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1. Is it allowed for the parties to file an appraisal application at the retrial review stage?
Article 397 of the Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law of People’s Republic of China (PRC) (revised in 2022) stipulates that during the review of the retrial application, if the retrial applicant applies to the people’s court for entrusted appraisal and inspection, the people’s court will not allow it. Therefore, if the parties file an application for appraisal during the retrial review, the court shall not approve it for the following specific reasons:
1. It is the right of the parties to apply for appraisal and inquest, and to apply for re-appraisal and inquest. The purpose is to prove the facts that they cannot prove through appraisal and inquest. If the applicant for retrial gave up this right in the original trial, he should bear the adverse consequences of his inability to prove it. If he applies for retrial, he should not be allowed to make a request for appraisal and inspection.
Second, the function of the retrial review stage is to examine whether the retrial cause is established, and the retrial applicant shall bear the responsibility of proving that the retrial cause is established. If the parties want to overturn the original judgment by applying for appraisal, inspection or re-appraisal and inspection, they should entrust themselves or apply for re-appraisal and inspection from the person who made the original appraisal opinion and inspection record, and the people’s court will judge whether it meets the statutory retrial cause. In the retrial review procedure, the people’s court should not entrust an appraisal or an inquest to prove the existence of retrial reasons for the effective judgment or ruling, otherwise it will not be conducive to the stability of the civil legal relationship that has been determined for the effective judgment or ruling.
Three, it should be noted that in the trial practice, the retrial applicant applies for retrial on the grounds of new evidence, but does not submit new evidence, but applies to the people’s court for entrusted appraisal and inspection, which will not be supported. However, if the parties apply for appraisal and inspection according to law in the original trial, the court of the original trial should allow it but not allow it, and the identification of the basic facts of the case may be affected without appraisal and inspection, which means that the basic facts identified in the original judgment or ruling are lack of evidence, and can be reviewed and handled according to the second paragraph of Article 207 of the Civil Procedure Law of People’s Republic of China (PRC).
Source: Beijing High Court
2. The dissenter raised an objection to the evaluation method of the evaluation report and asked for re-evaluation. The court respected the evaluation method of the evaluation agency and did not review the accuracy of the evaluation method.
The gist of the judgment: 1. The dissenter raised an execution objection to the establishment price of the evaluation report, thus demanding a re-evaluation. It is usually difficult for the court to overturn the dissenter’s request, in other words, the court conducted a formal review of the evaluation procedure for the evaluation report; 2. Whether the objector can object to the reasons of the evaluation report is the fundamental reason. At present, there are no detailed rules for implementation in the law, and most of the regulations currently promulgated by the court are aimed at the evaluation procedures. 3. In terms of reasons for re-evaluation, it is only possible to re-evaluate the evaluation institutions and appraisers if they do not have the corresponding evaluation qualifications or the evaluation procedures are seriously illegal.
Viewpoint source: Jiangsu Higher People’s Court (2017) No.115 Su Zhifu-Chen Jianzhong and Yang Jianhua, Inner Mongolia Zhongwang Technology Co., Ltd. and other private lending disputes.
3. When the parties take the initiative to apply for identification, does the court need to conduct substantive examination to decide whether to start the identification?
A: Article 30 of the Supreme People’s Court’s Several Provisions on Evidence in Civil Litigation stipulates: "If the people’s court thinks that the facts to be proved need to be proved by expert opinions in the process of hearing a case, it shall explain them to the parties and specify the time limit for applying for expert evaluation. In line with the "the Supreme People’s Court on the application of
<中华人民共和国民事诉讼法>Interpretation of the first paragraph of article ninety-sixth, the people’s court shall entrust the appraisal according to its functions and powers. This article clarifies two basic ways to start the appraisal: first, the parties apply for appraisal; Second, the people’s court should also entrust an appraisal to the facts that need to be ascertained ex officio if they involve specialized issues.
The purpose of judicial expertise is that if there is something that the judge can’t know because he doesn’t have special knowledge during the trial of a case, experts must make up for it to achieve the purpose of correct judgment. In other words, the appraisal is based on the need of the judge to find out the facts. Therefore, the people’s court has the right to conduct a substantive review on whether the appraisal is started, that is, it is essentially the case that the judge lacks the ability to judge and identify the relevant specialized issues during the trial of the case, and then decides to entrust the relevant appraisal institutions to find out the relevant facts of the specialized issues through scientific methods and means. The application for the initiation of appraisal is only the basic prerequisite for the initiation of appraisal, and it certainly has legal consequences for the initiation of appraisal.
