Circular 04/2014/tt-Bxd: A Guide To Some Of The Content Of Judicial Expertise In The Investment Construction

Original Language Title: Thông tư 04/2014/TT-BXD: Hướng dẫn một số nội dung về giám định tư pháp trong hoạt động đầu tư xây dựng

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CIRCULAR Guide and some of the content of judicial expertise in investment activity build _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pursuant to the law No. 16/2003/QH11 on November 26, 2003;
Pursuant to the law the judicial assessment of the 2012/13, QH13 on June 20, 2012;
Basing the Ordinance No. 02/2012/UBTVQH13 dated 28 March 2012 on the cost assessment, valuation; expenses for witnesses, translator in the proceedings;
Pursuant to Decree No. 62/2013/ND-CP dated 25 June 2013 of government functions, tasks, powers and organizational structure of the Ministry of construction;
Pursuant to Decree No. 15/2013/ND-CP of June 2 in 2013 of the Government on the management of the quality of construction works;
Pursuant to Decree No. 85/2013/ND-CP on July 29, 2013 of government regulation and details measures to enforce the law on the judicial inspection;
Pursuant to Decree No. 12/2009/ND-CP on December 2, 2009 on the management of government investment project construction; Decree No. 83/2009/ND-CP on October 15, 2009 by the Government about amending and supplementing a number of articles of Decree No. 12/2009/ND-CP;
Proposal of the Director General of the State inspection of the quality of construction works, construction Minister issued circulars some content about judicial expertise in investment construction.
Chapter I GENERAL PROVISIONS article 1. Scope and objects 1. Scope: this circular regulates conditions of capacity, disclosure of individuals, judicial authorities, apply professional standards, standards of judicial expertise, guidelines and procedure of the judicial supervision and implementation costs of judicial expertise in investment construction.
2. Objects: this circular apply to individuals, the organizations that are related to judicial supervision in construction investment activity on the territory of Vietnam.
Article 2. Explanation of terms In this circular, the following words are interpreted as follows: 1. the judicial inspection of construction works (hereinafter referred to as the judicial inspection of building) is the individual, the judicial authorities built using the knowledge, means, scientific method Professional, technical, to reviews, conclusions about the expertise with respect to the matter of referendum, requires expertise in building investment activities according to the referendum of the agency conducting the proceedings, the person conducting the proceedings or at the request of the person requesting inspection (hereinafter abbreviated to the party requesting inspection) under the provisions of the law.
2. The individual evaluation of building justice includes: appraiser justice building, the judicial inspection of building work.
3. the judicial authorities build include: judicial authorities build work and judicial expertise office building.
4. the judicial inspection of building is necessary, reasonable amount to pay for the work of the judicial inspection due to personal, judicial authorities build made are calculated pursuant to the provisions of this circular and the other provisions of the relevant laws.
Article 3. The content of the judicial inspection of building 1. The judicial assessment of the compliance with the provisions of the law in construction activities include the phases: from project construction, surveying, building design, construction and building works and mining use, maintenance works.
2. the judicial inspection of the quality build includes: quality survey construction, building design, building materials, construction products, construction equipment, buildings, parts of buildings and construction issues.
3. the judicial inspection of investment costs, the value of construction works and other related costs include: the assessment of the total investment, the construction estimate, settlement of capital construction, the rest of the works and other related issues.
Article 4. Apply professional standards, standards in the operation of the judicial inspection regulation, professional standards applied in the operation of the judicial inspection of building is the national technical regulation, standards to be applied in construction activities in accordance with the law.
Chapter II CONDITIONS of CAPACITY and PUBLISHED PERSONAL INFORMATION, JUDICIAL AUTHORITIES article 5 BUILDING. The condition of capacity building judicial assessor, Justice examiner building according to the assessor of the justice building, the judicial inspection of building work is the Vietnam citizens, resident in Vietnam meet specified in point a, b paragraph 1 article 7 of law judicial inspection and meet the following conditions : 1. for judicial assessment of the compliance with the provisions of the law in construction activity: a) Has real experience from 5 years and over do one of these jobs: Project Manager construction, construction supervision, construction control or governance of building consistent with the content of the judicial inspection registration construction;
b) certified professional training in project management or professional supervision of construction or professional training certificate, the certificate of practice: tender, audit, valuation engineer under the provisions of the law on building consistent with the content of the judicial inspection registration building.
