Circular No. 35/2009/TT-BXD guiding judicial appraisal in construction

CIRCULAR

Guidelines for Judicial Appraisal in Construction

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Pursuant to the Construction Law dated November 26, 2003;

Based on the Ordinance on Judicial Appraisal No. 24/2004/PL-UBTVQH11 issued by the Standing Committee of the National Assembly on September 29, 2004 (hereinafter referred to as the Ordinance on Judicial Appraisal);

Pursuant to Decree No. 17/2008/NĐ-CP dated February 4, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Based on the Decree No. 67/2005/NĐ-CP issued by the Government on May 19, 2005 detailing the implementation of certain provisions of the Ordinance on Judicial Appraisal;

Based on the Decree No. 209/2004/NĐ-CP issued by the Government on December 16, 2004 on quality management of construction works;

Based on the Decree No. 12/2009/NĐ-CP issued by the Government on February 12, 2009 on project management for investment in construction works;

The Ministry of Construction provides guidelines for judicial appraisal in construction as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

Thông tư này quy định chi tiết khoản 4 Điều 38 Luật Thủy sản số 18/2017/QH14 đã được sửa đổi, bổ sung tại điểm c khoản 21 Điều 14 Luật số 146/2025/QH15.

These Circulars stipulate the organization of specialized judicial appraisal in construction; guide the procedures and formalities for conducting judicial appraisal in construction and the costs of such appraisals carried out by specialized judicial appraisal organizations.

In cases where judicial proceedings agencies or persons conducting judicial proceedings request judicial appraisers or case-specific judicial appraisers to conduct judicial appraisal in construction, they shall follow the provisions of the Ordinance on Judicial Appraisal.

Thông tư này áp dụng đối với tổ chức, cá nhân có liên quan đến hoạt động kinh doanh đối tượng thủy sản nuôi chủ lực trên lãnh thổ Việt Nam.

These Circulars apply to organizations and individuals involved in judicial appraisal activities in construction within the territory of Vietnam.

Article 2. Interpretation of Terms

In this Circular, the following terms shall be understood as follows:

1. Judicial appraisal in construction is the use of knowledge, means, and methods of science, technology, and professional expertise to evaluate and conclude on specialized issues related to construction activities, construction works, or parts of construction works, construction products, according to requests from judicial proceedings agencies or persons conducting judicial proceedings (hereinafter collectively referred to as the requesting party) to serve the resolution of criminal and civil cases.

2. Construction activities include planning construction, developing investment projects for construction works, construction surveying, designing construction works, constructing construction works, supervising construction work construction, managing investment projects for construction works, selecting contractors in construction activities, and other activities related to construction works.

3. Construction works are products formed by human labor, building materials, and equipment installed in the works, fixed in place on land, which may include underground, above-ground, underwater, and above-water components, constructed according to design.

4. Construction products are building materials, components; equipment used and installed in construction works.

5. Specialized judicial appraisal organizations (hereinafter referred to as specialized organizations) are organizations that carry out judicial appraisal in construction meeting the requirements set forth in Article 4 of these Circulars.

Article 3. Fields of Judicial Appraisal in Construction

The fields of judicial appraisal in construction include:

1. Judicial appraisal of construction activities.

2. Judicial appraisal of construction works or parts of construction works.

3. Judicial appraisal of construction products.

Depending on the subject matter and content of the appraisal request, the requesting party selects a specialized organization appropriate to the field of appraisal as prescribed.

Chapter II

SPECIALIZED ORGANIZATIONS FOR JUDICIAL APPRAISAL IN CONSTRUCTION

Article 4. Requirements for organizations when conducting judicial construction appraisal

Organizations specializing in conducting judicial construction appraisal must meet the following requirements:

1. Have legal personality and be registered to practice construction activities in accordance with the subject and content of the requested appraisal.