In order to prevent the arbitrariness of the start of the appraisal, the following aspects should be emphatically examined in the trial practice:
(1) whether the matters that the parties apply for appraisal are related to the facts to be ascertained in the case, that is, whether the facts to be proved that need to be proved through appraisal are the basic facts that must be ascertained in the trial of the case, or whether it will affect the legality of the trial procedure of the case.
(2) Whether it is necessary to determine the corresponding specialized problems through special technical means or special methods, and whether the relevant specialized problems can not be ascertained through general means of proof and cross-examination or existing evidence. In practice, some parties often start the appraisal to achieve artificial confusion, delay the proceedings or other improper purposes. In this regard, it is necessary to investigate the way to find out the facts to be proved. If it is found that the conventional way can be found out completely, the application for relevant judicial expertise of the parties should not be allowed.
(3) Whether there are more authoritative appraisal methods and corresponding qualified appraisal institutions for the specialized problems to be appraised, and whether there are clear and sufficient appraisal materials.
(4) Whether the opinions of both parties have been fully listened to before starting the appraisal.
Viewpoint source: Questions and Answers on Civil Trial Practice compiled by the First Court of the Supreme People’s Court Civil Trial (Law Press, 2021).
4. If the court thinks that appraisal is necessary, but the parties do not apply for it voluntarily, and still do not apply for appraisal after being explained by the court, can the court initiate appraisal ex officio?
A: Article 30 of the Supreme People’s Court’s Several Provisions on Evidence in Civil Litigation stipulates: "If the people’s court thinks that the facts to be proved need to be proved by expert opinions in the process of hearing a case, it shall explain them to the parties and specify the time limit for applying for expert evaluation. In line with the "the Supreme People’s Court on the application of
<中华人民共和国民事诉讼法>Interpretation of the first paragraph of article ninety-sixth, the people’s court shall entrust the appraisal according to its functions and powers. "the Supreme People’s Court" on the application.<中华人民共和国民事诉讼法>Article 96, paragraph 1, of the Interpretation stipulates: "The evidence that the people’s court considers necessary for hearing a case as stipulated in Article 64, paragraph 2, of the Civil Procedure Law includes: (1) those that may harm national interests and social public interests; (two) involving identity relations; (3) Involving litigation as stipulated in Article 55 of the Civil Procedure Law; (four) the parties have the possibility of malicious collusion to harm the legitimate rights and interests of others; (5) Involving procedural matters such as adding parties ex officio, suspending litigation, ending litigation, and withdrawing. " The above situation is the scope for the court to initiate the appraisal ex officio. Because appraisal is only one of the effective means to prove the specialized issues involved in the facts to be proved, it needs to be limited and constrained by the scope of proof of the parties. In addition to the above-mentioned five kinds of facts that the people’s court should ascertain ex officio, if it is necessary to pass the identification of other facts to be proved by the parties, it should be clarified and the parties who bear the burden of proof for the facts to be proved should apply for identification within a reasonable period of time. The matter that needs to be appraised is one of the facts to be proved. Because the specialized issues involved are beyond the scope of the judge’s professional knowledge, professional appraisal must be carried out to find out the truth. These professional facts, like the facts of other ordinary cases, belong to the category of burden of proof of the parties. The party who bears the burden of proof must prove the fact. If the parties fail to apply for identification in time, they will not take the initiative to apply for identification after being explained by the court. When the facts to be proved cannot be ascertained, they will bear the adverse consequences of failing to provide evidence.
Viewpoint source: Questions and Answers on Civil Trial Practice compiled by the First Court of the Supreme People’s Court Civil Trial (Law Press, 2021).
Case index:
(2020) The case of Liu Moumou, the retrial applicant of Supreme Law Firm Shen No.15291, v. Qufu Municipal People’s Government of Shandong Province (hereinafter referred to as Qufu Municipal Government) for administrative compensation.
(2018) Supreme Law Firm Claim No.352
The retrial applicant Lu Moumou v. the respondent Dongchangfu District People’s Government of Liaocheng City, Shandong Province (hereinafter referred to as Dongchangfu District Government) for administrative compensation.
5. If one party applies for appraisal and the other party does not agree, can the court start the appraisal procedure?
Referee’s gist: According to the first paragraph of Article 76 of the Civil Procedure Law of People’s Republic of China (PRC), if the parties apply for appraisal, the qualified appraiser shall be determined by both parties through consultation; If negotiation fails, it shall be designated by the people’s court. The term "negotiation fails" in this provision should be understood as including both the case that all parties agree to the appraisal, but only the appraisal department can’t reach an agreement, and the case that "one party applies for the appraisal, and the other party disagrees with the appraisal, resulting in negotiation failure". In the latter case, the court can still appoint a qualified appraisal institution for appraisal. According to the second paragraph of Article 76 of the Civil Procedure Law, if a party fails to apply for an appraisal, the people’s court shall entrust a qualified appraiser to conduct the appraisal on a special issue. According to the principle of legal interpretation of "lifting weights to lighten things", the people’s court can still start the appraisal procedure ex officio according to the needs of the trial of the case when the parties do not apply for appraisal, so it is only the case that one party applies for appraisal, and there is no reason why the appraisal procedure cannot be started.
