Will "appraisal opinions" be accepted by the court?
Case Description
A fire broke out in a factory building of a certain company. After investigation by the local public security fire brigade, it was determined that the cause of the fire was "arc discharge caused by a short circuit in the transformer". A certain company then filed a lawsuit against the transformer manufacturer, demanding compensation for the fire losses. During the first instance, the court entrusted W appraisal agency to conduct an appraisal on whether the transformer involved in the case has quality issues. The W appraisal agency first issued an "Expert Opinion", and the conclusion is that there are no quality issues with the transformer involved; Afterwards, a "Accident Site Analysis Explanation" was issued, overturning the conclusion of the "Expert Opinion" and believing that there were quality issues with the transformer involved. Among them, the "Expert Opinion" is stamped with a special seal for appraisal, and signed by appraisers Liu and Lin; The 'Accident Site Analysis Explanation' is stamped with a special seal for identification, without the signature of the appraiser.
Lawyer Analysis
The first and second instance courts accepted the "Accident Scene Analysis Explanation" on the grounds that W appraisal institution has appraisal qualifications and appraiser Liu appeared in court to explain the reasons for changing the opinion. However, the retrial court held that: the "expert opinion" as evidence of civil proceedings stipulated in Article 63 of the Civil Procedure Law of the People's Republic of China does not generally refer to any form of opinion issued by the appraisal institution, but the opinion issued by the appraisal institution in accordance with legal procedures, rules and standards; The procedure for making the "Accident Site Analysis Explanation" issued by the W appraisal agency does not meet the legal requirements of the "appraisal opinion" and should not be accepted according to law. The analysis and explanation are focused on the following three aspects:
Firstly, from a formal perspective, the General Principles of Judicial Appraisal Procedures stipulate that appraisal opinions should be produced in a unified text format and signed by judicial appraisers. If multiple participants have different opinions on the appraisal opinions, it should be noted. The "Accident Site Analysis Explanation" issued by the W appraisal agency does not specify the basis, process, method, and other contents of the appraisal in a unified document format, nor does it have the signature of the appraisal personnel, which is not in accordance with the legal form.
Secondly, from a procedural perspective, judicial appraisal implements a system of expert responsibility, and judicial appraisers are responsible for their own appraisal opinions. For the same appraisal matter, it should be jointly appraised by two or more judicial appraisers. However, the "Accident Scene Analysis Explanation" did not have the signature of the appraisers, and only Liu appeared in court for questioning. Even if it is considered as an appraisal opinion, there is no evidence to prove that it was issued by two or more appraisers in accordance with legal procedures.
Once again, after the issuance of the Expert Opinion, although a certain company raised objections and submitted additional appraisal materials, the court did not entrust the initiation of supplementary appraisal or re appraisal procedures. In this case, the subsequent opinions issued by W appraisal agency can only analyze, explain, or reinforce the Expert Opinion. However, the W appraisal agency overturned the conclusion of the Expert Opinion in the form of issuing an "Accident Site Analysis Explanation", lacking legal basis.
At present, in judicial practice, courts tend to conduct substantive review of appraisal opinions to eliminate the situation of "using appraisal as a substitute for trial". According to the Civil Procedure Law of the People's Republic of China, Several Provisions of the Supreme People's Court on Civil Procedure Evidence, General Principles of Judicial Expertise Procedure, etc., the following expert opinions are difficult to be accepted by the court:
（1） The appraiser does not have the corresponding qualifications or qualifications;
（2） The appraisal procedure is seriously illegal;
If not produced in accordance with the unified text format; Not signed by a judicial expert; If multiple people participate in the appraisal and have different opinions on the appraisal opinions, they are not specified; Not stamped with the judicial appraisal special seal of the judicial appraisal institution; The appraiser should have avoided but did not; The appraiser did not record and sign the appraisal process in real time.
（3） The appraisal opinion clearly lacks sufficient basis;
If uncertified materials are used as identification materials; Failure to comply with and adopt technical standards, specifications, and methods in the field of expertise for identification; Conflicting opinions before and after signing, lack of coherence, stability, etc.
（4） The appraiser refuses to testify in court;
