agency, which shall specify: the basic information of the client and the appraisal agency, the matters entrusted with the appraisal and the appraisal requirements, the appraisal items, whether the appraisal matters belong to the re-appraisal, the rights and obligations of both parties in the appraisal process, the appraisal fees and collection methods, the appraisal agency's risk warning for judicial appraisal, and other matters that need to be stated.

The problem of understanding the appraisal matters

According to the first paragraph of Article 32 of the Construction Engineering Interpretation, the appraisal items include disputes over specialized issues such as project cost, project quality, and project repair cost. Referring to the provisions of the "Norms for Judicial Appraisal Procedures for Construction Projects", the appraisal items include construction project quality appraisal and construction project cost appraisal.

Among them, construction project quality appraisal includes construction stage quality appraisal, existing construction project quality appraisal, construction project disaster damage appraisal, and other special project quality appraisal. Construction project cost appraisal includes construction project cost appraisal, construction project construction period appraisal, construction project suspension, contract termination, and force majeure related expenses appraisal.

The problem of understanding the scope of the appraisal

According to Article 31 of the Construction Engineering Interpretation, appraisal shall be limited to the scope of the dispute between the parties, unless the scope of the dispute cannot be determined, or both parties request appraisal of all the facts. If there is no appraisal, there will be no appraisal, and if there is less appraisal, there will be no more appraisal. The people's court shall reasonably determine the scope of appraisal according to the application of the parties and the need to find out the facts of the case. The appraisal agency shall conduct appraisal within the scope of appraisal entrusted by the people's court.

The understanding of the appraisal period

The appraisal period is the time limit for the appraisal agency to complete the appraisal, which is generally reasonably determined by the people's court and the appraisal agency according to the disputed situation and relevant regulations. The appraisal period for the construction cost category is stipulated in 3.7.1 of the "Construction Project Cost Appraisal Specification" (GB/T51262-2017). The appraisal period shall be determined by the appraisal agency and the people's court according to the amount of construction cost and complexity involved in the disputed object of the appraisal project.

Counted from the day after the appraisal agency receives the evidence materials handed over by the people's court according to regulations. With the approval of the people's court, the time required to wait for the parties to submit, supplement or resubmit evidence, inspect the scene, etc., shall not count the time limit for personal appraisal. With reference to Article 5.17 of the "Norms for Judicial Appraisal Procedures for Construction Projects", the appraisal agency shall complete the appraisal of the entrusted items within 60 working days from the date of receipt of the appraisal engagement letter issued by the people's court or the signing of the "Agreement on Judicial Appraisal of Construction Projects".

If the appraisal involves complex, difficult, special technical problems or the inspection process takes a long time, after consultation with the people's court and approval of the person in charge of the appraisal agency, the time for completing the appraisal may be extended, and each extension shall generally not exceed 60 working days. The time required for supplementing or re-extracting the appraisal materials during the appraisal process, and for the judicial appraiser to review the scene, go to the location of the appraisal project for inspection and retrieve the appraisal materials shall not be included in the appraisal time limit.

On the necessity of cross-examination of authentication materials

Article 34, paragraph 1, of the Supreme People's Court's Several Provisions on Evidence in Civil Litigation stipulates that the people's court shall organize the parties to cross-examine the identification materials. Materials that have not been cross-examined shall not be used as the basis for identification. Article 104 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law stipulates that the people's court shall organize the parties to cross-examine the authenticity and legality of the evidence and the relevance of the facts to be proved, and to explain and debate whether the evidence has probative force and the size of the probative force.

Evidence that can reflect the true situation of the case, is related to the facts to be proved, and the source and form comply with the law shall be used as the basis for determining the facts of the case. Uncross-examined appraisal materials may have problems with authenticity, legality, and relevance, and corresponding appraisal opinions may also have problems.

Therefore, the identification materials used in the appraisal opinions must be cross-examined, which is a procedural requirement and a prerequisite for the adoption of the appraisal opinions. According to Article 34 of the Construction Engineering Interpretation, if the appraisal institution uses the uncross-examined village materials as the basis for appraisal, the people's court shall organize the parties to cross-examine the uncross-examined materials.

If it is determined by cross-examination that it cannot be used as the basis for appraisal, the corresponding appraisal opinion shall not be used as the basis for determining the facts of the case. That is, without cross-examination of the appraisal materials, the validity of the appraisal opinion is not universally denied, but after cross-examination, if it is considered that it cannot be used as the basis for appraisal, the corresponding appraisal opinion shall not be adopted.

When applying the provisions of this article, the following points should be noted

First, the purpose of the people's court to organize the parties to cross-examine the identification materials in dispute is to identify the identification materials required for identification. If, after cross-examination, it is believed that the identification materials cannot be used as the basis for determining the facts of the case, the identification opinion cannot be identified based on this part of the materials, otherwise the identification opinion of the corresponding part will not be accepted.

II. If the appraisal materials used in the appraisal opinion have not been cross-examined, the remedy is supplementary cross-examination. If the cross-examination deems that it cannot be used as the basis for appraisal, the appraisal opinions made on the corresponding part of the materials shall not be used as the basis for determining the facts of the case. On the contrary, they may be used. III. If the appraisal materials used in the appraisal opinion have not been cross-examined, in the absence of supplementary cross-examination, directly adopting the appraisal opinion is suspected of procedural violations.

Disclaimer: The views in this article are for exchange and discussion only, not as a basis for handling cases. Please criticize and correct the deficiencies in this article.

About the Author

Shi Wenhui Lawyer

Deputy Director of Zhiheng Haikou Management Committee

Zhiheng Haikou Equity Senior Partner

Director of Zhiheng Haikou Construction Engineering Department

Commercial mediator of Hainan Free Trade Port

Hainan Lawyers Association Construction Engineering and Real Estate

Deputy Director of Professional Committee

Contact number: 18689665886

Unit Address: Binhai Avenue, Longhua District, Haikou City

17th Floor, Block B, Baifang Plaza, No. 105

ZHIHENG

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Deputy Director of the Management Committee of Guangdong Zhiheng (Haikou) Law FirmShi WenhuiWritten by a lawyer"Integration of Construction Law Provisions and Case Application"It has been officially published, and the book is published and distributed by the Law Press. The book has a total of 580,000 words. It was officially published in the first edition in February 2023 and printed for the first time in February 2023.

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