2. Regarding professional capacity

a) For the field of judicial appraisal on construction activities: the specialized organization must have sufficient capacity as prescribed, capable of performing tasks corresponding to the subject and content of the requested appraisal (for example, if the requested appraisal is a report on the results of construction survey or design documentation for Class I projects, the specialized organization requested must have the necessary conditions to conduct construction surveys or design projects from Class I and above).

b) For the field of judicial appraisal on construction works or parts of construction works:

- In cases where the appraisal subject is a construction work, the specialized organization must meet all the conditions of professional capacity as stipulated in Article 5 and Article 6 of Circular No. 22/2009/TT-BXD dated July 6, 2009 of the Ministry of Construction detailing the conditions of professional capacity in construction activities, corresponding to the subject and content of the requested appraisal;

- In cases where the appraisal subject is a part of a construction work, the specialized organization must ensure the conditions of professional capacity as prescribed by law, capable of performing tasks corresponding to the subject and content of the requested appraisal (for example, if the subject of the request is a structural part of a construction project and the content of the request is the appraisal of the quality of concrete in that structural part, the specialized organization requested must have the ability to test the quality indicators of concrete and have sufficient capacity to assess the quality of concrete in that structural part).

c) For the field of judicial appraisal on construction products: the specialized organization must be an organization conducting appraisal and inspection in accordance with the subject and content of the requested appraisal, having the necessary conditions of professional capacity as stipulated in Clause 3 Section II of Circular No. 08/2009/TT-BKHCN dated April 8, 2009 of the Ministry of Science and Technology guiding the requirements, procedures, and formalities for registering fields of conformity assessment activities.

3. Not having violations in construction activities according to the provisions of the law in the last three years.

4. Being announced by the Ministry of Construction in accordance with Article 8 of this Circular.

Article 5. Cases where specialized organizations are not allowed to conduct judicial construction appraisal

Specialized organizations falling under any of the following circumstances shall not conduct judicial appraisal for the case requested:

1. Having rights and obligations related to the case according to the provisions of the law on litigation proceedings.

2. Being requested to conduct an appraisal again on the same content in a case where this specialized organization has already conducted an appraisal, except in cases where the law provides otherwise.

3. Having clear grounds to believe that this specialized organization may not be impartial or unbiased while conducting the appraisal.

Article 6. Responsibilities and powers of specialized organizations

1. The specialized organization has the responsibility:

a) To conduct the appraisal in accordance with the content requested, arranging personnel to conduct the appraisal with appropriate capacity in accordance with the subject and content of the requested appraisal as stipulated in Clause 5 Article 11 of this Circular;

b) To conduct the appraisal within the required time limit; in cases where additional time is needed to conduct the appraisal, timely notification must be made to the requesting party.

c) To attend the appraisal as summoned by the requesting party and explain the appraisal conclusion upon request.

d) To preserve samples and materials related to the judicial construction appraisal case.

đ) To keep confidential the results of the appraisal, information, and appraisal materials.

e) To refund the appraisal costs and compensate for damages in cases where false conclusions are intentionally provided, causing damage to individuals or organizations involved.

2. The specialized organization has the authority:

a) To request the requesting party to provide information and materials related to the appraisal subject; ensuring safety and security and creating conditions for the appraisal to be carried out.

b) To choose necessary and appropriate methods to conduct judicial construction appraisal in accordance with the content requested.

c) To use supplementary survey results, testing results, or expert conclusions from other organizations or individuals to serve the judicial construction appraisal.

d) To independently issue a judicial construction appraisal conclusion.

đ) To refuse to conduct judicial construction appraisal when:

- Not meeting the requirements for conducting judicial construction appraisal as stipulated in Article 4 of this Circular;

- Belonging to the cases prescribed in Article 5 of this Circular;

- The appraisal subject, related materials provided are insufficient or lack value for the appraisal conclusion;

- There is not enough time to conduct the appraisal;

- There are other legitimate reasons.

e) Other rights as prescribed by law.

