The entrusting party is the people's court or the parties and other participants in the proceedings. According to the specific conditions of the evaluated project, the entrusting party has entrusted a cost consulting agency with a certain level of qualification and good social reputation in writing. The power of attorney shall specify in detail: the entrusted unit; Identification requirements; Materials provided; Brief introduction of the case, entrusting unit and entrusting time.
Two, the cost consulting institutions to accept the entrustment and appraisal of the preparatory work
The cost consulting agency shall decide whether to accept the entrustment according to its own actual situation. Those who accept the entrustment shall sign and seal on the bottom of the power of attorney or the receipt of entrustment, and select the appropriate chief appraiser and other appraisers according to the evaluation project. The main appraisers should know the case as soon as possible, submit the relevant information needed for the appraisal to the entrusting party in written form, and prepare the appraisal plan at the same time.
1, what an appraiser should have.
Qualified appraisers should have: high professional ethics, strong professional and technical strength, certain organizational ability, relevant legal knowledge, certain writing skills, and an unavoidable relationship with the entrusted appraisal project. Among them, the determination of the chief appraiser is very important, because it will be responsible for: selecting other appraisers, coordinating internal and external relations, and preparing evaluation plans; Organize on-site investigation and write evaluation report.
2. Rights and obligations of appraisers
Rights and obligations of judicial appraisers; The Supreme People's Court Fa Fa Fa [2001] No.23, Interim Provisions on Judicial Appraisal of People's Courts, Chapter II, Article 7 stipulates: The rights of appraisers: (1) To know the case and ask the client to provide the information needed for appraisal; (two) to inspect the scene, carry out relevant inspections, and ask the parties about the appraisal. When necessary, they may apply to the people's court ex officio to collect appraisal materials and decide on the appraisal methods and disposal of materials; (three) independently explain the appraisal opinions, and when they are inconsistent with other appraisal opinions, there is no need to sign the appraisal documents; (4) refusing to accept illegal entrustment. Article 8 stipulates that the obligations of appraisers include: (1) respecting science and observing professional ethics; (2) Keeping the case secret; (3) Issue the appraisal conclusion in time; (4) Appearing in court according to law to read the appraisal conclusion and answer questions related to the appraiser.
3, the main information required for the project cost evaluation includes the following contents.
(1) the prosecution and the defense, the court investigation record;
(2) Engineering design drawings, design changes, on-site visas, technical contact sheets and records of the blue prints.the design of all relevant disciplines recognized by both parties;
(3) Construction contracts and various supplementary agreements signed by both parties;
(4) List of main materials approved by both parties, equipment purchase invoice, processing order contract and materials provided by Party A;
(5) project budget (statement);
(6) The bid-winning notice and relevant bidding documents shall be provided for the bidding project;
(7) Identification and investigation meeting records (inquiry records) and on-site investigation records;
(8) Construction organization design and annual image progress record approved by the construction unit;
(9) Other materials related to the project cost evaluation determined by both parties.
4, project cost appraisal plan
According to Article 21 of Chapter V of the Supreme People's Court [2001] No.23 Interim Provisions on Judicial Appraisal of People's Courts, general judicial appraisal shall be completed within 30 working days, and difficult judicial appraisal shall be completed within 60 working days. The chief appraiser shall arrange the specific appraisal time according to the appraisal period of the client:
(1) Time required for marking papers, familiarizing with drawings, design changes, on-site visa and understanding the contract agreement;
(2) Time required for field survey (complex projects may require multiple surveys);
(3) The time needed to calculate the engineering quantity, take the quota and calculate the material price difference;
(4) the time required for centralized research on the problems encountered in the evaluation process;
(5) Making on-site investigation records and inquiry records (generally dealing with photographic records of the subject matter);
(6) The parties refer to the record and sign it.
5. Exploration records and inquiry records
(1) indicate the time, place, inspector or inquirer, on-site person or inquired person, and record;
(2) Remember the questions and answers, the recognition or disputes of the parties and key sentences, and accurately remember the survey data. If it is necessary to draw a survey map, it should be clear and accurate;
(3) At the end, the parties refer to the transcript and sign it (if they can't read it, read it by fingerprint);
(4) Records must be filed for future reference.