2. for the assessment of the quality of Justice: a) case of quality building survey or construction design:-Have practical experience from 5 years and over do one of these jobs: survey of building, construction design, construction inspection accord with the content of the judicial inspection register;
-Certificate of practice building survey or building design under the rules.
b) where quality of materials, construction products, construction equipment:-Have practical experience from 5 years and over do one of these jobs: building design, construction supervision, construction methods, building inspection accord with the content of the judicial inspection register;
-The auditing profession trained to build according to the regulations.
c) case parts quality construction works, buildings and construction issues:-Have practical experience from 5 years and over do one of these jobs: building design, construction supervision, construction inspection accord with the content of the judicial inspection register;
-Certificate of practice building design or construction supervision as prescribed;
-The auditing profession trained to build according to the regulations.
3. for the assessment of Justice about investment costs, the value of construction works and other related costs: a) Has real experience from 5 years and over do one of these jobs: Project Manager construction, building design, building control or manage the cost of construction works in accordance with the posted content sign the judicial inspection of construction;
b) certificate of practice prescribed valuation engineer.
Article 6. Conditions of the capacity of the Organization of the judicial inspection of construction work of the judicial authorities to build work is auditing organizations build capacity consistent with the object and the content on demand, require inspections. The other construction consultancy organization when making judicial inspection building must meet the following conditions: 1. for judicial assessment of the compliance with the provisions of the law in construction: a) has the power to do one of these jobs: project management in construction construction supervision, consistent with the content of the judicial inspection register;
b) presided personally assess meet specified in clause 1 5 of this circular.
2. for the assessment of the quality of Justice: a) case of quality building survey or construction design:-has the power to do one of these jobs: survey of building, construction design, construction design verification in accordance with suitable subscription content expertise of Justice building;
-The individual presiding examiner implementation meet specified in point a of Paragraph 2 article 5 this circular.
b) where quality of materials, construction products, construction equipment:-has the power to do one of these jobs: building design, construction methods, building construction supervision in accordance with appropriate subscription content expertise of Justice building;
-The individual presiding examiner implementation meet specified in point b of Paragraph 2 article 5 this circular.
c) case parts quality construction works, buildings and construction issues:-has the power to do one of these jobs: building design, construction supervision in accordance with appropriate subscription content expertise of Justice building;
-The individual presiding examiner implementation meet specified in point c of Paragraph 2 article 5 this circular.
3. for the assessment of Justice about investment costs, the value of construction works and other related costs: a) has the power to do one of these jobs: building design, construction, management auditing investment costs of building works in accordance with suitable subscription content expertise of Justice building;
b) presided personally assess meet specified in Clause 3 5 of this circular.
Article 7. Conditions of the capacity of the Office of the judicial inspection of building 1. Established and active registration certificate is granted according to the provisions of the law on the judicial inspection and legal texts concerned.
2. Have the equipment guarantee the assessment according to the subscription content assessment of the judiciary building.
3. meet the requirements for the competence of the judicial authorities to build work consistent with the content of the judicial inspection registration building.
Article 8. Appointed assessor of the justice building 1. Building judicial assessor appointed under the provisions of article 9 of law judicial inspection.
2. The Authority appointed appraiser of building justice:

a) The building appointed appraiser of building justice for individuals is the servant in ministries, ministerial agencies; individuals in the public or State enterprises in ministries, ministerial agencies;
b) provincial people's Committee appointed assessor of Justice for individuals not in the range specified in point a of Paragraph 2 of this.
3. Individual registration appointment as assessor of the justice building to provide information according to the form prescribed in annex 1 attached to this circular and the collection of related records under the provisions of article 8 of law judicial examiner sent the Ministry of construction or the provincial people's Committee to be considered for appointment under the authority provided for in Paragraph 2 of this article.