Viewpoint Source: CaseNo.: (2020) Supreme Law Knowing People’s End No.624
—— Appellant Jiangxi Lan Xiang Heavy Industry Co., Ltd. and Appellee Jiangxi Xintong Machinery Manufacturing Co., Ltd., Jizhong Energy Fengfeng Group Handan Baofeng Mining Co., Ltd., Jizhong Energy Fengfeng Group Handan Baofeng Mining Co., Ltd.
6. If the Judicial Appraisal/Evaluation Report has expired, can the court continue to adopt it?
The gist of the judgment: 1. The "Real Estate Appraisal Report" made by the appraisal agency stated that it was "valid for one year", and the "valid period" was exceeded when the court made the judgment. However, in the case that the parties failed to submit evidence to prove that the appraisal report "expired" had a significant impact on the appraisal result of the real estate, and it was necessary to readjust the appraisal, the appraisal report can still be used as the basis for identification. 2. Both the contract and the law can’t exhaust all situations that occur during the performance of the contract. In order to fully perform the contract, all parties need to fulfill their obligations, which requires all parties to be tolerant or tolerant of the performance of the other party to a certain extent, that is, the defective behavior of the other party in the performance, whether it is actual or imagined by the parties themselves, should be tolerant and tolerant as long as it is not malicious. The purpose is to ensure the basic purpose and fundamental goal of the contract.
Viewpoint source: the Supreme People’s Court (2020) Supreme People’s Court No.462.
—— The appellant Lanzhou Anning District Bureau of Culture, Sports and Tourism (hereinafter referred to as Anning Bureau of Culture and Sports) disputed with the appellant Beijing Zhongrunde Trading Co., Ltd. (hereinafter referred to as Beijing Zhongrunde Company) and Lanzhou Zhongrunde Real Estate Co., Ltd. (hereinafter referred to as Lanzhou Zhongrunde Company) over the contract of real estate development and operation.
7. The probative force of the "expert opinions" made by the parties unilaterally entrusted by an appraisal institution cannot be equal to the expert opinions in the sense of the Civil Procedure Law.
Referee’s gist: After examination, the Supreme People’s Court believes that the reasons for the retrial application of Hengshan Coal Mine cannot be established. The reasons are as follows: The opinion of Kun Jin Si [2020] Wen Jian ZiNo. E2 "Seal Appraisal" made by Kunming Jinkang Judicial Appraisal Center was formed by Hengshan Coal Mine on December 20, 2019. However, according to the relevant provisions of People’s Republic of China (PRC) Civil Procedure Law, the appraisal opinion as evidence in civil litigation is limited to the people’s court’s application or ex officio entrustment. In this case, Hengshan Coal Mine did not apply for authentication of the authenticity of the seal stamped on the Guarantee Contract after being explained by the court in the first and second trials, but entrusted relevant institutions to authenticate the seal on the Guarantee Contract after the second trial, indicating that the seal stamped on the Guarantee Contract was not formed by the same seal as the sample seal. However, the probative force of the "expert opinion" formed by unilateral entrustment obviously cannot be equal to the expert opinion in the sense of civil procedure law, and the samples submitted for inspection have not been cross-examined by the other party. Accordingly, the "expert opinion" is not enough to overturn the basic facts identified in the original judgment.
Source of opinion: (2021) Supreme People’s Application No.4579.
—— The retrial applicant Hengshan Coal Mine in Lefeng Township, Xuanwei City and the respondent Yunnan Sun Soul Industrial Group Co., Ltd., yiliang county Bazhou Zhengyou Coal Mine, Xia Yaozhou, Xuanwei City Ruotang Town Qinjiadi Coal Mine and Zhenxiong County Gaoyan Coal Mine Co., Ltd.
8. If the insured fails to notify the insurance company before unilaterally evaluating the vehicle loss, the evaluation report is not binding on the insurance company.
