Consolidated document 09/VBHN-BXD in 2020 consolidating Circular guiding the content of judicial assessment in construction investment activities issued by the Ministry of Construction

CIRCULAR

CERTAIN INSTRUCTIONS ABOUT JUDICIAL EXPERTISE IN INVESTMENT AND CONSTRUCTION ACTIVITIES

Circular No. 04/2014/TT-BXD dated April 22, 2014 of the Minister of Construction, providing certain instructions about judicial expertise on investment and construction activities, in force from June 15, 2014, shall be amended and supplemented by:

The Circular No. 02/2019/TT-BXD dated July 1, 2019 of the Minister of Construction, providing detailed instructions about the periodic reporting regime; amending, supplementing and replacing certain articles of the Circulars related to the periodic reporting regime under the state management of the Ministry of Construction, in force on August 15, 2019.

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

Pursuant to the Law on Judicial Expertise No.13/2012/QH13 dated June 20, 2012;

Pursuant to the Ordinance No. 02/2012/UBTVQH13 dated March 28, 2012 regarding expertise and appraisal costs; costs and expenses paid to witnesses and interpreters in any judicial proceedings;

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

Pursuant to the Government’s Decree No. 15/2013/ND-CP dated February 6, 2013 on construction works quality management;

Pursuant to the Government's Decree No. 85/2013/ND-CP dated July 29, 2013, regulating details and measures of implementation of the Law on Judicial Expertise;

Pursuant to the Government's Decree No. 12/2009/ND-CP dated February 12, 2009 on management of investment and construction projects; the Government's Decree No. 83/2009/ND-CP dated October 15, 2009 on amendments and supplements to certain articles of the Decree No. 12/2009/ND-CP;

Upon the request of the Director of Construction Quality Inspectorate; [1]

The Minister of Construction hereby promulgates the Circular providing certain instructions about judicial expertise in investment and construction activities (hereinafter referred to as construction judicial expertise).

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of application

1. Scope of application:

This Circular prescribes competence requirements, disclosure of information about judicial expertise persons and entities, application of professional regulations and standards of judicial expertise, instructions about processes and procedures for judicial expertise, and expertise costs or expenses incurred from construction-related judicial proceedings.

2. Subjects of application:

This Circular shall apply to entities and persons involved in the judicial expertise on investment and construction activities.

Article 2. Interpretation

For the purposes of this Circular, terms used herein shall be construed as follows:

1. Judicial expertise in the construction-related legal proceedings (hereafter referred to as construction-related 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. Individuals rendering the construction judicial expertise include appointed construction-related judicial experts and construction-related subject-matter judicial experts.

3. Organizations rendering the construction judicial expertise (or judicial expertise service providers) include construction-related subject-matter judicial expert organizations and construction-related judicial expertise offices.

4. Expenses or costs 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. Subject matters of construction-related 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

COMPETENCE REQUIREMENTS, DISCLOSURE OF INFORMATION ABOUT INDIVIDUAL JUDICIAL EXPERTS AND JUDICIAL EXPERTISE SERVICE PROVIDERS

Article 5. Competence requirements of appointed construction-related judicial experts and subject-matter construction-related judicial experts

Appointed construction-related judicial experts and subject-matter construction-related judicial experts 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. With respect to the judicial expertise on compliance with legislative regulations on investment and construction activities:

a) Having at least 5 years’ hands-on experience in performing one of the following activities: management of construction investment projects, construction superintendence, construction inspection or state management over construction in accordance with contents of the registration of construction-related judicial expertise;

b) Having the certificate of participation in professional training in project management or the practicing certificate in construction superintendence or other  professional training and practicing certificate in tender, inspection, and valuation engineers according to the provisions of construction law in accordance with the contents of registration for provision of construction judicial expertise service.

2. With respect to the judicial expertise on construction quality:

a) Judicial expertise on quality of construction surveys or construction designs:

- Having at least 5 years’ hands-on experience in performing one of the activities, including construction surveying, design and inspection, in accordance with contents of the registration of construction-related judicial expertise;

- Having the practicing certificate in construction surveying or design according to regulations in force.

b) Judicial expertise on quality of building materials, products and equipment:

- Having at least full 5 years’ hands-on experience in performing one of the activities, including construction design, superintendence, testing and inspection, in accordance with contents of the registration of construction-related judicial expertise;

- Have been trained in the construction inspection profession in accordance with regulations in force.

c) Judicial expertise on quality of construction parts, construction works and judicial expertise on failure of construction works:

- Having at least 5 years’ hands-on experience in performing one of the activities, including construction design, superintendence and inspection, in accordance with contents of the registration of construction-related judicial expertise;

- Having the practicing certificate in construction design or superintendence according to regulations in force;

- Have been trained in the construction inspection profession in accordance with regulations in force.

