Thông tư 35/2009/TT-BXD

CIRCULAR

GUIDING CONSTRUCTION-RELATED JUDICIAL ASSESSMENT

Pursuant to the November 26, 2003 Construction Law;
Pursuant to September 29, 2004 Ordinance No. 24/2004/PL-UBTVQH11 on Judicial Assessment of the National Assembly Standing Committee (below referred to as Judicial Assessment Ordinance);
Pursuant to the Government's Decree No. 17/2008/ND-CP of February 4, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Construction;
Pursuant to the Government's Decree No. 67/2005/ND-CP of May 19, 2005, detailing a number of articles of the Judicial Assessment Ordinance;
Pursuant to the Government's Decree No. 209/2004/ND-CP of December 16, 2004, on quality management of construction works;
Pursuant to the Government's Decree No. 12/ 2009/ND-CP of February 12, 2009, on management of work construction investment projects.
The Ministry of Construction guides construction-related judicial assessment as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. Scope of regulation

This Circular defines specialized construction-related judicial assessment organizations; guides the order of and procedures for construction-related judicial assessment; and specifies expenses for construction-related judicial assessment conducted by specialized construction-related judicial assessment organizations.

In case procedure-conducting agencies or persons request judicial assessors to conduct construction-related judicial assessment in specific cases, the Judicial Assessment Ordinance applies.

2. Subjects of application

This Circular applies to organizations and individuals involved in construction-related judicial assessment in the Vietnamese territory.

Article 2. Interpretation of terms

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

1. Construction-related judicial assessment means the use of knowledge, equipment and scientific, technical and professional methods to evaluate and make conclusions on professional issues related to construction activities, construction works or work items and construction products at the request of procedure-conducting agencies or persons (below collectively referred to as assessment requesters) for the settlement of civil judgments and cases.

2. Construction activities include the formulation of construction plannings or work construction investment projects, construction survey, work construction designing, work construction, work construction supervision, management of work construction investment projects, selection of construction contractors, and other activities related to work construction.

3. Construction work means a product turned out from human labor, construction materials and equipment installed in the work, which is attached to land and built according to design, and may be composed of underground, ground surface, underwater and water surface parts.

4. Construction products include construction supplies, materials and structures and equipment used for and installed in a construction work.

5. Specialized construction-related judicial assessment organization (below referred to as specialized organization) means an organization conducting construction-related judicial assessment which satisfies the requirements specified in Article 4 of this Circular.

Article 3. Domains of construction-related judicial assessment

Domains of construction-related judicial assessment include:

1. Judicial assessment of construction activities.

2. Judicial assessment of construction works or parts thereof.

3. Judicial assessment of construction products.

Depending on the objects and contents requested for assessment, assessment requesters shall select relevant specialized organizations under regulations.

Chapter II

SPECIALIZED ORGANIZATIONS

Article 4. Requirements on organizations for conducting construction-related judicial assessment

To conduct construction-related judicial assessment, specialized organizations must satisfy the following requirements:

1. Having the legal entity status and registering the practice of construction activities suitable to the objects and contents requested for assessment.

2. Professional capability

a/ Judicial assessment of construction activities: Specialized organizations must be fully capable of performing jobs relevant to the objects and contents requested for assessment (for example, in case of request for assessment of construction survey reports or construction design dossiers of grade-I works, the requested specialized organization must be fully capable of conducting construction survey of. or designing, works of grade I or higher).

b/ Judicial assessment of construction works or parts thereof:

- For construction works, specialized organizations must satisfy all capability conditions specified in Articles 5 and 6 of the Construction Ministry's Circular No. 22/2009/TT-BXD of July 6, 2009, detailing construction capability conditions, relevant to the objects and contents requested for assessment;

- For construction work parts, specialized organizations must be capable of performing jobs relevant to the objects and contents requested for assessment (for example, in case the requested objects are structural parts of a work and requested contents are the quality of concrete of those structural parts, requested specialized organizations must be capable of testing concrete quality norms and assessing the quality of concrete of structural parts).

c/ Judicial assessment of construction products: Specialized organizations must be those conducting assessment and inspection relevant to the objects and contents requested for assessment and must satisfy all capability conditions specified in Clause 3. Section II of the Science and Technology Ministry's Circular No. 08/2009/TT-BKHCN of April 8, 2009. guiding requirements, order and procedures for registration of conformity assessment.