Referee’s gist: The insured did not provide evidence to prove that the notice to the insurance company had been delivered. Although the insured provided evidence such as notification letter and logistics information, the final status of the express mail was displayed as "Shangmenjian", and there was no receipt record. The insurance company also denied receiving the above materials. The insurance company did not attend the appraisal procedure and the insured did not provide relevant materials for vehicle maintenance. Therefore, the appraisal conclusion made by the appraisal company entrusted by the insured unilaterally is not accepted.
Viewpoint source: No.3975, Su 0213, People’s Court of Liangxi District, Wuxi City, Jiangsu Province (2020)
9. Rules for examination of appraisal materials —— Qinghai Jingning Water Co., Ltd. v. Benxi Beitai Cast Pipe Co., Ltd.
Referee’s gist: one party unilaterally entrusts an appraisal institution to appraise only the problem products, which is not the appraisal made by the entrusting appraisal institution after the two parties jointly negotiate and sample, nor is it the judicial entrustment appraisal. Even if the other party approves the appraisal conclusion, it is not enough to prove that all the products involved in the case have quality problems. In the case that the two parties agreed in the contract that there are quality assurance and quality problem handling clauses, the quality inspection department issued a sampling certificate, and all the products involved in the case were installed and the project acceptance was qualified, the parties put forward the litigation request that all the products should be re-sampled and tested by an appraisal agency with corresponding qualifications. Because it did not conform to the provisions of the burden of proof sharing in litigation evidence and the contractual agreement between the two parties, the court refused to support it.
Viewpoint source: the Supreme People’s Court Commercial Trial Guidance Case (contract volume); The Supreme People’s Court (2009) Min Er Zhong Zi No.13
10. No appraisal application was made in the first instance. Can this application be made in the second instance?
Referee’s gist: the Supreme People’s Court believes that Wanjielong Company was unwilling to apply for judicial expertise in the first instance and did not bear the burden of proof. The port company refuses to accept the judgment of the first instance and appeals, so it bears the corresponding burden of proof. The court of second instance may re-determine the period of proof, and the port company shall apply for appraisal. And the application for appraisal belongs to the litigation rights of the parties. The law does not stipulate that the parties who did not apply for appraisal in the first instance cannot apply for appraisal in the second instance, and the port company also applied for appraisal within the time limit of proof stipulated in the second instance, which did not violate the provisions of Article 27 of the Supreme People’s Court’s Several Provisions on Evidence in Civil Proceedings. Therefore, it is not improper for the court of second instance to approve the port company’s application for appraisal.
Source of opinion: (2021) Supreme People’s Application No.6301.
-Xiamen Wanjielong Group Co., Ltd., the retrial applicant, and Xiamen Port Trading Co., Ltd., the respondent, and Xiamen Branch of China Ping An Property Insurance Co., Ltd., the third person in the original trial.
11. In a retrial or remanded case, do the parties have the right to apply for an expert witness to testify in court?
Answer: Article 81 of the Civil Procedure Law of People’s Republic of China (PRC) stipulates that "if the parties have objections to the expert opinion or the people’s court considers it necessary for the expert to appear in court, the expert shall testify in court. If the appraiser refuses to testify in court after being notified by the people’s court, the appraisal opinion shall not be used as the basis for ascertaining the facts; The party who paid the appraisal fee may request the return of the appraisal fee. " The above-mentioned legal provisions do not restrict the time for the appraisers to appear in court. Therefore, for cases that are retried or remanded for retrial, the parties have objections to the appraisal opinions of the original trial, and the people’s court shall allow the appraisers to appear in court to testify in accordance with the legal provisions.
12. If there is doubt about the civil capacity of the parties, and the parties themselves or their families do not cooperate with the appraisal of their civil capacity, how should the proceedings be advanced?
Answer: (1) It needs to be clear that the identification of the parties’ civil capacity and litigation capacity is related to the realization of the parties’ basic rights. When there is no sufficient evidence to prove it, the parties should first be presumed to have corresponding capacity.
(2) In the course of litigation, if it is found that the parties lack normal judgment on the facts of life and litigation behavior by combining the diagnostic materials and daily life judgments of the parties, which is obviously different from ordinary people, when the parties and their families do not cooperate with the court to conduct capacity appraisal, the parties can be directly presumed to have no capacity for litigation. At this point, it should be handled in accordance with Article 83 of the Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law of People’s Republic of China (PRC). Upon the notice of the people’s court, if the legal representative of the party refuses to cooperate with the lawsuit, it can be resolved according to the system of automatic withdrawal of the lawsuit or trial by default.