Article 7. Obligations and authorities of individuals when assigned by specialized organizations to conduct construction forensic appraisal

1. Individuals assigned by specialized organizations to conduct construction forensic appraisal shall have the following obligations:

a) Adhere to the principles of conducting forensic appraisal as prescribed by law.

b) Comply with the forensic appraisal outline approved by the party requesting the forensic appraisal.

c) Be present at the summons issued by the party requesting the forensic appraisal and explain the forensic appraisal conclusion upon request.

d) Maintain confidentiality regarding the results of the forensic appraisal, information, and appraisal materials.

đ) Bear responsibility before the specialized organization and the law for damages in cases where they intentionally issue false forensic appraisal conclusions causing damage to related individuals or organizations.

e) Other obligations as prescribed by law.

2. Individuals assigned by specialized organizations to conduct construction forensic appraisal shall have the following authorities:

a) Access and be provided with information and materials related to the subject of the forensic appraisal to serve the conduct of forensic appraisal.

b) Refuse to conduct forensic appraisal assigned by the specialized organization if the subject of the forensic appraisal, related materials provided are insufficient or lack value for the forensic appraisal conclusion; if there is not enough time to conduct the forensic appraisal or for other legitimate reasons.

c) Be guaranteed safety when conducting forensic appraisal or participating in litigation as a construction forensic appraiser.

d) Other rights as prescribed by law.

Article 8. Announcing specialized organizations meeting the conditions to conduct construction forensic appraisal

1. Annually, the People's Committee of the province reviews, selects, and proposes a list of specialized organizations registered to practice construction activities within its jurisdiction that meet the conditions to conduct construction forensic appraisal to the Ministry of Construction for examination and announcement in accordance with regulations.

The Department of Construction is the lead agency assisting the People's Committee of the province in carrying out these tasks.

2. The Ministry of Construction examines and announces the list of specialized organizations proposed by the People's Committee of the province on the Ministry of Construction’s electronic information website, simultaneously sending this list to the Ministry of Justice.

The National Appraisal Agency for Construction Quality is the lead agency assisting the Minister of Construction in carrying out these tasks.

Chapter III

PROCEDURES AND FORMALITIES FOR IMPLEMENTING CONSTRUCTION FORENSIC APPRAISALS

Article 9. Acceptance of requests for construction forensic appraisal

When the requesting authority sends a decision requesting construction forensic appraisal, the specialized organization has the responsibility to accept the request decision and organize the forensic appraisal according to the requested content, except in cases where it has the right to refuse as stipulated in Point đ Clause 2 Article 6 of this Circular. The agreement between the requesting party and the specialized organization for the request and implementation of the forensic appraisal is evidenced by a contract or other forms of written documents as prescribed by law.

In case of refusal to accept the request for forensic appraisal, the requested specialized organization must send a written notice to the requesting party and clearly state the reason for not conducting the appraisal.

If the requesting party cannot find a suitable specialized organization to conduct the construction forensic appraisal corresponding to the object and content of the request, they may propose to the local construction management agency or the Ministry of Construction to be introduced.

Article 10. Handing over and receiving objects for judicial forensic construction appraisal

1. In cases where the request for appraisal includes the object to be appraised, the handing over and receiving of such objects must be recorded in a protocol. The content of the protocol for handing over and receiving the object to be appraised shall be established according to Clause 1 of Article 29 of the Judicial Appraisal Ordinance.

The handing over and receiving of objects to be appraised must comply with the following regulations:

a) When the object to be appraised is handed over and received directly, it must be conducted at the premises of the specialized organization requested: strictly prohibiting the handing over and receiving outside the premises of the specialized organization.

b) When the object to be appraised is sent through postal service, the handing over and receiving must involve representatives from leadership and one staff member of the specialized organization requested to participate in opening the seal.

c) If the object to be appraised is sealed, it must be carefully inspected before opening. If the seal is found to be torn or there are signs of tampering, the specialized organization requested has the right to refuse to accept and record this in the opening seal protocol.