4. judicial construction appraiser needs to expand inspections, provide information related to the content of the additional assessment according to the model in annex 1 attached to this circular to be appointed according to the rules.
Article 9. Registration, disclosure of personal information, the organization performs the judicial expertise to build 1. Registration of personal information, the judicial authorities to build: a) for building judicial assessor then appointed registration profile is the profile registration information. The Ministry of construction, the provincial people's Committee announced the judicial assessor information building on electronic information page as defined in point a of Paragraph 2 of this.
b) individuals in need is justice examiner building work to provide information according to annex 1 attached herewith submit the Ministry of construction (for individual cases are public servants in ministries, ministerial agencies; individual business units in public or State enterprises under the Ministry Ministerial agencies), or send the provincial people's Committee (for the case of the other individual) to be considered for publication as specified;
c) consulting organization that needs the judicial authorities is built according to the collection information in Appendix 2 attached to this circular posted on the Ministry of construction (for the case of the organization is the public or State enterprises in ministries, ministerial agencies or provincial people's Committee (for the case of the other institutions) to be considered disclosure under the provisions;
d) judicial expertise office building provides information in Appendix 2 attached to this circular sent to the provincial people's Committee in place to allow the operation to be considered for publication as specified;
DD) the Ministry of construction, the provincial people's Committee to receive, inspect, review your registration information the judicial examiner announced the construction work of the judicial authorities, construction work, the examiner office building under the judicial authority. Case records registered information published has not yet full, valid, within 7 working days from the receipt of the record, the Ministry of construction, the provincial people's Committee sent the text of individual proposals, the organisation added, finishing as a rule;
e) When there are changes, adjust the information for individual assessment of Justice building (unit of work, permanent address, content of the judicial inspection building, the qualifications, certificates, certified professional training related to the content of the judicial inspection of construction), the judicial authorities of (name of organization building , business registration certificate, the address, the content of the judicial inspection of construction), the individual, the Organization was announced is responsible for providing the information to change The build or the provincial people's Committee. After 10 working days from receipt of sufficient information, the Ministry of construction, the provincial people's Committee has the responsibility to check and update the information on the page of electronic information as specified.
2. Publish the list and information of the individual, the judicial authorities to build: a) the Ministry of construction, the provincial people's Committee of the published list and judicial assessor information constructed according to the contents in annex 1 attached to this circular on electronic information page under the authority within 10 working days from when the decision of appointment;
b) the Ministry of construction, the provincial people's Committee of the published list and information of the judicial inspection of building work, the Organization of the judicial inspection of building work, the examiner office building justice according to the contents in the Appendix 1 and Appendix 2 attached to this circular on electronic information page under the jurisdiction within 30 working days from upon receipt of the application registration information;
c) within 30 days from the date of the provincial people's Committee of the published list and personal information, judicial authorities in local building on electronic information page under the jurisdiction of the provincial people's Committee, the set list and send information about the Ministry of construction to General disclosure.
Chapter III the order and PROCEDURE of the JUDICIAL INSPECTION DONE BUILDING the article 10. The choice of the individual, the organisation made a judicial inspection of building 1. The party requesting inspection of personal choice, judicial authorities to build practical experience and capacity conditions consistent with the object, the content is on the bridge, and inspection requirements have been published according to the provisions of this circular.
2. where no choice are individuals, the judicial authorities of construction was announced as prescribed in this circular, the party requesting inspection suggested The building or State Administration about building in the local personal introduction, organization of response capacity under the provisions of this circular in addition to personal list the Organization was announced, according to the regulations.
Article 11. Receiving referendum, requires the judicial inspection of building 1. Upon receipt of the decision on the request text, judge justice building; personally, the organization is on the bridge, asking judge is responsible for receiving and holding the assessment according to the content requirements, referendum, except refuse as defined in item 2 article 11, Paragraph 1, point b article 24 judicial inspection Law and cases not taken judicial inspection as specified in article 34 of law judicial inspection.
The agreement made between the party requesting inspection and assessment of individuals, implementation of the judicial inspection of construction is shown by the contract or by other text forms as prescribed by the law.
