Zhongcheng Qingtai. Real estate perspective: construction field identification start-up conditions and identification scope analysis.
Published:
2022-06-03
1. issues raised Identification is an activity in which the appraiser uses specialized knowledge and skills, supplemented by necessary technical means, to detect, analyze and identify the specialized issues in dispute in the case. In the case disputes in the field of construction, due to the strong professionalism and technicality of the determination of engineering quantity, the calculation of project price, and the acceptance of project quality, when both parties have disputes over the facts of a certain case, they are often accustomed to applying to the people's court. Entrusted appraisal, through the third-party appraisal agency to issue an appraisal opinion to judge the disputed facts. Whether it is necessary to start the appraisal, how to determine the scope of the appraisal and how the court adopts the appraisal opinion is very important to the outcome of the case, and this paper intends to analyze the above problems through five cases. 2. Related Cases and Referee Views The (I) does not need to initiate an appraisal if it is possible to bring the facts to be proved to the standard of proof of "high probability" through other evidentiary materials. Case 1: Dispute over Construction Contract between Ningxia Huaji Biology Co., Ltd. and Zhongwei Roche Decorative Materials Firm and Ningxia Chengzhi Wansheng Biological Engineering Co., Ltd. (Wuzhong Intermediate People's Court of Ningxia Hui Autonomous Region [2020] Ning 03 Min Zhong No. 1007) The court held that the "Wansheng Office Building Reconstruction Project Construction Agreement" and the "Wu Zhong Wansheng Office Building Reconstruction Project List and Quotation" were signed by both parties after the completion of the project on September 23, 2019. As mentioned above, Zhang Wei, on behalf of Chengzhi Wansheng Company, approved the contract price of 278000 yuan, and Huaji Company paid 150000 yuan to the appellee Roche Firm after the agreement was signed, it is fully proved that the project funds involved in the case have been agreed by both parties through negotiation, so there is no need to start the appraisal to confirm the quantities of the appellee's construction, and it is not improper that the appraisal is not allowed in the first instance. As for the application for project cost appraisal submitted again by the appellant in court of the second instance, the court also did not approve the application for appraisal because the agreement and quotation list signed and approved by both parties have reached a fairly high standard of proof for the facts, and the appellant did not submit valid evidence in the second instance to reduce the probative force of the agreement, so the court also did not approve the application for appraisal. (II) the parties agree to settle the project price in accordance with the fixed total price, the people's court shall not support the request of a party to identify the cost of the construction project. Case 2: Qingdao Zhongxing-Shenyang Commercial Building (Group) Co., Ltd. and Shenyang Huiding Runda Technology Co., Ltd. Dispute over Construction Contract (Shenyang Intermediate People's Court of Liaoning Province [2022] Liao 01 Min Zhong No. 2471) The court held that, according to the 12.1 agreement of the contract, the contract was determined by means of a fixed total price, and the total price was not adjusted, except for the increase or decrease of the "project phase item" in the "partial project quantity list", and no adjustment was made to the transaction price under any other circumstances. As for the appellant's claim that there are multiple equipment available for use and the application for appraisal to finally determine the project price, the court believes that the available use is not directly related to the increase or decrease of the project and does not belong to the project involving "increasing or decreasing the project items other than the project items in the partial bill of quantities". it is not improper for the court of first instance to make adjustments according to the fixed total price agreed in the contract, and the court will not accept the appellant's claim. If the parties to the (III) dispute some of the facts of the case, only the disputed facts shall be appraised. Case 3: Ren Fenghua, Baye Construction Group Co., Ltd. and Guangxi Jinchuan Nonferrous Metals Co., Ltd. and Qinghai Branch of Baye Construction Group Installation and Construction Company (Guangxi Zhuang Autonomous Region Fangchenggang City Intermediate People's Court [2021] Gui 06 Min Zhong No. 533) The court held that the amount and cost of the completed project of Ren Fenghua belong to the basic legal facts of the case and should be found out. In this case, because Ren Fenghua and Baye Company had disputes over the quantities of some of the sub-projects involved and failed to reach an agreement, the quantities and cost of the disputed parts of the project should be determined through judicial appraisal. Eight Metallurgical Company appealed that the project involved in the case did not need to determine the project price through cost appraisal, and the court did not support it. (IV) the party with the burden of proof did not apply for appraisal in the first instance litigation, the court applied for appraisal in the second instance litigation. If the court deems it necessary, it shall send it back for retrial and initiate the appraisal. Case 4: Disputes over Construction Contracts of Construction Projects such as China Communications First Public Bureau Group Co., Ltd. and Fujian Boye Construction Group