3. With respect to the judicial expertise on construction costs, value of construction works and other related costs:

a) Having at least full 5 years’ hands-on experience in performing one of the following activities: management of construction investment projects, construction design, inspection and management of construction investment costs or expenses, in accordance with contents of the registration of construction-related judicial expertise;

b) Holding quantity survey engineer practicing certificate in accordance with regulations in force.

Article 6. Competence requirements of subject-matter construction judicial expertise service providers

Subject-matter construction judicial expertise service providers must function as construction inspection or assessment service providers with capabilities suitable to the objects and contents of the judicial expertise solicitation or request. In order to carry out the construction judicial expertise, other construction consulting organizations must meet the following requirements:

1. With respect to the judicial expertise on compliance with legislative regulations on investment and construction activities:

a) Having competence in performing one of the following activities: management of construction investment projects and construction superintendence in accordance with the contents of the registration of the construction judicial expertise;

b) Individuals in charge of carrying out the judicial expertise must meet regulations laid down in clause 1 of Article 5 herein.

2. With respect to the judicial expertise on construction quality:

a) Judicial expertise on quality of construction surveys or construction designs:

- Having competence in performing one of the following activities: construction surveying, construction design, review and examination of construction designs in accordance with regulations in force, conforming to the contents of registration for the construction judicial expertise;

- Individuals in charge of carrying out the judicial expertise must meet regulations laid down in point a of clause 2 of Article 5 herein.

b) Judicial expertise on quality of building materials, products and equipment:

- Having competence in performing one of the following activities: construction design, testing and superintendence in accordance with regulations in force, conforming to the contents of registration for the construction judicial expertise;

- Individuals in charge of carrying out the judicial expertise must meet regulations laid down in point b of clause 2 of Article 5 herein.

c) Judicial expertise on quality of construction parts, construction works and judicial expertise on failure of construction works:

- Having competence in performing one of the following activities: construction design and superintendence in accordance with regulations in force, conforming to the contents of registration for the construction judicial expertise;

- Individuals in charge of carrying out the judicial expertise must meet regulations laid down in point c of clause 2 of Article 5 herein.

3. With respect to the judicial expertise on construction costs, value of construction works and other related costs:

a) Having competence in performing one of the following activities: construction design, management of construction investment costs or expenses in accordance with the contents of the registration of the construction judicial expertise;

b) Individuals in charge of carrying out the judicial expertise must meet regulations laid down in clause 3 of Article 5 herein.

Article 7. Competence requirements of construction judicial expertise offices

1. Each office must be established and issued with a service registration certificate in accordance with the Law on Judicial Expertise and other relevant legal documents.

2. Having equipment qualified for carrying out the judicial expertise on the contents of registration for the construction judicial expertise.

3. Meeting competence requirements set out by subject-matter construction judicial expertise service providers in conformity with the contents of registration of the construction judicial expertise.

Article 8. Appointment of construction-related judicial experts

1. Judicial experts shall be appointed according to Article 9 in the Law on Judicial Expertise.

2. Authority to appoint construction judicial experts

a) The Ministry of Construction shall appoint civil servants of ministries and ministerial-level agencies, or individuals of public non-business units or state enterprises of ministries and ministerial-level agencies, as construction judicial experts;

b) Provincial-level People's Committees shall appoint individuals not covered by point a of clause 2 of this Article as judicial experts.

3. Candidates for appointment of judicial experts shall provide information according to the form prescribed in Appendix 1 hereto and submit relevant documents prescribed in Article 8 of the Law on Judicial Expertise to the Ministry of Construction or provincial-level People's Committees to seek their approval of appointment within their competence specified in Clause 2 of this Article.

4. Construction judicial experts wishing to broaden their scope of expertise shall provide information related to the additional scope of judicial expertise services according to the form given in Appendix 1 hereto for consideration and appointment according to regulations in force.