3. Not having committed violations in construction activities under law for the last 3 years.

4. Being announced as capable organizations by the Ministry of Construction under Article 8 of this Circular.

Article 5. Cases in which specialized organizations may not conduct construction-related judicial assessment

A professional organization falling into any of the following circumstances may not conduct construction-related judicial assessment for a requested case:

1. Having benefits and obligations related to the case under the procedural law.

2. Being requested to conduct re-assessment of the same matter in a case it has assessed, unless otherwise provided for by law.

3. When there are explicit grounds to believe that the specialized organization is likely to be neither objective nor impartial when conducting assessment.

Article 6. Responsibilities and powers of specialized organizations

1. Specialized organizations have the following responsibilities:

a/ To conduct assessment according to the requested contents and assign their members with capability relevant to the objects and contents requested for assessment under Clause 5. Article 11 of this Circular to conduct assessment;

b/ To conduct assessment within the prescribed time limit. When more time is needed for assessment, to promptly notify such to assessment requesters;

c/ To appoint assessors to appear as summoned by assessment requesters and to explain assessment conclusions upon request;

d/ To preserve construction-related judicial assessment objects and documents related to construction-related judicial assessment cases;

e/ To keep confidential assessment results, information and documents:

f/ To refund assessment expenses and pay compensation for damage caused to concerned organizations and individuals due to their intentional provision of untruthful assessment conclusions.

2. Specialized organizations have the following powers:

a/ To request assessment requesters to provide information and documents related to objects of assessment; to ensure safety and security of and create conditions for assessment.

b/ To select necessary and suitable methods of conducting construction-related judicial assessment according to the requested contents.

c/ To use additional survey or test results or professional conclusions of other organizations or individuals for construction-related judicial assessment.

d/ To give independent construction-related judicial assessment conclusions.

e/ To refuse to conduct construction-related judicial assessment when:

- Failing to satisfy the requirements specified in Article 4 of this Circular;

- Falling into any of the cases specified in Article 5 of this Circular:

- Supplied assessment objects and relevant documents are inadequate or valueless for making assessment conclusions;

- Given time is not enough for assessment;

- Having other plausible reasons.

f/ To have other powers provided for by law.

Article 7. Obligations and powers of individuals assigned by specialized organizations to conduct construction-related judicial assessment

1. When being assigned by specialized organizations to conduct construction-related judicial assessment, individuals have the following obligations:

a/ To adhere to judicial assessment principles provided for by law.

b/ To observe assessment plans approved by assessment requesters.

c/ To show up as summoned by assessment requesters and explain assessment conclusions when requested.

d/ To keep confidential assessment results, information and documents.

e/ To take responsibility before specialized organizations and law for damage caused to concerned individuals or organizations due to their intentional provision of untruthful assessment conclusions.

f/ To have other obligations provided for by law.

2. When being assigned by specialized organizations to conduct construction-related judicial assessment, individuals have the following powers:

a/ To access and be provided with information and documents related to assessment objects for judicial assessment.

b/ To refuse to conduct judicial assessment assigned by specialized organizations when supplied assessment objects and relevant documents are inadequate or valueless for making assessment conclusions, when time is not long enough for conducting assessment or when having other plausible reasons.

c/ To be ensured safety when conducting assessment or participating in proceedings in the capacity as construction-related judicial assessors.

d/ To have other powers provided for by law.

Article 8. Publicization of specialized organizations capable of conducting construction-related judicial assessment

1. Provincial-level Peoples Committees shall annually review, select and propose lists of specialized organizations registering construction practice in localities which are capable of conducting construction-related judicial assessment and send these lists to the Ministry of Construction for evaluation and publicization under regulations.

Provincial-level Construction Departments shall act as the focal point to assist provincial-level People's Committees in performing the above jobs.

2. The Ministry of Construction shall evaluate and publicize on its website lists of specialized organizations proposed by provincial-level People's Committees and concurrently send these lists to the Ministry of Justice.

The State Department for Quality Assessment of Construction Works shall act as the focal point to assist the Minister of Construction in performing the above jobs.