(3) In litigation, if the judge only has doubts about the litigant’s capacity for litigation according to the evidence materials and the trial work, but he can’t reach the degree of certainty, he should actively solve it through the appraisal procedure. The judge should do a good job of explaining the law and reasoning of both parties through active interpretation. If it is really impossible to advance the appraisal, it should be presumed that the parties have the corresponding litigation capacity on the basis of risk explanation. If the other party disagrees with the result of the court’s presumption, it may file an application for appraisal according to the provisions of Article 24 of the Civil Code. If the appraiser does not cooperate, it shall be determined that the appraiser has no corresponding litigation capacity according to the civil litigation proof obstruction rule, and this can be solved by referring to Article 2.
Source: Beijing High Court
13. Appraisal fees belong to the category of litigation fees and shall be borne by the losing party.
The gist of the judgment: Article 12 of the Measures for Payment of Litigation Fees stipulates that the expenses that should be borne by the parties in accordance with the law due to appraisal and evaluation in the course of litigation shall be decided by the people’s court to be paid directly by the parties to the relevant institutions or units according to the principle of who advocates and who bears, and the people’s court shall not collect and pay on behalf of them. This article stipulates that in the second chapter, "the scope of litigation fees", it is obviously considered that appraisal fees belong to the category of litigation fees. At the same time, Article 12 of the Measures for Payment of Litigation Fees solves the problem that when the appraisal and evaluation procedures are started, the parties applying for appraisal and evaluation directly hand over the relevant fees to the appraisal and evaluation institutions, and prohibit the people’s courts from collecting and paying them on their behalf, instead of solving the problem of the final sharing of appraisal and evaluation fees among the parties.
The Supreme People’s Court’s "Several Provisions on Evidence in Civil Litigation" stipulates in the first paragraph of Article 39 that "the expenses for the appraiser to appear in court shall be calculated according to the standard of the expenses for the witness to testify in court, and shall be borne by the losing party". However, according to Article 29 of the Measures for Payment of Litigation Costs, "the litigation costs shall be borne by the losing party, except those voluntarily borne by the winning party. In the case of partial victory or partial defeat, the people’s court shall decide the amount of litigation costs borne by the parties according to the specific circumstances of the case. If the parties to a joint lawsuit lose the case, the people’s court shall, according to their interests in the subject matter of the lawsuit, decide the amount of litigation expenses to be borne by each party. " Therefore, under normal circumstances, the appraisal fee should be directly dealt with in the legal fees. After explaining the burden of the case acceptance fee, according to the specific circumstances of the case, it is determined that the losing party will bear the appraisal fee or share it with both parties.
Viewpoint source: Questions and Answers on Civil Trial Practice compiled by the First Court of the Supreme People’s Court Civil Trial (Law Press, 2021).
CaseNo.: (2021) Supreme People’s Application No.2565
14. If the appraisal institution makes appraisal conclusions respectively according to the fixed price and the market price, the project price shall generally be determined by the market price.
Referee’s gist: If the appraisal institution makes appraisal conclusions according to the fixed price and the market price respectively, when determining the project price, the project price should generally be determined by the market price. This is because that project cost determine on the basis of quota mostly fail to reflect the construction, technology and management level of enterprises, and the quota standard often can’t keep up with the change of market price, while the market price information released by the construction administrative department is close to the market price, closer to the actual construction cost, and in line with the relevant provisions of the contract law, which is fairer to both parties.
Viewpoint source: Civil Trial Guidance and Reference compiled by the First Court of Civil Trial in the Supreme People’s Court (General Series 50)
15. How to determine the project price if the construction project cannot be appraised for lack of construction materials?
The focus of the dispute in this case is how to determine the cost when the project cannot be appraised. The Supreme Court believes that the cost of the disputed project can be determined by referring to the project payment agreement of similar projects in the surrounding areas. The main reasons are as follows:
First, when the project cost can’t be appraised, the cost of other similar projects can be referred to. When the project cost can’t be determined through appraisal, in order to solve the dispute once and for all, the court can order the parties to submit evidence of similar project cost and multiple certificates of similar project cost, and determine the project cost by referring to the correlation degree of these evidence and certificates.
Second, the similar project contracts actually performed in the adjacent areas have stronger proof of the project cost. The court should comprehensively analyze whether the cost proof documents are actually performed, the geographical distance, the similarity of the project, etc., and select the reference documents. Among them, the actual performance of the contract is stronger than the tender offer, the cost of the adjacent area is stronger than that of other areas, and the cost of the same project is stronger than that of other projects.
Source of opinion: [(2016) Supreme People’s Court No.522]
—— the Supreme People’s Court, a dispute over the construction contract of a power engineering company in North Gansu and a sunshine power technology company in Qingdao.
The materials are compiled by the Audit Office for exchange and study only.
Original title: "15 issues related to appraisal in civil litigation"
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