Co., Ltd. (Fujian Longyan Intermediate People's Court [2019] Min 08 Min Zhong No. 1249) The court held that the court should allow the parties to determine the project price through appraisal in the course of litigation, so as to safeguard the legitimate rights and interests of the actual construction. Huang Guosheng submitted appraisal applications after the expiration of the time limit for proof in the first instance and during the second instance of the court. According to Article 14 of the (II) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, "the party with the burden of proof in the first instance litigation did not apply for appraisal, but did not pay the appraisal fee or refused to provide relevant materials, and applied for appraisal in the second instance litigation, if the people's court deems it really necessary, it shall deal with it in accordance with the provisions of paragraph 1, paragraph 3, of Article 170 of the Civil procedure Law." The case shall be sent back to the court of first instance for retrial and the appraisal procedure shall be initiated. On the basis of the facts of the case, the (V) judge should use the judicial power to review the appraisal opinions, so as to avoid the situation of "trial by reference" Case 5: Civil Ruling of Second Instance on Disputes over Construction Contracts of China Chemical Engineering Ninth Construction Co., Ltd. and Xinjiang Meihuite Petrochemical Products Co., Ltd. (Xinjiang Uygur Autonomous Region Higher People's Court [2021] Xinmin Final No. 340) The court held that the court of first instance did not examine and determine the inferential opinions in the appraisal opinion. In this case, 17 items of inferential opinions with an amount of about 19.7 million yuan are listed separately in the appraisal opinion. The court of first instance only reviewed and confirmed one item and partially accepted the appraisal opinion. For the remaining 16 items, Meihui Company did not submit valid evidence to prove that its objection was established, and all the appraisal opinions were accepted without review and confirmation. The essence of the appraisal opinion is evidence. In addition to reviewing its legality, the people's court should also make full use of the parties' objections and the response of the appraisal agency to review the scientificity, objectivity and rationality of the appraisal opinion, combined with other evidence in the case and the parties' The plea and defense opinions make an accurate determination of relevant specialized issues close to objective facts, so as to avoid using appraisal instead of trial. To sum up, the court of first instance found that the basic facts of the case were unclear. 3. Summary 1, through the above cases, the referee's point of view can be seen, not all controversial matters in the field of construction need to be identified. In view of the long time and high cost of the appraisal of construction projects, unless the facts of the case cannot be ascertained without appraisal and the facts have an impact on the outcome of the case, the appraisal should be used with caution. Article 28 of the "Judicial Interpretation of Construction Projects" "If the parties agree to settle the project price at a fixed price, and one party requests to appraise the construction project cost, the people's court will not support it" and Article 31 "If the parties have disputes over some of the facts of the case, only the disputed facts are appraised, but the scope of the disputed facts cannot be determined, or the parties request to appraise all the facts" is a manifestation of prudent initiation of appraisal. At the same time, it should be noted that "only the identification of disputed facts" is an advocacy provision, which aims to shorten the litigation time and reduce the litigation cost. The proviso of this article reflects the full respect for the opinions of the parties. 2. The "fixed price" stipulated in Article 28 of the Judicial Interpretation of Construction Projects refers to the fixed total price contract signed by both parties and the design changes other than those agreed upon by both parties have not occurred in the performance of the contract. Otherwise, in the case that the existing evidence cannot determine the cost of the change part, the appraisal still needs to be started. In addition, if the parties sign a fixed unit price contract, it is not affected by the above clause, because the fixed unit price only determines the price per unit area, it is necessary to multiply the unit price by the amount of work after determining the amount of work. If the two parties have different opinions on the quantity of work and cannot be determined by the existing evidence, identification is still required. 3. If the party with the burden of proof fails to apply for appraisal in the first instance litigation, and if the court applies for appraisal in the second instance litigation, the court considers it necessary to initiate the appraisal. The "really necessary" here should include two levels: one is that it is necessary to start the appraisal to find out the facts of the case; the other is that it is necessary to start the appraisal for a fair and just trial of the case. 4. Although the appraisal opinion plays an important role in identifying specialized issues in dispute cases, it is only one of the forms of legal evidence. Whether the judge finally accepts the appraisal opinion and uses it as the basis for determining the facts of the case still needs to be fully cross-examined by the parties and comprehensively analyzed and judged in combination with the basic facts of the case and other evidence, so as to effectively avoid the situation of "trial by reference.