Chapter III

ORDER OF AND PROCEDURES FOR CONSTRUCTION-RELATED JUDICIAL ASSESSMENT

Article 9. Receipt of construction-related judicial assessment requests

When agencies send decisions requesting construction-related judicial assessment, specialized organizations shall receive these decisions and conduct assessment according to the contents requested for assessment unless they may refuse under Point e. Clause 2. Article 6 of this Circular. The agreement on assessment request and execution between the assessment requester and specialized organization shall be made in contract or another written form in accordance with law.

If refusing to receive an assessment request, the requested specialized organization shall send a written notice to the assessment requester, clearly stating the reason.

Assessment requesters that cannot request specialized organizations to conduct construction-related judicial assessment according to the objects and contents requested for assessment may request local agencies in charge of construction state management or the Ministry of Construction to recommend specialized organizations.

Article 10. Transfer and receipt of objects of construction-related judicial assessment

1. In case an assessment request is accompanied by assessment objects, the transfer and receipt of assessment objects must be recorded in writing with details specified in Clause 1, Article 29 of the Judicial Assessment Ordinance.

The transfer and receipt of assessment objects must observe the following regulations:

a/ Assessment objects subject to direct transfer and receipt must be transferred and received at head offices of requested specialized organizations. The transfer and receipt of assessment objects outside head offices of specialized organizations are prohibited.

b/ If assessment objects are sent by post, a representative of the leadership and one staff member of the requested specialized organization shall join in breaking the seal upon receipt of these objects.

c/ If assessment objects are sealed, such seals must be carefully examined before breaking. If detecting that the seals are torn or have signs of change, the requested specialized organization may refuse to receive the objects and write such tearing or change in the seal-breaking record.

2. If an assessment request is not accompanied by an assessment object, such as a construction work or work part, the specialized organization, the assessment requester and related parties shall come to the site involving the requested assessment case in order to make a written record on the actual conditions of the construction work or work part handed over to the specialized organization for assessment.

3. Specialized organizations may request assessment requesters to supply dossiers and documents necessary for making assessment plans and conducting assessment upon receiving assessment objects.

Article 11. Construction-related judicial assessment

1. The specialized organization shall make and send to the assessment requester an assessment plan, comprising:

a/ Process, contents and method of assessment;

b/ Applicable standards and technical regulations:

c/ List of assessors, the person in charge of assessment, and information on the capability of assessors;

d/ Major equipment and laboratories used for assessment;

e/ Funds for assessment, proposed advances and schedule of capital disbursement in the course of assessment;

f/ Projected time of assessment completion:

g/ Other conditions for conducting assessment.

When necessary, the specialized organization may conduct preliminary survey of the assessment objects for working out the assessment plan.

2. The assessment requester shall consider and approve the assessment plan of the specialized organization. Depending on the nature of the case requested for assessment, the assessment requester may consult the construction state management agency before approval.

3. After obtaining the assessment requester's written approval of the assessment plan, the specialized organization shall conduct assessment strictly according to the agreed plan.

The specialized organization shall notify in writing the assessment requester of the replacement of assessors or of other changes related to assessment, such as increase of the volume of jobs or adjustment of the time of assessment completion.

4. The person in charge of assessment shall make a written record of the assessment process under Article 34 of the Judicial Assessment Ordinance.

5. An assigned assessor must satisfy the following conditions:

a/ Having professional qualifications relevant to the nature and volume of the requested job:

b/ The person in charge of assessment must satisfy all capability conditions specified in Article 3 of Circular No. 22/2009/TT-BXD and observe other relevant laws, suitable to the objects and contents requested for assessment, and have at least 10 years' construction experience;

c/ Not falling into any of the cases specified in Article 37 of the Judicial Assessment Ordinance.

6. The requested specialized organization may hire another organization or individual with full capability conditions specified in this Circular to perform one or several jobs related to the requested assessment. The requested specialized organization shall clearly state in the assessment plan names of organizations and the list of individuals hired to conduct assessment.

Article 12. Additional assessment

The assessment requester may require additional assessment if new circumstances of the case are found or when additional assessment is required in the course of assessment. The specialized organization may propose additional assessment if it is necessary for assessment.