6, identification data need to verify and supplement should pay attention to the following questions.
The process of collecting expert information and on-site investigation must be organized by the client, so that the client can understand the process of obtaining information and enhance the legitimacy, seriousness and authority of the evidence collection process.
If there is no as-built drawing or the drawings of the identified parts are inconsistent, field survey shall be conducted according to the characteristics of the construction project, with survey drawings, on-site photos, on-site videos and related written records as the main ones. Because there are a lot of data needed for project cost appraisal, most of them cannot be collected at one time. When asking both sides, it is best to list the contents of the inquiry first to avoid omission.
Three. Contents of cross-examination and interrogation transcripts
According to Article 47 of the Supreme Law Interpretation [2001] No.33 "Several Provisions on Evidence in Civil Proceedings", evidence should be presented in court and cross-examined by the parties. Evidence that has not been cross-examined cannot be used as the basis for determining the execution of a case. All evidence used in the project cost evaluation shall be cross-examined by the parties. The interrogation record shall generally include the following contents:
Is there a supplementary contract or agreement?
Is the concrete for building commercial concrete or in-situ mixing concrete? If commercial concrete is used, is there a supply contract for commercial concrete?
Does the foundation need to be backfilled (from outside to inside), and what is the transportation distance? Is the hard aggregate gravel or crushed stone?
Is the foundation earthwork outsourced separately? How far is the earthwork transportation?
Is the scaffold made of steel pipes or wooden poles? Are there any materials and equipment supplied by Party A in this project? Please provide a list of materials.
Is the template steel or wood?
The way to dig? What kind of machinery is used?
Is the peripheral decoration project constructed at the same time as the civil main project? What is the contract amount (including cooperation fee)?
Where is the dividing line between water supply and drainage, electrical engineering and outdoor engineering?
Is the construction water and electricity metered by single meter?
Other materials related to project cost evaluation.
Four, engineering quantity calculation, charging quota and calculation of material price difference should be accurate and reasonable, the same as the normal project settlement. (omitted)
Verb (abbreviation of verb) shows the preliminary appraisal conclusion to the original defendant. And modify the appraisal conclusion according to the actual situation.
Due to the complexity of the construction project and the principles of accuracy, fairness and openness of the project cost appraisal, it should be presented to the original and the defendant after the preliminary appraisal conclusion is formed. If there are omissions and errors, the appraisal conclusion should be revised according to the actual situation.
Six, determine the appraisal conclusion, form a formal appraisal book (report)
Contents of Appraisal Letter: the Supreme People's Court Fa Shi [20065438+0] No.33 "Several Provisions on Evidence in Civil Proceedings" Article 29 The appraisal letter issued by an appraiser shall have the following contents:
1, the name of the client and the entrusted appraisal content;
2. Materials entrusted for evaluation;
3, the basis of identification and the use of scientific and technological means;
4. Description of the evaluation process;
5. Clear appraisal conclusion;
6. Proof of the appraiser's appraisal data;
7. Signature and seal of appraisers and appraisal institutions.
The content of the appendix information is necessary.
1. Appraisal power of attorney (it should be specified: entrusting unit; Identification requirements; Materials provided; Brief introduction of the case and the entrusting unit);
2, the project budget (junction) documents provided by the participating units;
3. Contracts and supplementary agreements;
4. Evaluation of investigation records;
5 evaluation unit qualification certificate and evaluation personnel qualification;
6. Other relevant materials.
Seven. appear in the court
The Supreme People's Court issued [20065438+0] No.23 "Interim Provisions on Judicial Appraisal of People's Courts", chapter 2, paragraph 4, stipulates: read the appraisal conclusion in court according to law and answer questions related to appraisal.
The appraisers who appear in court on behalf of intermediary institutions should pay attention to: use appropriate words, express accurately and clearly, and do not quarrel with the parties. Because many parties are emotional in court and often use excessive language. Due to professional habits, agents ad litem have different ways of speaking. The appraisers who appear in court should be sober and calm, and control their emotions. Maintain the dignity and image of judicial appraisers.
VIII. Other related issues
1, appraiser quits.
