Regulations
of Shenzhen Municipality on Judicial Appraisal
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(Adopted at the Fifth meeting of the
Standing Committee of the Third Shenzhen Municipal People's
Congress on February 23, 2001. Ratified at the Twenty-sixth
meeting of the Standing Committee of the Ninth Guangdong
Provincial People's Congress on May 31, 2001.)
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Chapter
Ⅰ
General Provisions
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Article
1 In order to
normalize the activities of judicial appraisal, protect the
parties' lawful rights
and interests, guarantee the
impartiality of judicial activities, these regulations are
formulated
in accordance with the provisions of relevant laws
and administrative regulations as well as the actual
circumstances of Shenzhen Municipality.
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Article
2 "Judicial
appraisal" in these regulations refers to the activity that
the judicial appraiser
makes a technical appraisal and judge to
relevant evidences involving the case. (activities
of technical appraisal and judge that the judicial appraiser
makes to relevant evidences
involving the case)
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Article
3
The judicial appraisal shall follow the principles of
scientificalness, objectiveness, impartiality,
timeliness and
legitimacy.
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Article
4 The judicial
appraisal shall exercise the system of withdrawal, secrecy and
investigation for the
mistaken appraisal。
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Article
5 The
people' s court, the people' s procuratorate and the
department for public security (hereinafter
referred to the
department for public security and justice) are responsible for
administering the
appraising work of the judicial appraising
organs that are set up within the departments.
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The
municipal administrative department for justice shall be
responsible for guiding and administering
the judicial
appraising work serving the society.
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Article
6 The judicial
appraiser shall carry out the judicial appraisal independently
according to law and
shall not be intervened by any organs or
individuals.
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Article
7 The
municipal working committee for judicial appraisal shall be set
up which consists of the persons
in charge of the municipal
people' s government and its relevant departments, the
municipal intermediate
people' s court, the municipal
people' s procuratorate as well as other relevant departments.
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The
municipal working committee for judicial appraisal shall be
responsible for guiding, supervising
and harmonizing the
judicial appraising work.
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The
municipal administrative department for justice shall be
responsible for the daily work of the
municipal working
committee for judicial appraisal.
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Article
8 The
municipal expert committee of judicial appraisal (hereinafter
referred to as the expert committee)
shall be set up. It shall
employ some experts to be the appraisers who are responsible for
reviewing
the appraisal of this municipality.
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The
member of the expert committee shall be the part-time expert(
part-time experts).
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Article
9 The
municipal people' s government and judicial department shall
attach importance to and obey
the reform of the judicial
appraisal system and gradually realize the unificationary and
normative
administration of the judicial appraising work.
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Chapter
Ⅱ
The Judicial Appraising Organs and Appraisers
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Article
10 "The
judicial appraising organs" referred to in these regulations
include the appraising organs
set up within the department for
public security and justice (hereinafter referred to as the
appraising
organs of the department for public security and
justice), the expert committee and other appraising organs set
up according to law (hereinafter referred to as the social
appraising organs).
"The
judicial appraisers" referred to in these regulations include
the appraisers in the appraising
organs of the department for
public security and justice, the expert appraiser in the expert
committee
and the appraisers in the social appraising organs.
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Article
11 The
appraising organs of the department for public security and
justice shall carry out (assume)the
judicial appraisal within their respective powers and duties
according to law.
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Article
12 Only having
gone through the registration formalities according to laws,
regulations and relevant
provisions of the State, may the social
appraising organs undertake the activities of judicial
appraisal.
The social appraising organs shall
undertake the business of judicial appraisal within the range of
registration.
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Article
13 The
municipal judicial appraising center shall be set up according
to (in the light of ) necessity,
which uniformly undertakes the
judicial appraising business of the appraising organs of the
department
for public security and justice, and may provide the
judicial appraising service for the society.
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Article
14 The judicial appraiser in the appraising organ of the
department for public security and justice shall have the
corresponding quality for the technology and appraiser. The
department for public security and
justice may employ other
person with professional knowledge to be the appraiser.
Only after according with the
conditions determined by the competent department of the
industry
and the judicial appraising organ and acquiring the
quality according to the laws, regulations and relevant
provisions of the State, the judicial appraiser in the social
appraising organ may undertake the business
of judicial
appraisal.
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Article
15 The
judicial appraiser shall enjoy the following rights:
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(1)
to require the consigner to provide the needed materials for
appraisal without consideration;
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(2)
to know the needed materials of the case for appraisal, and to
inquire the party and the witness
if it is necessary;
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(3)
to refuse to accept the appraising entrustment which is illegal,
does/t (doesn`t)accord
with the appraising conditions or exceeds the appraising ability
of himself;
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(4)
the reserve the opinions different from other appraisers;改为To
reserve the opinions different from other appraisers;
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(5)
other rights enjoyed according to law.