Article 13. Conclusions on construction-related judicial assessment

1. The contents of a conclusion on construction-related judicial assessment are specified in Clause 1, Article 35 of the Judicial Assessment Ordinance.

2. A conclusion on construction-related judicial assessment must be signed by the person in charge of assessment and signed and stamped by the at-law-representative of the specialized organization.

Article 14. Compilation and archive of construction-related judicial assessment dossiers

1. A construction-related judicial assessment dossier comprises documents related to the assessment and shall be compiled under Clause 1, Article 36 of the Judicial Assessment Ordinance.

2. Construction-related judicial assessment dossiers shall be archived under regulations after the completion of assessment. Specialized organizations shall preserve and archive assessment dossiers under regulations and produce these dossiers upon request of assessment requesters.

3. Upon the expiration of the time limit for archive of assessment dossiers, specialized organizations shall destroy construction-related judicial assessment dossiers under the law on archive.

Article 15. Re-assessment

1. Re-assessment shall be conducted upon request of assessment requesters under Article 33 of the Judicial Assessment Ordinance.

2. In case of request for the second re­assessment, such re-assessment shall be conducted by an Assessment Council which is set up under decision of the chairperson of the provincial-level People's Committee of the locality where the case requested for assessment occurs. The Minister of Construction shall decide to set up an Assessment Council at the request of the Prime Minister or the proposal of the provincial-level People's Committee if the latter is incapable of conducting re-assessment.

An Assessment Council is composed of at least 3 members, including the chairman and members who must be prestigious and highly professional in the domains relevant to the case subject to assessment.

3. The Assessment Council may base on previous assessment conclusions to make its conclusions or designate a specialized organiza­tion to conduct additional assessment to serve as a basis for making conclusions for re-assessment.

Chapter IV

EXPENSES FOR CONSTRUCTION-RELATED JUDICIAL ASSESSMENT

Article 16. Estimation of expenses for construction-related judicial assessment

1. Based on the objects and contents requested for assessment as well as the nature of the case and the volume of jobs subject to assessment, the specialized organization shall estimate assessment expenses and reach agreement with the assessment requester. Assessment expenses include some or all of the following:

a/ Expense for making the assessment plan;

b/ Survey expense;

c/ Test expense;

d/ Expense for machinery and equipment used for assessment;

e/ Expense for examining dossiers and documents:

f/ Expense for calculation and re-verification;

g/ Expense for making reports and conclusions:

h/ Transport freight, management and other necessary expenses.

2. When it is necessary to conduct the second re-assessment, in addition to the expenses paid to the specialized organization as estimated under Clause 1 of this Article, assessment expenses also include expenses for the operation of the Assessment Council which are estimated by this council under regulations.

Article 17. Funds for assessment

1. For criminal cases

The assessment requester shall pay construction-related judicial assessment expenses to the specialized organization from its annual fund or other lawful funding sources as agreed under law by the parties involved in requested cases.

2. For civil and administrative cases

The assessment requester shall pay construction-related judicial assessment expenses with the money paid by the involved parties to procedure-conducting agencies under the Civil Procedure Law or from ther lawful funding sources as agreed under law by the parties involved in requested cases.

3. In case of urgent or special assessment at the request of a competent agency, assessment funds may be taken from the state budget as decided by a competent agency under regulations.

Article 18. Advance, payment and finalization of construction-related judicial assessment expenses

1. The assessment requester shall consider, agree and approve assessment expenses and advance funds for the specialized organization before conducting assessment: and decide on the levels and schedule of advance at the proposal of the specialized organization provided that such advance must be enough for assessment of the requested jobs.

2. After receiving conclusions on construction-related judicial assessment, the assessment requester shall pay and finalize construction-related judicial assessment expenses for the specialized organization and related parties under regulations.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 19. Transitional handling

From July 1, 2010, only specialized organizations on the list publicized under this Circular may conduct construction-related judicial assessment.

Article 20. Implementation provisions

1. Ministries, ministerial-level agencies, government-attached agencies, provincial-level People's Committees, organizations and individuals engaged in construction activities and other concerned organizations and individuals shall implement this Circular. Any problems arising in the course of implementation should be reported in writing to the Ministry of Construction for guidance and settlement.

2. This Circular takes effect on December 1, 2009.-