In the construction project contract dispute, if the employer wants to claim that the project has quality problems, it needs to submit enough evidence materials to be accepted by the arbitration institution. Whether there are quality defects in construction projects is often more convincing by professional institutions or people. Therefore, in the construction project contract quality disputes, often involves the project quality appraisal. There are generally three ways of engineering quality appraisal: first, the employer entrusts it unilaterally; Second, both parties have the same entrustment; Third, upon the application of the parties, the judicial institution entrusts judicial expertise. Among the appraisal reports issued by the quality appraisal institutions in these three ways, there are many doubts whether the appraisal report issued by the quality appraisal institution entrusted by the employer unilaterally can be used as the basis for determining the facts of the case. Therefore, this paper mainly focuses on the case that the appraisal report issued by the quality appraisal agency entrusted by the owner unilaterally can be accepted by the judgment agency, and summarizes and analyzes the relevant judgment opinions.

The author takes "unilateral entrustment and quality appraisal" as the key words and the construction project contract dispute as the cause of action. A total of 9 cases were retrieved from the Supreme Court, 37 cases from local high courts, and 22 cases from Guangdong Province and Guangxi Province except the high courts, among which 33 cases involved whether the court accepted the unilateral quality appraisal report, and the court accepted 5 cases. As can be seen from the above data, in the cases retrieved by the author, the proportion of quality appraisal reports entrusted by the court unilaterally is 15%, and the acceptance ratio is low. This paper mainly studies and analyzes the court's judgment on whether to accept the unilaterally entrusted quality appraisal report in the above cases, in order to provide relevant guidance for the employer to unilaterally entrust quality appraisal.

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Analysis of referee's point of view

1. The court unilaterally accepted the quality appraisal report entrusted by the Employer.

1. Both parties unilaterally entrust different quality inspection centers to issue appraisal reports, and their appraisal conclusions are the same, which are accepted by the court.

(20 18) in Liao Minzai No.398 case, the contractor first entrusted the engineering quality testing center to test the engineering quality, and the conclusion was that there were defects. Five days later, the employer unilaterally entrusted another engineering quality inspection center to issue a report on the serious appearance quality defects of the project. The Higher People's Court of Liaoning Province believes that the quality problems described in the quality appraisal report do exist in the project when both parties unilaterally entrust the quality inspection center to carry out the project quality appraisal and the appraisal conclusions are consistent.

This case has a certain particularity, that is, the two parties unilaterally entrusted the quality appraisal, and the conclusions of the appraisal report issued were the same, so the court accepted the conclusions of the appraisal report.

2. For the quality appraisal report entrusted by one party unilaterally, the other party has not raised any objection, and there is no evidence to the contrary to overturn the appraisal opinion, or the other party has raised objections to the appraisal report, but failed to apply for judicial appraisal, and failed to produce evidence to deny the authenticity of the appraisal report, and the court will accept it.

(20 15) the case number is Su Shen ershenminzi 0 1847. after the project was completed and delivered to the employer, the employer repeatedly notified the contractor to repair, but the contractor failed to repair as agreed in the contract. Therefore, the employer unilaterally entrusts a third-party organization to identify the project quality problems. The undertaker did not object to the appraisal opinion, and there was no evidence to the contrary to overturn the appraisal opinion. Therefore, the court accepted the appraisal conclusion.

(20 14) The case number is Wan Min Sizhong Zi 00 14 1. The developer found quality problems after using the project without completion acceptance. The appraisal conclusion issued by the institute entrusted by the developer unilaterally is: "The reliability of the project involved does not meet the requirements of the current national standards and norms, which affects its normal use." Therefore, the Higher People's Court of Anhui Province believes that rectification and reinforcement measures should be taken. Although the undertaker objected to the appraisal report, he did not request the court to entrust judicial appraisal according to law, nor did he provide evidence to deny the authenticity of the appraisal report. The court accepted the appraisal report issued by the appraisal agency unilaterally entrusted by the employer.

(2020) In the case of Shen 1 1 160, the Guangdong Higher People's Court held that the contractor refused to confirm the report issued by the appraisal agency entrusted by the employer unilaterally, and there was no evidence or reason to refute it, and clearly stated that it would not apply for re-appraisal of the project quality. Therefore, the report provided by the employer has fulfilled the initial burden of proof.

Based on the above cases, it can be seen that after one party submits the appraisal report entrusted by one party, if the other party has no evidence to refute the appraisal report, the court tends to adopt the appraisal report. Although the court did not elaborate on the legality and compliance of the appraisal report submitted in the above cases, if the appraisal report is flawed, the other party is likely to put forward and try to overturn the effectiveness of the appraisal report that is unfavorable to it.

3. The appraisal unit unilaterally entrusted by the employer is qualified, and the contractor has been informed to participate in the appraisal (but the contractor refuses to participate). The contractor has no evidence to deny the appraisal conclusion. From the previous communication between the two parties, we learned that there were quality problems, so we did not accept the request of the undertaker that the appraisal report could not be accepted and the appraisal should be entrusted separately.