2. In cases where the request for appraisal does not include the object to be appraised such as construction projects, parts of construction projects..., the specialized organization, the person requesting the appraisal, and related parties must go to the site where the appraisal is requested to establish a protocol for transferring the current state of the construction project or part of the construction project... to the specialized organization for appraisal.

3. The specialized organization may require the person requesting the appraisal to provide necessary files and documents to serve the preparation of the outline and implementation of the appraisal upon receipt of the object to be appraised.

Article 11. Conducting judicial forensic construction appraisal

1. The specialized organization prepares and sends the person requesting the appraisal the outline for implementing the appraisal. The content of the appraisal outline includes:

a) The process, content, and methods of conducting the appraisal.

b) Technical standards and specifications applied in the implementation of the appraisal.

c) List of personnel conducting the appraisal, the person assigned to lead the appraisal, and information about the qualifications of the individuals conducting the appraisal.

d) Main equipment and laboratories used for the implementation of the appraisal.

đ) Budget for implementing the appraisal, proposal for advance payment and disbursement schedule during the implementation of the appraisal.

e) Estimated time to complete the appraisal.

f) Other conditions for implementing the appraisal.

In case of necessity, the specialized organization may conduct preliminary surveys of the object to be appraised to assist in the preparation of the appraisal outline.

2. The person requesting the appraisal reviews and approves the outline for implementing the appraisal prepared by the specialized organization. Depending on the nature of the matter being appraised, the person requesting the appraisal may seek the opinion of the competent state management agency on construction before approving.

3. After receiving the approval document for the appraisal outline from the person requesting the appraisal, the specialized organization implements the appraisal according to the agreed outline.

The specialized organization must notify the person requesting the appraisal in writing of any changes in the personnel conducting the appraisal or other changes related to the implementation process such as additional workload, adjustment of completion time...

4. During the implementation process, the person leading the appraisal must record the implementation process in accordance with Article 34 of the Judicial Appraisal Ordinance.

5. Individuals assigned to conduct the appraisal must meet the following requirements:

a) Must have appropriate professional capacity suitable for the nature and scale of the work requested.

b) The person assigned to lead the implementation of the appraisal must meet the qualification conditions stipulated in Article 3 of Circular No. 22/2009/TT-BXD and other relevant laws, consistent with the object and content of the requested appraisal, and must have at least 10 years of experience in construction activities.

c) Not fall under any of the circumstances specified in Article 37 of the Judicial Appraisal Ordinance.

6. The specialized organization requested may hire other organizations or individuals who meet the qualification conditions stipulated in this Circular to implement one or several parts related to the content of the requested appraisal. The specialized organization requested must clearly state in the appraisal outline the name of the organization and list of individuals hired to participate in the appraisal.

Article 12. Supplementary Appraisal

The person requesting the appraisal may request supplementary appraisal if new circumstances arise in the case or if additional requirements for supplementary appraisal emerge during the appraisal process. Professional organizations may propose supplementary appraisal if this is necessary for the appraisal work.

Article 13. Construction Judicial Appraisal Conclusion

1. The content of the construction judicial appraisal conclusion is carried out in accordance with the provisions of Clause 1, Article 35 of the Judicial Appraisal Ordinance.

2. The construction judicial appraisal conclusion must be signed by the person in charge of the appraisal and must be signed and stamped by the legal representative of the professional organization in accordance with the regulations.

Article 14. Establishment and Storage of Construction Judicial Appraisal Files

1. The construction judicial appraisal file includes relevant documents and materials related to the appraisal and is established in accordance with the provisions of Clause 1, Article 36 of the Judicial Appraisal Ordinance.

