Process of performing construction-related judicial expertise in Vietnam

Process of performing construction-related judicial expertise in Vietnam (Internet image)

Regarding this issue, LawNet would like to answer as follows:

1. Matters of construction-related judicial expertise in Vietnam

According to Article 3 of Circular 17/2021/TT-BXD, the matters of construction-related judicial expertise in Vietnam include:

- Judicial expertise on the compliance with the provisions of the law on construction planning, construction investment, housing and real estate business, including:

+ The judicial expertise on the compliance with regulations of law on construction planning and construction investment activities in the following stages: formulation and management of planning; formulation of construction investment projects, construction survey, constructional designs, construction work execution, acceptance and handover to put the works into service, works operation and maintenance;

+ The judicial expertise on the compliance with the law on housing and real estate business, including: ownership, purchase, sale, transaction, lease, housing and real estate management,

- Judicial expertise on construction quality includes: quality assessment of construction survey, construction design, construction materials, components, construction products, construction equipment, construction parts construction processes and works; assessment of the causes of construction incidents, causes of construction damage.

- Judicial expertise on work construction costs, including:  judicial expertise on total estimated investment, work construction estimates, the construction fixed-budget; payment and final statement of construction contracts, payment and settlement of construction investment capital and other related issues; judicial expertise on housing and real estate values.

2. Process of performing construction-related judicial expertise in Vietnam

Specifically, in Article 10 of Circular 17/2021/TT-BXD, the process of performing construction-related judicial expertise includes:

Step 1: Receipt of solicitation and request for expertise

- The construction-related judicial expertise organization or individual receives the decision on solicitation or request for expertise; checks the completeness and validity of documents, and subjects of expert opinions (if any) delivered as prescribed at Point b, Clause 1 of Article 10 of Circular 17/2021/TT-BXD;

- The delivery and receipt of documents, subjects of expert opinions shall comply with Article 27 of the Law on Judicial Expertise 2012. 

In case the subject of expert opinions cannot be enclosed with the decision on solicitation or request for judicial expertise, the expertise solicitor or requester and construction-related judicial expertise organization or individual shall make a record of handover of the subject of expert opinions at the scene where the case of which the expert opinions are solicited or requested is located according to regulations;

- In case the documents serving the assessment are incomplete or invalid, within 5 working days, the construction-related judicial expertise organization or individual shall send a written request to the expertise solicitor or requester for completion;

- In case of refusal of expert opinions as prescribed in Clause 2, Article 11 and Point b, Clause 1, Article 24 of the Law on Judicial Expertise 2012 (amended in 2020) or in case it is not possible to conduct judicial expertise as prescribed in Article 34 of the Law on Judicial Expertise 2012:

The judicial expertise organization or individual shall make a written notice of the reason to the expertise solicitor or requester within 05 working days from the date of receipt of the decision on soliciting or requesting expertise.

Step 2: Preparation for expert opinions

- Construction-related judicial expertise organizations and individuals need to set up an outline and estimate of assessment expenses and request an advance payment of assessment to send them to the expertise solicitor or requester.  The content of expertise outline at least includes:

+ Grounds for expertise performance: the decision on solicitation or request for expertise; legal regulations, lists of technical regulations, applicable standards and other grounds (if any);

+ Details about the organization or individual performing the expertise;

+ Details about the subject and matter of the assessment; the process and method of performing the expertise; laboratory name, list of equipment used (if any); other necessary contents to serve the expertise performance;

+ Time and progress for performance;

+ Estimation of accompanying assessment costs;

- The expertise solicitor, requester shall organize the consideration and approval of the outline and estimate of the assessment cost and advance payment of the assessment expense at the request of the construction-related judicial expertise organization or individual. 

Where appropriate, the expertise solicitor or requester may hire an organization or individual that fully meets the conditions as prescribed to verify the outline and estimate of expenses as a basis for acceptance. 

The agreement on performance of expertise between the expertise solicitor, requester and the construction-related judicial expertise organizations or individuals shall be made in the form of contract or in other forms of document as prescribed by law.

Step 3: Performance of judicial expertise

- Construction-related expertise organizations and individuals shall provide expert opinions according to the approved outline; expertise conclusions are made according to Article 32 of the Law on Judicial Expertise 2012 (amended in 2020) and satisfy the expertise solicitation or request;

- In the course of implementation, the construction-related judicial expertise organization or individual must make a document recording the expertise process under Article 31 of the Law on Judicial Expertise 2012 (amended in 2020);

- In case it is necessary to supplement documents to provide expert opinions, within 5 working days, the construction-related judicial expertise organization or individual shall send a written request to the expertise solicitor or requester for supplementation.

The duration from when the construction-related judicial expertise organization or individual sends a written request until receiving additional documents is not included in the assessment time. 

In case the documents are not supplemented sufficiently at the request, the construction-related judicial expertise organization or individual has the right to refuse giving expert opinions.

Step 4: Handover of expertise conclusions and pay expertise expenses

The construction-related judicial expertise organization or individual is responsible for handing over expertise conclusions to the expertise solicitor or requester and making a written record. The expertise solicitor or requester is responsible for paying expertise fees to construction-related expertise organization or individual according to regulations.

Step 5: Attending the trial

At the court's request, a representative of a construction-related expertise organization or construction-related expertise individual participates in the court hearing to explain the contents of the expertise conclusion.

The court is responsible for arranging a suitable position for judicial experts when participating in court proceedings as prescribed in Clause 5, Article 44 of the Law on Judicial Expertise 2012 (amended in 2020) and pay the travel expenses and allowances for experts attending court sessions in accordance with the law on extra money for court hearing attendance.

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