2. Individual cases, the organization is on the bridge, the examiner refused the request made, the examiner must have text stating the reasons as prescribed in clause 2 article 11 or a d clause 2 article 24 judicial inspection Law.
Article 12. Affairs, admitted expertise of Justice objects to build 1. The case of the referendum, required expertise with the subject, the examiner, the examiner must object to getting established thereon. Content delivered thereon, the examiner objects to be created according to the provisions in clause 2 article 27 law of judicial inspection.
2. in case the referendum, demanding judicial construction inspection do not accompany the examiner objects such as buildings, parts of buildings, the individuals, the judicial authorities of construction, the party requesting inspection and the relevant parties must come to the scene where the incident is on expertise to set up a delivery status of construction works or the Department of construction works for the individual, the organisation made a judicial inspection of the construction.
Article 13. Implementation of the judicial inspection of building 1. Individuals, organizations make judicial inspection and building inspection requests Parties to submit the outline done inspections. The content outline of the assessment included the following basic content: a) the directory of national technical regulation, standards are applied;
b) the object and scope of the evaluation;
c) staff conducted the assessment, who was assigned to coordinate implementation of the assessment, the information about the capacity of the host and the individuals performing the assessment;
d) institution name and list the individual was hired to join the examiner (case organization hire or other individuals have the appropriate capacity to perform one or a number of content-related job evaluation);
DD) method performs the assessment;
e) Laboratory Directory, directory of the device being used (if any);
g) assess costs, the expected time of completion of the assessment;
h) other conditions prescribed by law to perform the assessment. Where necessary, the individual, the organisation made a judicial inspection suggested building inspection requirements for parties to make preliminary surveys the examiner objects to create the outline of assessment, unless the law otherwise.
2. the party requesting the assessment consider the outline to make the assessment. Depending on the nature of the incident is on demand, ask the examiner, the examiner may request Parties to consult of the State administration of building on the content of the outline.
3. Individuals, judicial authorities build notification in writing to the party requesting inspection said the personnel changes made the assessment or other changes related to the implementation process as examiners arise volume, adjust the time to complete the examination. (if any).
4. In the process of implementation, the person presiding must assess the text recognition process and assess results according to the provisions of article 31 of the law on the judicial inspection. The text noted the assessment process was established in the form of a diary, and page numbers of the party requesting inspection. The text noted the process and results of assessment include: the implementation of actual daily examiner; personnel, equipment and implementation; the monitoring results, measurements (if available); the problem arises if happens in the process of implementation and other related issues.
Article 14. The records of the judicial inspection of personal construction, the judicial authorities must build up the report concluded the assessment and collection of other related documents into the record of the judicial inspection of construction as defined in clause 1 article 33 of law judicial inspection. The report concluded the judicial inspection of construction including the following: 1. assess Base: a) They, who made the assessment; implementation expertise;

b) Name the agency conducting the proceedings; they, who conducted the proceedings on inspections; text of referendum or examiner, who requested the assessment; text time referendum, requires expertise;
c) examiner contract or other agreement under the provisions of the law.
2. General information about the examiner objects (scales, status characteristics ...) and other related information (natural conditions, geological, etc.).
3. the content of the referendum, required inspections.
4. Methods of implementation evaluation.
5. The experimental results, analysis, reviews.
6. Conclusions on the content of the referendum decision, the examiner required text.
7. time, place made, complete the assessment.
Chapter IV INSPECTION of JUSTICE BUILD article 15. The cost of implementing the judicial inspection of building 1. Judicial authorities determine the construction costs of the assessment on the basis of content, audience referendum examiner, the examiner workload needs done and deals with the party requesting inspection. Assess costs determined by estimate according to the regulations on the management of construction cost and in accordance with the workload of the outline had been approved. Judicial inspection cost to build including some or all of the following costs: a) the cost of establishing the judicial assessment outline;
b) costs survey the current state of the work, projects or parts of buildings (if any);
c) laboratory sample cost, cost of experiments;
d) costs of research document profile;
Computing costs), cost of assessment, reporting and the conclusion;
e) shipping costs, management costs;
g) costs related to participation in the process of the proceedings and other necessary expenses.