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Article
16 The
judicial appraiser shall perform the following obligations:
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(1)
to follow the principle of taking facts as the basis and to
observe the professional ethics
and operating norms;
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(2)
to appear in court;
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(3)
to take good care of the appraising materials;
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(4)
to withdraw according to law;
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(5)
to keep the state secrets, business secrets and personal
privacy;
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(6)
other obligations that shall(should)be
performed according to law.
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Article
17
The judicial appraiser shall (should)withdraw if there is one of
the following conditions:
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(1)
being the party of this case or near relative of the party;
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(2)
having interests with this case;
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(3)
having been the investigation officer, prosecuting officer,
judge, witness, defender or law
agent;
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(4)
having other relations with this case which may affect the just
(justness) of the appraisal.
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Chapter Ⅲ The Initial Appraisal
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Article
18
"Initial appraisal" in these regulations refers to the
judicial appraisal made before it is submitted
to the expert
committee.
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Article
19 Whether to
carry out the initial appraisal during the lawsuit shall be
decided by the department
for public security and justice. The
party may apply to the department for public security and
justice for initial appraisal. With the consent of the
department for public security and justice, the party may
entrust the social appraising organ to carry out the initial
appraisal.
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Article
20 The application for the appraisal shall accord with the
following conditions:
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(1)
the applicant according with the legal conditions;
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(2)
the materials sent for appraisal according with the appraising
conditions and requirements;
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(3)
the program that the applicant applies for appraisal being
within the range of the case and
the powers and duties of the
accepting organ;
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(4)
the program that the applicant applies for appraisal being not
prohibited or restricted by laws,
regulations and relevant
provisions of the state;
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(5)
Other conditions provided in laws and regulations.
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Article 21
The appraising organ may decide to terminate the appraisal if
there is one of the following conditions:
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(1)
the party who submits the appraising documents requiring to
terminate the appraisal;
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(2)
the party who submits the appraising documents failing to
provide the relevant necessary materials
needed for the
appraisal;
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(3)
meeting the technical problems unable to solve by the organ
during the appraisal.
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If
the appraising organ decides to terminate the appraisal, it
shall give written reasons to the
applicant.
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"The
party submitting the appraising materials" in these
regulations refers to the organization
or individual that holds
and provides the appraising materials to the appraising organ.
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Article
22 The
original appraising organ shall reorganize the appraisal if
there is one of the following conditions:
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(1)
the appraiser failing to accord with the legal qualification;
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(2)
the submitted materials being inconsistent with the facts;
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(3)
the appraiser making the false appraisal intentionally;
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(4)
the appraiser failing to withdraw though he shall (should)withdraw;
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(5)
other conditions that may affect the objectivity and truth of
the appraising conclusions.
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Chapter
Ⅳ
The Reviewing Appraisal
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Article
23
"The reviewing appraisal" in these regulation refers to the
appraisal made by the expert committee.
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Article
24 The
reviewing appraisal may be made if there is one of the following
conditions:
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(1)
the department for public security and justice being not
satisfied with the conclusion of initial
appraisal;
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(2)
the party being not satisfied with the conclusion of initial
appraisal made by the appraising
organ of the department for
public security and justice and applying for the reviewing
appraisal;
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(3)
one party being not satisfied with the conclusion of initial
appraisal provided by the other
party and applying for the
reviewing appraisal.
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Article
25 The
reviewing appraisal shall be made with the entrustment of the
department for public security
and justice.
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If
the applicant is not satisfied with the initial appraisal, he
may apply to the organ dealing
with the case in writing for the
reviewing appraisal.
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If
the organ dealing with the case decides not to accept the
application for the reviewing appraisal
after an examination, it
shall give written reply to the applicant and explain the
reasons.
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If
laws, regulations or relevant provisions of the State have
special provisions to (on) the choice
of the appraising organ,
these provisions shall be observed (prevail ).
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Article
26 The expert
appraiser in the expert committee shall be the professional who
accords with legal practicing
conditions, has the recognized
higher profession level and public credit in his professional
field,
and be employed (appointed) by the municipal work
committee for judicial appraisal field, and be employed
(appointed) by the municipal work committee for judicial
appraisal with his own application and the recommendation
of the
competent department for industry.(对本段修改如下)
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The
expert appraisers in the expert committee shall meet with the
legal vocation standards, and
their professionalism and
credibility shall have won public recognition. Based on the
application
of the expert appraiser himself and the
recommendation of competent department for industry, the expert
appraiser may be appointed by the municipal working committee
for judicial appraisal.
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The
municipal working committee for judicial appraisal shall
proclaim (publicize)the
name list of the employed (appointed) expert appraisers
periodically.
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Article
27 After
accepting the entrustment for appraisal, the expert committee
shall assign more than three
expert appraisers to review the
appraisal, and tell the name list of the expert appraisers to
the
applicant in time ( and inform the applicant of the names of
the expert appraisers in time).
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If
the expert appraiser has different opinions to the appraising
conclusions, these opinions shall
be recorded on file.
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Article
28 If relevant
departments are not satisfied with the reviewing appraisal, they
may refer (the appraisal)
(添加)
to the appraising organ of their superior department for
appraisal (删除)
or entrust the appraising organ outside this city to make the
appraisal, but shall not organize
the appraising organ in this
city to make the appraisal additionally.