Article 9. Registration and public disclosure of information about individuals or organizations rendering construction judicial expertise services

1. Registration of information about individuals or organizations rendering construction judicial expertise services:

a) As regards a construction judicial expert, the application for appointment shall serve as the application for registration of public disclosure of information. The Ministry of Construction and provincial-level People's Committees shall post information about construction judicial experts on their websites under the provisions of point a of Clause 2 of this Article.

b) Individuals wishing to become subject-matter construction judicial experts shall fill in the form given in Appendix 1 hereto and submit it to the Ministry of Construction (applicable to civil servants of ministries and ministerial-level agencies; employees of public service units or state-owned enterprises under the control of ministries or ministerial-level agencies), or sending it to provincial-level People's Committees (applicable to other individuals) for their review and decision according to regulations in force;

c) Consulting organizations wishing to become subject-matter construction judicial expertise providers shall prepare information required in Appendix 2 hereto for submission to the Ministry of Construction (applicable to organizations that are public service units or state-owned enterprises under the control of ministries or ministerial-level agencies), or sending such information to provincial-level People's Committees (applicable to other organizations) for their review and decision according to regulations in force;

d) Construction judicial expertise offices shall provide information using the form given in Appendix 2 hereto and submit such information to provincial-level People's Committees where the permission to render judicial expertise services is granted in order to make service announcements in accordance with regulations in force; 

dd) The Ministry of Construction and provincial-level People's Committees shall receive and conduct the verification and review of applications for registration of announcement of information about subject-matter construction judicial experts, and subject-matter construction judicial expertise service providers, or construction judicial expertise offices, under their authority.  If the application for registration of announcement of information about construction judicial experts is not sufficient and valid, within 07 working days from the receipt of that application, the Ministry of Construction and the People's Committee of the province must request the submitting individual or organization in writing to modify and finalize the submitted application according to regulations in force;

e) When there is any change or adjustment of information about the construction judicial expert (employing unit, permanent address, contents of construction judicial expertise, diploma, certificate, qualification for professional training related to the contents of construction judicial expertise), or the construction judicial expertise service provider (name, business registration certificate, address and contents of construction judicial expertise), listed individuals and organizations shall supply changed information to the Ministry of Construction or provincial-level People's Committees. After 10 working days of receipt of sufficient information, the Ministry of Construction and provincial-level People's Committees shall check and post updated information on websites according to regulations.

2. Announcement of the list and information about individual judicial experts and judicial expertise service providers:

a) The Ministry of Construction and provincial People's Committees shall publish the list and information of appointed judicial experts by completing the form given in Appendix 1 hereto on their websites under their authority within 10 working days of receipt of appointment decisions;

b) The Ministry of Construction and provincial People's Committees shall post the list and information of subject-matter construction judicial experts and subject-matter construction judicial expertise service providers and construction judicial expertise offices by completing the form given in Appendix 1 and Appendix 2 hereto on their websites under their authority within 30 working days of receipt of all valid applications for announcement of registration information;

c) Within 30 working days from the date on which the provincial People's Committee posts the list and information of local construction judicial experts and judicial expertise service providers on their website under their jurisdiction, the provincial People’s Committee shall compile the list and information for submission to the Ministry of Construction for their combined announcement.

Chapter III

PROCESSES AND PROCEDURES FOR RENDERING OF CONSTRUCTION JUDICIAL EXPERTISE

Article 10. Selection of individuals or organizations rendering construction judicial expertise services

1. The party requesting judicial expertise selects any individual and organization providing construction judicial expertise that have acquired practical experience and competence suitable to the subjects, contents of the judicial expertise solicitation or request, and that have already been announced in accordance with provisions of this Circular.

2. In case of failing to select individuals or organizations rendering judicial expertise which have been announced under the provisions of this Circular, the requesting party may request the Ministry of Construction or local construction state authorities to recommend individuals and organizations meeting competence requirements prescribed in this Circular that are other than legally listed individuals and organizations.

Article 11. Receipt of solicitations or requests for construction judicial expertise

1. When receiving the solicitation decision or written request for construction judicial expertise, individuals and organizations that are solicited or requested to conduct construction judicial expertise shall have to handle and conduct construction judicial expertise according to the request or solicitation contents, except for cases of refusal prescribed in Clause 2 of Article 11, Point b of Clause 1 of Article 24 in the Law on Judicial Expertise and cases where the judicial expertise is not allowed as prescribed in Article 34 in the Law on Judicial Expertise.

Agreements on judicial expertise service between the requesting party and individuals or organizations conducting construction judicial expertise shall be made in the form of binding contract or other documentary forms as prescribed by law.

2. In case any individual or organization that is solicited or requested to render construction judicial expertise refuses to do so, there must be a written document clearly stating the reasons specified in clause 2 of Article 11 or point d of clause 2 of Article 24 in the Law on Judicial Expertise.

Article 12. Delivery of objects of construction-related judicial expertise

1. In case the solicitation or request for construction judicial expertise is sent together with an expertised object, the handover and receipt of such object must be recorded in a report. The report proving such handover and receipt of the expertised object shall be made according to clause 2 of Article 27 in the Law on Judicial Expertise.