1. issues raised
Identification is an activity in which the appraiser uses specialized knowledge and skills, supplemented by necessary technical means, to detect, analyze and identify the specialized issues in dispute in the case.
In the case disputes in the field of construction, due to the strong professionalism and technicality of the determination of engineering quantity, the calculation of project price, and the acceptance of project quality, when both parties have disputes over the facts of a certain case, they are often accustomed to applying to the people's court. Entrusted appraisal, through the third-party appraisal agency to issue an appraisal opinion to judge the disputed facts. Whether it is necessary to start the appraisal, how to determine the scope of the appraisal and how the court adopts the appraisal opinion is very important to the outcome of the case, and this paper intends to analyze the above problems through five cases.
2. Related Cases and Referee Views
The (I) does not need to initiate an appraisal if it is possible to bring the facts to be proved to the standard of proof of "high probability" through other evidentiary materials.
Case 1: Dispute over Construction Contract between Ningxia Huaji Biology Co., Ltd. and Zhongwei Roche Decorative Materials Firm and Ningxia Chengzhi Wansheng Biological Engineering Co., Ltd. (Wuzhong Intermediate People's Court of Ningxia Hui Autonomous Region [2020] Ning 03 Min Zhong No. 1007)
The Court held that:"Wansheng Office Building Reconstruction Project Construction Agreement" and "Wu Zhong Wansheng Office Building Reconstruction Project List and Quotation" were signed by both parties after the completion of the project on September 23, 2019. As mentioned above, Zhang Wei, on behalf of Chengzhi Wansheng Company, approved the contract price of 278000 yuan, and Huaji Company paid 150000 yuan to the appellee Roche Firm immediately after the agreement was signed, which fully proved that the project funds involved in the case had been agreed by both parties, therefore, there is no need to start the appraisal to confirm the quantities of the appellee's construction, and it is not improper not to allow the appraisal in the first instance. As for the application for project cost appraisal submitted again by the appellant in court of the second instance, the court also did not approve the application for appraisal because the agreement and quotation list signed and approved by both parties have reached a fairly high standard of proof for the facts, and the appellant did not submit valid evidence in the second instance to reduce the probative force of the agreement, so the court also did not approve the application for appraisal.
(II) the parties agree to settle the project price in accordance with the fixed total price, the people's court shall not support the request of a party to identify the cost of the construction project.
Case 2: Qingdao Zhongxing-Shenyang Commercial Building (Group) Co., Ltd. and Shenyang Huiding Runda Technology Co., Ltd. Dispute over Construction Contract (Shenyang Intermediate People's Court of Liaoning Province [2022] Liao 01 Min Zhong No. 2471)
The Court held that:According to the 12.1 agreement of the contract, the contract is determined by fixed total price, the total price is not adjusted, except for the increase or decrease of the "project phase item" in the "partial project quantity list", the transaction price is not adjusted in any other circumstances. As for the appellant's claim that there are multiple equipment available for use and the application for appraisal to finally determine the project price, the court believes that the available use is not directly related to the increase or decrease of the project and does not belong to the project involving "increasing or decreasing the project items other than the project items in the partial bill of quantities". it is not improper for the court of first instance to make adjustments according to the fixed total price agreed in the contract, and the court will not accept the appellant's claim.
If the parties to the (III) dispute some of the facts of the case, only the disputed facts shall be appraised.
Case 3: Ren Fenghua, Baye Construction Group Co., Ltd. and Guangxi Jinchuan Nonferrous Metals Co., Ltd. and Qinghai Branch of Baye Construction Group Installation and Construction Company (Guangxi Zhuang Autonomous Region Fangchenggang City Intermediate People's Court [2021] Gui 06 Min Zhong No. 533)
The Court held that:The amount and cost of the completed project of Ren Fenghua belong to the basic legal facts of this case and should be found out. In this case, because Ren Fenghua and Baye Company had disputes over the quantities of some of the sub-projects involved and failed to reach an agreement, the quantities and cost of the disputed parts of the project should be determined through judicial appraisal. Eight Metallurgical Company appealed that the project involved in the case did not need to determine the project price through cost appraisal, and the court did not support it.
(IV) the party with the burden of proof did not apply for appraisal in the first instance litigation, the court applied for appraisal in the second instance litigation. If the court deems it necessary, it shall send it back for retrial and initiate the appraisal.