(20 19) In the case of Guangdong 13 Minzhong No.2842, the Intermediate People's Court of Huizhou City, Guangdong Province held that: "Guangzhou Company, as an appraisal unit, was unilaterally entrusted by Jin Li Company, but it was qualified for appraisal, and only informed Midi Company to participate in the appraisal (Midi Company refused to participate). At present, Midi Company cannot provide evidence to deny the appraisal conclusion of Ye Jing Company, and from both sides,

In this case, the employer has informed the contractor to participate in the quality appraisal, but the contractor refused to participate. Huizhou Intermediate People's Court of Guangdong Province believes that whether the contractor actually participates in the appraisal does not affect the effectiveness of the quality appraisal report when the employer has fulfilled the notification to the contractor to participate in the quality appraisal. However, if the Employer fails to fulfill the obligation of notifying the Contractor to participate in the quality appraisal, and there are other problems in the appraisal report, the court may reject the quality appraisal report.

Second, the court does not accept the quality appraisal report entrusted by the employer unilaterally.

Judging from the above-mentioned judgment that the court accepted the unilaterally entrusted appraisal report, we may not be able to draw the conclusion that what conditions the unilaterally entrusted appraisal report should have is enough for the court to accept it. The following attempts to find out what conditions a unilaterally entrusted appraisal report should have if it can be accepted by the court by exploring the judgment viewpoint that the court does not accept the unilaterally entrusted appraisal report. However, among some reasons, some reasons may be the decisive factor for the court to reject the appraisal report, and some reasons may only be used as a factor to increase the degree of rejection. That is to say, in other cases, if the same situation occurs, the court can comprehensively consider other factors of the case before deciding whether to accept the letter. Considering that the situation of different cases may vary widely, the unilateral entrusted evaluation report does not have to meet the following conditions to be accepted.

1. The time between evaluation and project completion acceptance should not be too long.

When entrusting quality appraisal, we should pay attention to the timeliness of appraisal. In the case of (20 19) Jiminshen 3 14 1, the Higher People's Court of Jilin Province held that: "The project involved was completed on 20 13, and now Liu Leishuo conducts the quality appraisal on 20 19, which was entrusted by Liu Leishuo unilaterally.

According to the above cases, if the interval between completion and quality appraisal is too long, the acceptability of appraisal report will be reduced.

2. If there are quality problems in the non-foundation and main structure, the owner will entrust the quality appraisal after it is used without completion acceptance, and the appraisal report is unlikely to be accepted.

(20 17) Yu Minzhong No.54 case of Chongqing Higher People's Court held that "Hesheng Hengli Company entrusted a third party to enter the site for construction without authorization before entrusting No.574 appraisal report to prove that the work content of Building 1 1 completed by Wan Yu Construction Company had quality problems. According to Article 13 [1] of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes, the contractor is only responsible for the quality of the foundation and main structure within the reasonable service life of the project after the construction project is completed and accepted without the permission of the employer. The appraisal conclusion of the judicial appraisal report does not include the cost of quality improvement of the main structure or foundation engineering of Building 1 1. Therefore, under the above circumstances, Wan Wan Construction Company should not bear the cost of quality rectification of this part of the non-main structure or foundation project. " In the above case, the Chongqing Higher People's Court held that the employer entrusted a third party to enter the site for construction, which was an act of unauthorized use of the project. According to relevant regulations, after the employer uses the project without authorization, the contractor is only responsible for the quality of foundation and main structure within the reasonable service life of the project. Therefore, if the engineering quality problem is not the main structure or foundation engineering quality problem, the quality appraisal should be carried out as far as possible before use and before the third party enters the site for construction. In cases (20 16) Zhejiang No.4162 and (20 17) Guangdong No.01Minzhong No.21082, the court also supported the above viewpoint.

Combined with the above cases and the provisions of Article 14 of Judicial Interpretation of Construction Projects (I), it can be seen that the quality of non-foundation projects or main structure projects is not up to standard after the project has not been completed and accepted by the employer, and the entrusted quality appraisal report unilaterally provided by the employer may be difficult to be accepted by the court. In fact, in this case, even if you apply for judicial expertise, it is difficult to get the permission of the court.

3. The appraisal institution shall, as far as possible, choose an institution with professional qualifications and confirmed by both parties.

(2020) In the case of Gui 02 Minzhong No.2994, Liuzhou Intermediate People's Court of Guangxi held: "CreditEase Company claims that there are problems in the project quality and should provide sufficient evidence to prove it. The Engineering Quality Inspection Report provided by CreditEase Company is entrusted by it unilaterally, and there is no relevant inspection qualification certificate, and there is no participation of Shize Company, Steven Wu and Hua Zheng. In the case that World Ze Company, Steven Wu and Hua Zheng clearly stated that they would not recognize it, the authenticity, legality and relevance of the evidence could not be confirmed, and it was impossible to prove the claim of CreditEase Company. " It can be seen that in this case, the appraisal institution unilaterally entrusted by the employer does not have the relevant testing qualification certificate, which is one of the reasons why the court does not accept the appraisal report.