2. In case the solicitation or request for construction judicial expertise does not enclose the expertised object, such as construction works, part of construction works, the individual or organization conducting construction judicial expertise, the requesting party and other relevant parties must visit the places where judicial expertise events take place to make a record of the handover of the current status of construction works or parts of construction works to individuals or organizations conducting construction judicial expertise.

Article 13. Rendering of construction judicial expertise services

1. Individuals and organizations conducting construction judicial expertise shall formulate and send requesting parties schemes for carrying out the judicial expertise.  A judicial expertise scheme shall be comprised of the following basics:

a) List of applicable national technical regulations and standards;

b) Subjects and scope of construction judicial expertise;

c) List of personnel carrying out the judicial expertise, the person assigned to lead the judicial expertise, information about competence of the lead judicial expert and persons involved in the judicial expertise;

d) Name of the organization and the list of individuals hired to get involved in the judicial expertise (in case of hiring other organization or individual having legally prescribed competence to perform one or several parts of works related to any contents of the judicial expertise);

dd) Construction judicial expertise approach;

e) List of laboratories, list of equipment in use (if any);

g) Judicial expertise costs or expenses; proposed deadline for completion of the judicial expertise;

h) Other requirements for judicial expertise prescribed by law.

Where necessary, individuals and organizations conducting construction judicial expertise shall request the requesting party to allow the preliminary survey on the expertised object to support the formulation of judicial expertise scheme, unless otherwise prescribed by law.

2. The requesting party shall consider the scheme as a basis to carry out the construction judicial expertise.  Depending on the nature of the subject matter solicited or requested for the construction judicial expertise, the requesting party may consult with the state authority in charge of construction affairs on the scheme contents.

3. Individuals and organizations rendering the construction judicial expertise notify the requesting parties in writing of changes in judicial expertise personnel and other changes related to the judicial expertise process such as additional workloads, adjustment of deadline for completion of the judicial expertise, etc. (if any).

4. In the course of implementation, the person in charge of the judicial expertise must make a written record of the process and results of the judicial expertise according to Article 31 of the Law on Judicial Expertise. Written record of the judicial expertise process must be made in the form of diary paginated and certified by the requesting party. The written record of the judicial expertise process and results shall be comprised of the followings: Implementation of daily physical inspection; personnel and equipment used for carrying out such inspection; results of monitoring and measurement (if any); problems likely to arise during the implementation period and other relevant issues.

Article 14. Documents and records on construction judicial expertise

Individuals and organizations rendering construction judicial expertise must make reports on judicial expert conclusions and consolidate other relevant documents into a construction judicial expertise dossier as prescribed in Clause 1 of Article 33 in the Law on Judicial Expertise. Report on construction judicial expert conclusions shall include the followings: 

1. Bases for the construction judicial expertise:

a) Full name of the person or organization rendering the judicial expertise;

b) The name of the procedure-conducting authority; full name of the person conducting legal proceedings who solicits the judicial expertise; number of the written document on soliciting the judicial expertise or full name of the person requesting the judicial expertise; time of receipt of the written document on solicitation or request for the judicial expertise;

c) Judicial expertise contract or other written agreement prescribed by law.

2. General information about the subject of judicial expertise (i.e. scale, status features, etc.) and other related information (e.g. natural and topographical conditions, etc.).

3. Contents of judicial expertise solicitation or request.

4. Construction judicial expertise approach.

5. Testing, analysis and assessment results.

6. Conclusions regarding requirements set out under the solicitation decision or the written request for the judicial expertise.

7. Time and location of rendering and completion of the judicial expertise.

Chapter IV

CONSTRUCTION JUDICIAL EXPERTISE COSTS AND EXPENSES

Article 15. Costs and expenses for rendering of construction judicial expertise services

1. The organization rendering the construction judicial expertise shall determine costs and expenses for the judicial expertise on the basis of the object and subject matter of the judicial expertise solicitation, the quantity of judicial expertise to be performed and the agreement with the party requesting the judicial expertise. Costs and expenses for the judicial expertise shall be determined by making the estimate under regulations on management of construction investment costs and according to the quantities of the approved scheme. Costs and expenses for the construction judicial expertise shall be composed of several or all of the following:

a) Costs and expenses for formulation of the judicial expertise scheme;

b) Costs and expenses for surveying of the current status of construction works, work items or parts of construction works (if any);

c) Sampling and testing costs or expenses;

d) Document study costs and expenses;

dd) Costs of calculation, verification, costs of evaluation, reporting and conclusion;

e) Transportation and management costs and expenses;

g) Costs and expenses related to participation in the legal proceedings and other necessary costs.

