EXPENSES FOR CONSIDERATION AND ASSESSMENT AT ONLY IN THE SETTLEMENT OF CIVIL CALLS – INTERESTING AND PROPOSAL, RECOMMENDATION

During the settlement of civil cases, if the involved parties request or deem it necessary, the Judges shall conduct the on-the-spot consideration and appraisal. The on-site examination and appraisal is mainly carried out for cases in the first instance stage, that is, measuring the current state of the disputed land, examining objects, architecture, trees and crops on the land, consider assets, appraise supplies, goods, etc. to solve the case correctly. On-site review and appraisal will incur costs.

According to the provisions of Clause 2, Article 155 of the Civil Procedure Code (CPC) 2015, “The cost of on-site consideration and appraisal is the necessary and reasonable amount to be paid for the on-site examination and appraisal of the premises. according to the provisions of the law”.

Previously, the CPC 2004 did not stipulate on-site review and appraisal costs. The Civil Code of 2015 has added 04 new laws on this issue, including[1]: (1) Advance for on-site consideration and appraisal costs, on-site review and appraisal expenses (Article 155 ); (2) obligation to pay an advance for on-site consideration and appraisal expenses (Article 156); (3) the obligation to bear the on-site review and appraisal costs (Article 157) and (4) handle the on-site review and appraisal expense advance (Article 158).

Lack of regulations should apply inconsistently

As mentioned above, the cost of on-site consideration and appraisal has been additionally specified in the 2015 Civil Code. However, for specific provisions on this content, the National Assembly assigns the National Assembly Standing Committee to prescribe regulations. (Article 169)[2].

Resolution No. 103/2015/QH13 dated November 25, 2017 stipulating the 2015 Civil Code takes effect from July 1, 2016. According to the provisions of Clause 6, Article 1 of this Resolution: “When settling civil, marriage and family, business, commercial and labor cases, the Court continues to apply the provisions of the documents. current legal regulations on court fees, court fees and other procedural expenses until new regulations are issued by competent state agencies .

Up to now, there has not been any legal document specifically stipulating the cost of on-site review and appraisal. Therefore, the understanding and application of the provisions in the courts are not uniform. There are even cases that make the involved parties feel a lack of transparency leading to complaints because in some courts, this money is directly collected and spent by the judge assigned to handle the case.

Judges have different ways of calculating on-site consideration and appraisal expenses. The method of collection of on-site consideration and appraisal expense advances is the same, with the Judge making a record of collection of on-site consideration and appraisal expense advances and after conducting the review and appraisal. After deciding on the spot, the judge shall make the payment for the on-spot consideration and appraisal expenses with the advance payer and make a record of this payment; The judge may request the involved party to write a payment slip to keep in the case file.

Spending money for participants in the on-site review and appraisal of each Judge and each case is not the same. Due to the different nature of the object considered for on-site appraisal, the cost of on-site review and appraisal is also very different. Some Judges spend 100,000 VND/person/session, and some Judges spend 200,000 VND/person/session. There are Judges who spend money on both the Judge and the Court Clerk, but there are also Judges who don’t.

In the actual settlement of civil cases, when conducting on-site review and appraisal, there are different costs involved. Normally, the cost of on-site review and appraisal includes the following items:

+ Cost of real estate measurement: Calculated according to the price of the agency that has the function of measuring and drawing houses and land (there are contracts and receipts for collection of money from these agencies, so the settlement is not problematic);

+ Renting technical means, measuring equipment, appraising materials and goods, etc. This rental is usually according to receipts, payment invoices;

+ Costs for means of transportation: If the place of consideration and appraisal is far away, the cost is calculated according to the shipping price with receipt; for nearby locations, where court officials and surveyors often self-sufficient means of transportation, the Judge shall pay this amount for those who are self-sufficient, while the Judge does not;

+ Expenses for representatives of the People’s Committees of communes or wards or the police of communes or wards or agencies and organizations where there are objects that need to be examined and appraised on the spot to participate in the on-site consideration and appraisal. Usually the on-site review and appraisal is done in a day or a session, with the Court spending 100,000 VND/person, some Court spending 200,000 VND/person, and the Judge spending 300,000 VND/person because they think that The Court needs the support and coordination of the People’s Committee and the Public Security Agency…

In addition, there are cases where it is necessary to review and appraise remote locations, prolonging the time the Court must arrange lunch for all participants in on-site review and appraisal, and this cost is usually not included in the cost. application, voucher.