(20 18) CaseNo. the Supreme People's Court 1 13 1 The Supreme Court held that: "The evidence on quality problems presented by Hong Xin Company in the first instance of this case was not confirmed by No.22 Metallurgical Company * * and the supervision unit, or confirmed by qualified relevant professional institutions, which was not enough to prove that there was a problem with the project quality. Hong Xin Company independently entrusted an appraisal agency to make a project quality appraisal report, and its appraisal data was not recognized by the 22 nd Metallurgical Cross-examination. The appraisal conclusion did not distinguish whether the quality problems of the project involved were caused by the construction of the 22 nd Metallurgical Company or the construction of the original construction unit of the project. " In this case, the Supreme Court refused to accept the appraisal report for three reasons: 1. The evaluation report has not been confirmed by the employer, contractor and supervision unit or by qualified relevant professional institutions; 2. The evaluation report is not approved by the contractor; 3. The appraisal conclusion does not distinguish whether the quality problems of the project involved are caused by the construction of the continuing construction unit or the original construction unit.

Article 32 of "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" stipulates: "When the people's court approves the application for appraisal, it shall organize both parties to negotiate and determine an appraiser with corresponding qualifications. If the parties fail to negotiate, it shall be designated by the people's court. If the people's court entrusts an appraisal according to its functions and powers, it may appoint an appraiser with corresponding qualifications after soliciting the opinions of the parties. " Article 36 stipulates: "The appraisal certificate shall be signed or sealed by the appraiser, and the corresponding qualification certificate of the appraiser shall be attached. If an appraisal institution is entrusted, the appraisal certificate shall be sealed by the appraisal institution and signed by the personnel engaged in appraisal. " Article 40 stipulates: "If a party applies for re-appraisal, the people's court shall allow it under any of the following circumstances: (1) If the appraiser does not have the corresponding qualifications, the original appraisal opinion shall not be used as the basis for ascertaining the facts of the case."

As can be seen from the above provisions, judicial expertise should be conducted by appraisers with corresponding qualifications. If the appraiser does not have the corresponding qualifications, the parties may apply for re-appraisal. Therefore, in the unilateral entrusted appraisal, to enhance the credibility and authority of the unilateral entrusted appraisal report, it should also be appraised by an appraiser with corresponding qualifications as far as possible. The appraisal report is not issued by appraisers with corresponding qualifications or qualifications, and the unilateral entrustment of the appraisal report may not be accepted.

4. Clarify the purpose of the assessment, so as to avoid that the assessment report issued by the assessment agency cannot give a clear conclusion, which will lead to the failure of the assessment purpose.

(20 18) in the case of Guangdong Minzhong. 22 19, the court of first instance held that Hua Xun Company raised the quality problems of the project involved, but did not apply for quality appraisal. The opinions issued by the unilaterally entrusted appraisal agency are not enough to prove that there are quality problems in the project involved and cannot support Hua Xun's defense reasons. The Guangdong High Court upheld the above judgment.

Before entrusting appraisal, the purpose of quality appraisal must be clear, and the purpose-oriented in the process of entrusting appraisal. For example, in the entrustment appraisal agreement, it may be considered to require the appraisal institution to give a clear appraisal conclusion on the appraisal result of a certain matter, so as to avoid that the final appraisal report is ambiguous and cannot prove whether there is a problem in the project quality, which will lead to the failure of the litigation process.

5. The source of inspection materials should be clear.

(20 13) Shenzinuo, Gao Famin, Guangdong. 1203, Guangdong Higher People's Court held: "First of all, City Star Transportation Company advocates that the inspection report should be used as the basis for ascertaining the facts. However, the inspection report was not made by the court of first instance or the appraisal agency entrusted by the second instance, but was made by the Guangdong Building Materials Quality Inspection Center unilaterally entrusted by City Star Transportation Company. Because the appraisal was submitted unilaterally by City Star Transportation Company, the source of the materials submitted for inspection is unknown, and there is no evidence to prove that Guangdong Building Materials Quality Inspection Center has relevant qualifications for engineering quality appraisal, therefore, for the above reasons, the inspection report cannot be used as the basis for determining the facts of this case. "

In the above-mentioned cases, the Guangdong Higher People's Court held that "the source of the materials submitted for inspection is unknown" is one of the reasons for not accepting the unilateral entrusted appraisal report. If you intend to entrust an appraisal agency unilaterally to appraise the quality of engineering materials, you should carefully consider the selection method of inspection materials, and try your best to ensure that the source of inspection materials is clear and the sampling method is reasonable and fair.

6. Inform the other party to participate in the evaluation process before the evaluation.

In the case of (20 15) No.362, Jincheng Company applied for retrial, saying: on the premise that both parties agree that there are quality problems in the project, one party may entrust an appraisal. The Supreme Court held: "The question of whether to adopt the conclusion of engineering quality appraisal. The projects involved have been accepted and handed over. Jincheng Company unilaterally entrusted an appraisal agency to appraise the quality of the project involved, without notifying Huaye Company to be present. Huaye Company does not recognize the conclusion of quality appraisal. In this case, it is not improper that the original judgment did not unilaterally accept the engineering quality appraisal conclusion entrusted by Jincheng Company on the quality issue. "