2. The individual evaluation of Justice built when making the assessment entitled fostering mode of judicial inspection and other costs according to the provisions of the law.
Article 16. The advance payment, the costs of the judicial inspection of building 1. The advance inspection fees for individuals, the judicial authorities are conducting construction before making the assessment. Advance level and tempo of the advance was the agreement on the basis of the Organization's proposal, individuals perform inspections and make sure enough to make inspections for the referendum, required.
2. Upon the conclusion of the judicial inspection, building inspection request Parties have the responsibility to organize the payment, settlement costs judicial inspection building for individuals, organizations and assess the parties concerned under the regulation.
Order and procedure of advance payment, the costs of the judicial inspection is made under the provisions of Ordinance No. 02/2012/UBTVQH13 dated 28 March 2012 on the cost assessment, valuation; expenses for witnesses, translator in the proceedings and the other legal texts concerned.
Chapter V IMPLEMENTATION article 17. Content management for the State judicial building inspection 1. The Ministry of construction: a) instructions, check the implementation of the judicial inspection of construction according to the provisions of this circular in nationwide;
b) appointing, dismissing the assessor of Justice building; the choice of the judicial inspection of construction work as defined;
c) announced the list of appraiser justice building, the examiner building judicial work of the judicial authorities, construction work, judicial expertise office building on nationwide; announced the sanctions in the operation of the judicial inspection of construction and type from the list of individuals, the judicial authorities the construction violates the provisions of this circular on electronic information page of the Ministry of construction;
d) elaborate and implement the program, plan professional training related to the judicial inspection of building, legal knowledge for judicial assessor team building;
DD) check, inspection and complaint resolution, to report on the activities of the judicial inspection authority under construction management;
e) yearly overall about the judicial inspection activities to build and submit the report to the Ministry of Justice to report to the Government.
Department of State inspection on quality of construction works-The build is help make the job on.
2. provincial people's Committee: a) instructions, check the implementation of the judicial inspection of construction according to the provisions of this circular in locally;
b) appointing, dismissing the assessor of Justice building; the choice of the judicial inspection of building work, the decision establishing the judicial examiner office building under the provisions;
c) announced the construction of judicial appraiser, the examiner building judicial work of the judicial authorities, construction work, judicial expertise Office build locally on electronic information page of the provincial people's Committee and the set list posted on the Ministry of construction to public disclosure;
d) fostering professional organizations, professional and legal knowledge for assessor justice building, the examiner building judicial work locally;
DD) check, inspection and complaints, accusations of judicial assessment build upon the authority of management;
e) reported Construction Kit on the Organization of the judicial inspection activities, build locally before June 15, the annual synthesis report to the Ministry of Justice.
Construction Department is the agency that helps provincial people's committees to perform the job on.
Article 18. Transitional regulations 1. The judicial inspection of construction being done before the day this circular effect shall continue to comply with the provisions of circular No. 35/2009/TT-BXD DATED October 5, 2009 by Ministry of construction guidelines of the judicial inspection of the construction.
2. judicial assessor construction has been appointed as prescribed before the day this circular in force pursuant to the instructions of circular gathered information and send it to the Ministry of construction of the provincial people's Committee or by the authority managed to be published on the page of electronic information.
3. The organization has been announced as specified in circular No. 35/2009/TT-BXD, pursuant to the instructions of circular this tune, provide additional information and to submit to the Ministry of construction to continue publication on electronic information page of the Ministry of construction.
Article 19. Terms of implementation 1. This circular has effect from June 15, 2014 and replaces circular No. 35/2009/TT-BXD DATED October 5, 2009 by Ministry of construction guidelines of the judicial inspection of the construction.
2. Ministries, ministerial agencies, government agencies; The people's Committee, the central cities; the individual, the organization participated in the assessment of Justice building and the individual, the organization concerned is responsible for implementing the provisions of this circular. In the process if there are obstacles and suggest to send comments about the Ministry of construction to be Guide./.