2. The construction judicial appraisal file is stored according to regulations after the completion of the appraisal work. The professional organization is responsible for preserving and storing the appraisal files it has conducted in accordance with the regulations and must present the appraisal files when requested by the person requesting the appraisal.

When the storage period for the appraisal file expires, the professional organization will destroy the construction judicial appraisal file in accordance with the law on archiving.

Article 15. Reappraisal

1. Reappraisal is carried out upon the request of the person requesting the appraisal in accordance with Article 33 of the Judicial Appraisal Ordinance.

2. In cases where a second reappraisal request is made, the reappraisal shall be organized and implemented by the Appraisal Board. The Appraisal Board is decided to be established by the Chairman of the People's Committee of the province where the case is located at the request of the person requesting the appraisal. The Appraisal Board is decided to be established by the Minister of Construction when requested by the Prime Minister or upon the proposal of the People's Committee of the province when that agency cannot carry out the reappraisal.

The Appraisal Board consists of at least three members including the Chairman and other members, who are reputable and highly qualified professionals in fields related to the case requiring appraisal.

3. The Appraisal Board may base its conclusions on previous appraisal conclusions or designate a professional organization to conduct additional appraisals as a basis for the reappraisal conclusion.

Chapter IV

COSTS OF JUDICIAL APPRAISAL IN CONSTRUCTION

Article 16. Establishment of Costs for Implementing Construction Judicial Appraisal

1. Based on the subject and content of the appraisal request, taking into account the nature of the case and the volume of appraisal work required, the professional organization establishes an estimate of appraisal costs and agrees with the person requesting the appraisal. Costs for implementing the appraisal include some or all of the following expenses:

a) Drafting outline costs;

b) Survey costs;

c) Testing costs;

d) Machine and equipment costs for appraisal work;

đ) File and document review costs;

e) Calculation and re-examination costs;

f) Report and conclusion preparation costs;

g) Transportation costs, management costs, and other necessary costs.

2. In cases where a second reappraisal is required, in addition to the costs established for the professional organization under Clause 1 of this Article, there are also costs for the activities of the Appraisal Board as stipulated by the Board.

Article 17. Sources of funds for forensic appraisal

1. Criminal cases

The funds for forensic appraisal shall be paid by the party requesting the appraisal from the annual budget of the specialized organization or from other lawful sources agreed upon by the parties involved in the case in accordance with the law.

2. Civil cases, administrative cases

The funds for forensic appraisal shall be paid by the party requesting the appraisal from the source provided by the parties to the court as stipulated in the Civil Procedure Code or from other lawful sources agreed upon by the parties involved in the case in accordance with the law.

3. In urgent or special appraisals at the request of authorized agencies, the funds for forensic appraisal may be taken from the state budget as decided by the authorized agency in accordance with the regulations.

Article 18. Advance payment, settlement, and final accounting of forensic appraisal costs

1. The party requesting the appraisal is responsible for reviewing, agreeing, and approving the costs for the forensic appraisal and arranging advance payments to the specialized organization before conducting the appraisal. The amount and schedule of advance payments are determined by the party requesting the appraisal based on the proposal of the specialized organization and must ensure sufficient funding for the requested work.

2. After receiving the conclusion of the forensic appraisal, the party requesting the appraisal is responsible for organizing the settlement and final accounting of the forensic appraisal costs for the specialized organization and related parties in accordance with the regulations.

Chapter V

IMPLEMENTATION

Article 19. Transitional Provisions

Organizations participating in forensic construction appraisals from July 1, 2010, must belong to the list of specialized organizations published according to this Circular.

Article 20. Implementation Provisions

1. Ministries, agencies equivalent to ministries, government agencies; provincial People's Committees, municipal People's Committees under the central government; organizations and individuals participating in construction activities and related organizations and individuals are responsible for implementing the provisions of this Circular. During implementation, if difficulties arise, they are advised to submit written requests to the Ministry of Construction for guidance and resolution.

2. This Circular takes effect from December 1, 2009./.