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Chapter
Ⅴ
The Appraising Materials, Report
an(and) Fees
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Article
29 If the
appraisal needs to wear off the checked materials (If it is
unavoidable for the appraisal
to wear off the checked
materials), the appraiser shall obtain the consent of the party
submitting
the appraising materials. If the appraisal needs to
wear out the checked materials or damage the original
(If it is unavoidable for the appraisal to wear off the
checked materials or damage the original), the appraisal
shall
obtain the written consent of the party submitting the
appraising materials.
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Article
30 The
appraising organ shall set up the registration and transference
system of the appraising materials,
and set up the file for
judicial appraisal to take good care of the appraising materials
and data.
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Article
31 The
appraising report shall expressly record the date when the
appraisal is accepted, the consigner,
name of the case,
conditions of the appraising materials, appraising requirements,
appraising conclusions
or opinions, the appraiser and other
contents that shall be concluded (included).
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Article
32 The
judicial appraiser shall sign and affix the (删除)
seal behind(after)the
main body of the appraising report, and affix the special seal
for judicial appraisal of the
appraising organ at the same time.
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The
appraising report shall be invalid if there is one of the
following conditions:
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(1)
the appraising organ or the appraiser failing to accord with
legal conditions or qualities;
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(2)
the appraising procedures being illegal;
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(3)
the appraiser failing to withdraw though he shall withdraw
(should have withdrawn);
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(4)
the appraiser failing to sign or the appraising organ failing to
affix the special seal for
appraisal.
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Article
33 The
standard of the collected appraising fees shall be determined
and publicized by the administrative
department for price
according to law.
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The
appraisal in the criminal part of the lawsuit of public
prosecution and the appraisal decided
by the department for
justice itself and conducted by its appraising organ shall not
be collected
the fees.
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Chapter
Ⅵ
Legal Responsibilities
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Article
34
If the social appraising organ violate the provisions of Article
12 of these regulations to undertake
the illegal appraisal (If
any social appraising organ violates Article 12 of the
Regulations hereby
and undertakes illegal appraisal), the
municipal administrative department for justice shall confiscate
the illegal gains and impose a fine of more than 30,000 yuan but
less than 50,000 yuan.
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If
the (any)social
appraising organ violates other provisions of these regulations
(the Regulations hereby)
in the activities of judicial
appraisal, the municipal administrative department for justice
shall
serve a warning to it and order it to stop business for
rectification; In case of serious offenses, the registration
department may revoke the license of the social appraising organ
according to law.
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Article
35 If the
party violates the provisions of the first paragraph of Article
14 of these regulations,
failing to acquire the legal
qualification to undertake the appraising work, the unit that
the
party belongs to shall give administrative punishment to the
party and relevant persons liable (to the concerned
liable
person). If the party violates the provisions of the second
paragraph of Article 14 of these
regulations, failing to acquire
the legal qualification to undertake the appraising work, the
municipal
administrative department for justice shall confiscate
the illegal gains and impose a fine of more than 5,000 yuan
but
less than 10,000 yuan to the appraising organ that the party
belongs to.
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Article
36 If
violating these regulations in the judicial appraisal, the
judicial appraiser shall be punished
according to the
conditions:
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(1)
If the appraiser is a state functionary, the unit that he
belongs to may give administrative
punishment to him;
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(2)
If the appraiser is an employee of the social appraising organ,
the competent department of
the industry or the municipal
administrative department for justice may serve a warning and
order
him to stop business for more than 3 months but less than
12 months; In case of serious offense, the department
endowing
the qualification may cancel his qualification of the appraiser
or judicial appraiser;
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(3)
If the appraiser is a member of the expert committee, he may be
dismissed by the municipal work
committee for judicial
appraisal.
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Article
37 If the
appraiser in the appraising organ of the department for public
security and justice made
the mistaken appraising conclusion
intentionally or through gross negligence and caused the state
compensation, relevant departments shall claim compensation from
the persons liable for the mistaken appraisal
according to law.
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If
other judicial appraisers made the mistaken appraising
conclusions through negligence and caused
losses to the parties,
they shall give (make) compensation according to law.
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Article
38 If the
working staff in the administrative department for justice or
relevant departments neglect
their duties or act illegally for
personal gains in the administration of judicial appraisal, the
unit that they belong to or the superior competent department
shall give administrative punishments to them.
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Article
39 If the
appraisers or other people violate the provisions of the laws in
the activities of judicial
appraisal, and the circumstances are
serious enough to constitute crimes, the judicial department
shall prosecute their criminal responsibilities.
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Chapter
Ⅶ
Supplementary Provisions
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Article
40
The appraising activities in the arbitration and administrative
enforcement of laws shall consult
these regulations (be
implemented in accordance with the Regulations hereby).
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Article
41 The
municipal government may enact the implementing rules according
to these regulations.
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Article
42
These regulations shall go into effect as of October 1,2001. |