The Supreme People's Court Fa Fa Fa [2001] No.23 "Interim Provisions on Judicial Appraisal of People's Courts", Chapter II, Article 9, points out: An appraiser should withdraw in any of the following circumstances: (1) The appraiser is a party to the case or a close relative of the party; (2) The close relatives of the appraiser have an interest in the case; (3) The appraiser has served as a witness, defender or agent ad litem in this case; (four) other circumstances that may affect the accurate identification.
2. suspend the identification.
The Supreme People's Court Fa Fa Fa [20065438+0] No.23 "Interim Provisions on Judicial Appraisal of People's Courts" points out in Chapter 5, Article 22: If the appraisal time is affected by one of the following circumstances, the appraisal shall be suspended: (1) The subject or other subjects are in an unstable state, which affects the appraisal conclusion; (two) can not be inspected at the designated time and place; (three) due to special needs to make an appointment or wait for the inspection results; (4) supplementary materials are needed.
3. Identification is over.
Article 22 of the Supreme People's Court Fa Fa Fa Fa [2001] No.23 stipulates that the appraisal may be terminated under any of the following circumstances: (1) The necessary appraisal materials cannot be obtained; (two) the appraiser or the inspected person does not cooperate with the inspection, and still does not cooperate after doing the work; (three) in the process of identification, the case was withdrawn or closed; (4) Other circumstances that make the appraisal impossible.
4. How to confirm the authenticity of the information released by the parties.
When the parties need to provide evidence, they must provide copies and originals, bear legal responsibility for the authenticity of the evidence provided by them, and require the parties to issue valid certification documents and commitment letters. The appraiser is not responsible for the authenticity of the evidence.
5. In the process of appraisal, the parties need to provide relevant evidence, but the parties think that the evidence is unfavorable to them, delay providing it, or take out the evidence after the preliminary conclusion of appraisal comes out. How to deal with it?
If the factory fails to provide evidence within the specified time, and there is no written document to apply for an extension of the time for providing evidence, according to Article 34 of the Provisions of the Supreme People's Court Law Interpretation No.33 on Evidence in Civil Litigation: "If a party fails to provide evidence within the time limit, it shall be deemed as giving up the right to provide evidence". Take responsibility. If it is not provided within the specified time, but only after the preliminary appraisal conclusion comes out, and it affects the identification result of the appraisal conclusion, it may be accepted by the entrusting party, handled according to the new entrustment, and a supplementary appraisal power of attorney shall be issued to the appraisal unit.
6. Several situations of project cost evaluation.
(1) The identification materials are complete and the conditions are good. This situation is ideal, and everything can be identified according to normal identification procedures.
(2) Incomplete identification data and poor conditions. The appraiser shall notify the original defendant in writing to complete the materials needed for appraisal within the specified time (according to Article 33 of the Civil Procedure Law, the time limit for proof shall not be less than 30 days).
(3) There is almost no identification data, and the conditions are very poor. This happens from time to time in project cost evaluation, mainly for two reasons. (1) Due to the long construction period of construction projects, many units have poor file management, and it is difficult to provide complete as-built drawings and settlement data.
(two) the original building has changed its use, and it is difficult to conduct on-site investigation because it is covered by new decoration or is in use.
If the design drawings are incomplete and neither party can provide them, the design unit can check the base map according to the project name. If there are no design drawings or design units, (1) can be compared according to the same type, the same place and the same period (preferably agreed by both parties). (2) Field investigation: measure the external dimensions of the building, and drill holes to detect the thickness and label of the internal materials. (3) For buildings that cannot detect the thickness and label of internal materials, nondestructive testing method can be adopted (this method should be cautious when the cost is high). What should I do when the evidence of both parties is contradictory? Theoretically, it should be judged by the people's court, but in the actual appraisal work, due to the professionalism of the project cost, the judgment of the appraiser is basically the main one. The appraiser's judgment principle should be: (1) The engineering design drawings have contradictory design specifications and standards (consult professional designers if necessary); (2) If there is any dispute about the charging level, it can be based on the construction contract, the charging voucher of the construction unit or the building category. (3) When the price of building materials is disputed, the market price information of the same period shall prevail; (4) When the construction measures are controversial, the normal construction organization design shall prevail.
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