Case 4: Disputes over Construction Contracts of Construction Projects such as China Communications First Public Bureau Group Co., Ltd. and Fujian Boye Construction Group Co., Ltd. (Fujian Longyan Intermediate People's Court [2019] Min 08 Min Zhong No. 1249)
The Court held that:The court shall allow the parties to determine the price of the project through appraisal in the course of litigation in order to safeguard the legitimate rights and interests of the actual construction. Huang Guosheng submitted appraisal applications after the expiration of the time limit for proof in the first instance and during the second instance of the court. According to Article 14 of the (II) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, "the party with the burden of proof in the first instance litigation did not apply for appraisal, but did not pay the appraisal fee or refused to provide relevant materials, and applied for appraisal in the second instance litigation, if the people's court deems it really necessary, it shall deal with it in accordance with the provisions of paragraph 1, paragraph 3, of Article 170 of the Civil procedure Law." The case shall be sent back to the court of first instance for retrial and the appraisal procedure shall be initiated.
On the basis of the facts of the case, the (V) judge should use the judicial power to review the appraisal opinions, so as to avoid the situation of "trial by reference"
Case 5: Civil Ruling of Second Instance on Disputes over Construction Contracts of China Chemical Engineering Ninth Construction Co., Ltd. and Xinjiang Meihuite Petrochemical Products Co., Ltd. (Xinjiang Uygur Autonomous Region Higher People's Court [2021] Xinmin Final No. 340)
The Court held that:The court of first instance did not examine and determine the inferences in the appraisal opinion. In this case, 17 items of inferential opinions with an amount of about 19.7 million yuan are listed separately in the appraisal opinion. The court of first instance only reviewed and confirmed one item and partially accepted the appraisal opinion. For the remaining 16 items, Meihui Company did not submit valid evidence to prove that its objection was established, and all the appraisal opinions were accepted without review and confirmation. The essence of the appraisal opinion is evidence. In addition to reviewing its legality, the people's court should also make full use of the parties' objections and the response of the appraisal agency to review the scientificity, objectivity and rationality of the appraisal opinion, combined with other evidence in the case and the parties' The plea and defense opinions make an accurate determination of relevant specialized issues close to objective facts, so as to avoid using appraisal instead of trial. To sum up, the court of first instance found that the basic facts of the case were unclear.
3. Summary
1, through the above cases, the referee's point of view can be seen, not all controversial matters in the field of construction need to be identified. In view of the long time and high cost of the appraisal of construction projects, unless the facts of the case cannot be ascertained without appraisal and the facts have an impact on the outcome of the case, the appraisal should be used with caution. Article 28 of the "Judicial Interpretation of Construction Projects" "If the parties agree to settle the project price at a fixed price, and one party requests to appraise the construction project cost, the people's court will not support it" and Article 31 "If the parties have disputes over some of the facts of the case, only the disputed facts are appraised, but the scope of the disputed facts cannot be determined, or the parties request to appraise all the facts" is a manifestation of prudent initiation of appraisal. At the same time, it should be noted that "only the identification of disputed facts" is an advocacy provision, which aims to shorten the litigation time and reduce the litigation cost. The proviso of this article reflects the full respect for the opinions of the parties.
2. The "fixed price" stipulated in Article 28 of the Judicial Interpretation of Construction Projects refers to the fixed total price contract signed by both parties and the design changes other than those agreed upon by both parties have not occurred in the performance of the contract. Otherwise, in the case that the existing evidence cannot determine the cost of the change part, the appraisal still needs to be started. In addition, if the parties sign a fixed unit price contract, it is not affected by the above clause, because the fixed unit price only determines the price per unit area, it is necessary to multiply the unit price by the amount of work after determining the amount of work. If the two parties have different opinions on the quantity of work and cannot be determined by the existing evidence, identification is still required.
3. If the party with the burden of proof fails to apply for appraisal in the first instance litigation, and if the court applies for appraisal in the second instance litigation, the court considers it necessary to initiate the appraisal. The "really necessary" here should include two levels: one is that it is necessary to start the appraisal to find out the facts of the case; the other is that it is necessary to start the appraisal for a fair and just trial of the case.
4. Although the appraisal opinion plays an important role in identifying specialized issues in dispute cases, it is only one of the forms of legal evidence. Whether the judge finally accepts the appraisal opinion and uses it as the basis for determining the facts of the case still needs to be fully cross-examined by the parties and comprehensively analyzed and judged in combination with the basic facts of the case and other evidence, so as to effectively avoid the situation of "trial by reference.
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