2. Individuals rendering construction judicial expertise, when performing the judicial expertise, shall be entitled to judicial expertise allowances and payments of other expenses prescribed by law.

Article 16. Advances on and payment of construction judicial expertise costs and expenses

1. Advance payments to individuals and organizations conducting construction judicial expertise may proceed before commencement of the construction judicial expertise.  The advance payment level and progress of the advance payment shall be agreed upon at the request of the organization or individual conducting the judicial expertise and must ensure that the amount is sufficient to meet the requirements of the requested or solicited judicial expertise.

2. Upon receiving construction judicial expertise conclusions, the party requesting the judicial expertise shall take charge of the payment and settlement of the construction judicial expertise costs or expenses for individuals or organizations conducting the judicial expertise and other related parties according to the law.

The processes and procedures for the advance payment and payment of the judicial expertise expenses or costs shall comply with the Ordinance No. 02/2012/UBTVQH13 dated March 28, 2012, regarding expertise and evaluation expenses or costs; costs or expenses for witnesses or interpreters in legal proceedings and other relevant legal documents.

Chapter V

IMPLEMENTATION PROVISIONS

Article 17. Subject matters of state management of construction judicial expertise

1. Ministry of Construction:

a) Provide guidance on and examine the implementation of the construction judicial expertise according to this Circular on a nationwide scale;

b) Appoint and dismiss construction judicial experts; select subject-matter construction judicial experts according to regulations;

c) Announce the list of construction judicial experts, subject-matter construction judicial experts, organizations rendering subject-matter construction judicial expertise, construction judicial expertise offices nationwide; announce the sanctioning forms for violations arising from construction judicial expertise activities and remove those that violate the provisions of this Circular from the list of individuals or organizations rendering construction judicial expertise on the website of the Ministry of Construction;

d) Formulate and conduct programs and plans on professional training related to construction judicial expertise and legal knowledge for the team of construction judicial experts;

dd) Examine, inspect and resolve complaints and denunciations about construction judicial expertise activities under their management;

e) Annually, make the general review of construction judicial expertise activities and send review reports to the Ministry of Justice for its synthesis and report to the Government.

Construction Quality Inspectorate controlled by the Ministry of Construction is the agency that helps Ministry of Construction carry out the above tasks.

2. Provincial-level People’s Committees:

a) Provide guidance on and examine the implementation of the construction judicial expertise according to this Circular on a local scale;

b) Appoint and dismiss construction judicial experts; select subject-matter construction judicial experts and decide to establish construction judicial expertise offices according to regulations;

c) Announce appointed construction judicial experts or subject-matter construction judicial experts, organizations rendering subject-matter construction judicial expertise and local construction judicial expertise offices on the websites of the provincial People's Committees and gather the lists and send them to the Ministry of Construction for general announcement purpose;

d) Provide professional training and training in legal knowledge for local appointed construction judicial experts and subject-matter construction judicial experts;

dd) Examine, inspect and resolve complaints and denunciations about construction judicial expertise activities under their management;

e) [2] (repealed)

Department of Construction is the authority assisting the provincial People’s Committee in performing the aforesaid tasks.

Article 18. Transitional provisions

1. Cases of construction judicial expertise being performed before the effective date of this Circular shall continue to comply with the provisions of Circular No. 35/2009/TT-BXD dated October 5, 2009 of the Ministry of Construction, providing guidance on construction judicial expertise.

 2. Construction judicial experts who have been appointed under regulations before the effective date of this Circular shall, based on the guidance of this Circular, collect and send their information to the Ministry of Construction or provincial-level People's Committees according to their competence to be published on the website.

3. Organizations that have been announced in accordance with Circular No. 35/2009/TT-BXD, based on the guidance of this Circular, may adjust existing information or provide additional information and send them to the Ministry of Construction for posts on the website of the Ministry of Construction.

Article 19. Entry into force [3]

1. This Circular shall enter into force from June 15, 2014, replacing the Circular No. 35/2009/TT-BXD dated October 5, 2009 of the Ministry of Construction on instructions about the construction judicial expertise.

2. Ministries, Ministry-level agencies and Governmental bodies, People’s Committees of centrally-affiliated cities and provinces, individuals and organizations involved in the construction judicial expertise, and individuals and organizations concerned, shall carry out responsibilities prescribed herein. In the course of implementing this Circular, if there is any query arising, feedbacks should be sent to the Ministry of Construction for its further guidelines and decision on possible solutions./.

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