Through the practice of adjudication, it can be seen that the collection and payment of expenses for on-the-spot consideration and appraisal are entirely due to the subjective will of the judge directly dealing with the civil case. Therefore, in many judgments and decisions of the Court have omitted, not deciding who is obliged to bear the costs of on-site review and appraisal. That clearly does not guarantee the legitimate rights and interests of the involved parties.

While waiting for specific regulations of competent state agencies, it is necessary to study and have specific instructions to ensure the collection and cost of on-site consideration and appraisal in the settlement of cases. civilian consensus.

Proposing specific regulations

As mentioned above, the on-site review and appraisal is mainly carried out for first-instance cases, mainly measuring and drawing the current state of disputed housing, examining architecture, trees and crops on the land. , consider the disputed property … to have a basis to settle the civil case accurately and lawfully, ensuring the legitimate rights and interests of the involved parties.

However, there are two different types of opinions regarding the costs of the subjects participating in the on-site review and appraisal in the current practice of adjudication:

The first type of opinion holds that money must be paid for all participants, witnessing the on-site review and appraisal, regardless of whether they are salaried inside or outside the state budget. Because, participating in, witnessing the on-site review and appraisal is not a regular job for these people. If they do not spend money on them, it is not satisfactory, because they participate in, witness the on-site review and appraisal, but still have to complete the main tasks at the place of work or work.

The second type of opinion is that, only spending money for those participating in the on-site review and appraisal are those who do not receive salaries from the state budget. People who receive salaries from the state budget do not need to spend because their participation in the on-the-spot review and appraisal is also the performance of their assigned work during their working time.

We are inclined to the first point of view, that is the cost of on-site inspection and appraisal including costs for those directly reviewing and appraising and participants witnessing the review and appraisal. there.

While waiting for competent state agencies to promulgate legal documents specifying the determination of costs for on-site consideration and appraisal; Regarding the procedures for collecting and spending money for on-site consideration and appraisal, the Court will apply similar regulations on property valuation expenses as prescribed in Articles 35 and 41 of Ordinance No. 02/ in the immediate future. 2012/UBTVQH13 and articles 9,10, 11, 12 of Decree 81/2014/ND-CP to determine the cost of on-site review and appraisal.

Through research and practice of resolving civil cases with on-site review and appraisal, we propose to determine the cost of on-site review and appraisal including one or several of the following costs:

– Expenses for persons performing the on-site review and appraisal, witnesses to the on-site examination and appraisal;

– The cost of collecting and analyzing information about the object to be considered and appraised includes one or several of the following costs: (1) Cost of general determination of the property to be considered and appraised; (2) the cost of planning the review, on-site appraisal; (3) the cost of actual survey, collection of information related to the property to be considered and appraised on the spot; (4) the cost of analyzing information related to the property to be considered and appraised. In there:

+ The cost of collecting and analyzing information about objects to be considered and appraised is determined according to the actual arising of each specific case of consideration and appraisal and professional content serving the collection process. , analyze information about the object of consideration and appraisal on the basis of contracts and invoices and documents as prescribed by law.

+ Cost of using the service: This type of fee is applicable in cases where it is necessary to use professional conclusions made by experts or other organizations as a reference basis for on-site review and appraisal activities. Fees for using other outsourced services to directly serve the consideration and appraisal are determined on the basis of actual arising of each specific case, on the basis of contracts and invoices and documents according to the provisions of law. provisions of law.

+ Other costs: These are costs related to and directly serving the on-site review and appraisal in accordance with the nature and content of each case in specific fields determined on the basis of according to the actual arising of each specific case on the basis of contracts and invoices and documents as prescribed by law.

However, the on-site review and appraisal are directly organized by the Court, to ensure transparency and procedures for advance payment, payment and settlement with the involved parties, we propose to have stipulates that revenue and expenditure must be documented in order to be handed over to involved parties and kept in case files.

[1] See Articles 155, 156, 157 and 158 of the 2015 Civil Code.

[2] Article 169 of the 2015 Civil Code stipulates:

Pursuant to the provisions of this Code, the Standing Committee of the National Assembly shall specify expenses for offshore judicial entrustment, expenses for on-site examination and appraisal, and expenses for assessment and valuation of assets. ; expenses for witnesses and interpreters; other procedural expenses prescribed by other laws and the exemption and reduction of procedural costs during the settlement of the case.”

Source: According to tapchitoaan.vn

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Post Author: Nguyen Thi Tam