The principle of competition is the most important constitutional principle of Russian legal proceedings. This principle is enshrined in Part 3 of Art. 123 of the Constitution of the Russian Federation.
One of the most important elements of competition is the legal support of expert activities. For the principle to be respected, expert activity must be the prerogative of not only state, but also non-state institutions and experts.
State and non-state forensic examination in Russia: how is it implemented? Why is non-state expertise needed?
Who can assess the damage caused?
The current version of the Civil Code determines that the responsibility for eliminating the consequences caused by flooding of residential premises lies with the person responsible for the incident. This means that if sewer pipes break due to violation of the rules of operation of the latter, repairs from neighbors are paid by the owner of the apartments located above. But in cases where the flood occurred due to the fault of the resource supplying organization (high pressure in the main line or otherwise), then in such situations the damage is compensated not by the owner, but by the housing office or Vodokanal.
Attention: both public and private companies have the right to assess the bay. At the same time, employees of such organizations must meet the requirements defined at the legislative level.
The assessment commission establishing the amount of damage caused may include persons who:
- have a higher education (optimally in the field of construction work);
- are on the list of employees of the self-regulatory organization of appraisers;
- have insured your own liability;
- underwent professional training, upon completion of which they received the appropriate certificate.
Attention: without a qualification certificate, appraisers do not have the right to conduct damage assessments and sign flood reports. Such documents are not suitable for consideration in court.
The need for construction education is explained by the fact that appraisers need to:
- choose a method for restoring the damaged premises;
- select materials used to repair damage;
- determine the type and scope of future work;
- determine the potential consumption of materials.
If the appraiser does not have a specialized education, civil engineers are involved in the procedure.
Independent assessment
Every company sooner or later uses the services of an appraiser. In some cases, an independent assessment is required by law, in others – by common sense.
T.A. Evdokimova, expert of AG "RADA"
The cases in which a company is obliged to conduct an assessment are stated in Article 8 of the Federal Law of July 29, 1998 No. 135-FZ “On Appraisal Activities”. You need to use the services of an appraiser if the company:
– takes out a loan secured by real estate;
– privatizes state or municipal property;
– transfers property as a contribution to the authorized capital of another company, etc.
The assessment will help in disputes with tax authorities. The inspector can check whether the prices at which you sell the goods correspond to the market level. In this case, the report of an independent appraiser will be a strong argument in your favor.
In addition to the law on valuation activities, other regulatory documents also require valuation. Usually they are remembered only when there is very little time left for assessment. It has to be done in a short time frame. And this significantly (on average 2 times) increases its cost.
According to subparagraph 8 of paragraph 1 of Article 250 of the Tax Code, an independent assessment is needed if a company received property (work, services) free of charge and does not have a document on its market price. It is also necessary when revaluing property. This is indicated in paragraph 15 of the Accounting Regulations “Accounting for Fixed Assets” PBU 6/01, approved by Order of the Ministry of Finance dated March 30, 2001 No. 26n.
The court may order a property valuation if it cannot make its decision without it. And also by a bailiff, if any of the disputing parties does not agree with his assessment. This is stated in Article 52 of the Federal Law of July 21, 1997 No. 119-FZ “On Enforcement Proceedings”. Often, an assessment is also necessary in case of bankruptcy of a company (see Article 130 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”).
In some cases, the company conducts the assessment at its own request. Founders often want to know the market value of their business in order to attract investors or sell the company. An independent appraisal is useful when selling or buying real estate, as well as when determining the value of property discovered during an inventory.
If property worth more than 20 thousand rubles is contributed to the authorized capital of a limited liability company instead of money, the company is obliged to conduct an independent assessment of it. This is stated in paragraph 2 of Article 15 of the Federal Law of February 8, 1998 No. 14-FZ.
Joint-stock companies must engage an appraiser to determine the value of the property that is contributed as payment for shares, regardless of its value. This is stated in paragraph 3 of Article 34 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” (hereinafter referred to as Law No. 208-FZ). In addition, the assessment is mandatory when a company buys back its own shares from shareholders (clause 3 of article 75 of Law No. 208-FZ).
Valuation of property contributions has its own characteristics. For example, a car is contributed to the authorized capital of a company. First, its owner is determined. If the owner of the car is a citizen, then the appraiser will need its technical passport. The investor can be a company that has the car on its balance sheet. Then, in addition to the technical passport, it is necessary to prepare documents for the revaluation of this fixed asset and a lease agreement (if there is one). After examining the technical condition of the car and specifying the year of its manufacture, the appraiser decides how much it is currently worth. This will be the cost of the contribution to the authorized capital.
The founders can contribute a plot of land or a building to the authorized capital of the company. In this case, to determine the market price, the appraiser will need:
– certificate of registration of rights to real estate;
– documents on revaluation, if it was carried out;
– registration certificate, certificate, floor plan, land plot plan (they need to be taken from the BTI).
If any of these documents are missing, appraisers will measure and inspect the property themselves. This procedure is more complicated and therefore much more expensive.
Please note: the so-called intangible benefits cannot be contributed to the authorized capital - business reputation, authorship rights, etc. But various property rights may well become a contribution. For example, if it is renting a plot of land, disposing of an apartment or receiving royalties. In other words, any right that can generate income for its owner can be added to the authorized capital.
If a property claim is considered in court, then the question almost always arises about the price of certain claims. Judges insist that they be presented with an accurate calculation of the cost of the claim. There are cases when property cannot be awarded, for example, if it is lost. Then the court makes an order to pay its cost. To do this, it needs to be calculated correctly.
The outcome of the case sometimes depends on the value of the property, although the claim itself is not directly related to this property. For example, the amount of property tax depends on the value of this property. If the company and the tax authorities determine the value differently, a dispute will arise about the amount of tax.
In more than 50 percent of cases, the price of the claim itself is controversial: the plaintiff is usually inclined to increase it, and the defendant - to decrease it. In such cases, the court cannot do without a competent expert. A professional appraiser can become such an expert.
To determine the value of property or claims, the court is not required to engage an independent appraiser. Experts are invited for this purpose. The main requirement that is presented to him is to be a specialist in a certain field (Article 55 of the Arbitration Procedure Code and Article 79 of the Code of Civil Procedure). In practice, confirmation of an expert’s knowledge is only a diploma confirming his professional education. There are no additional requirements for it. Both arbitration and ordinary courts can appoint any person as an expert.
However, there are several restrictions. Naturally, incapacitated citizens cannot act as experts. In addition, they should not be relatives of the plaintiff or defendant, the judge, the prosecutor and the secretary of the court session.
As a general rule, an expert should also not be a person who, before the case was considered in court, had already provided any services or made an assessment for one of the parties. At least the courts try not to appoint such experts.
Under certain circumstances, the court may appoint an appraiser as an expert. This is done both on his initiative and on the initiative of the plaintiff or defendant.
As a rule, such an opportunity and necessity arises in three cases. Firstly, if there are no documents in the case from which you can find out the price of the property, then it must be established. Secondly, it is necessary to establish the market value of the property, that is, at what price it can actually be sold or bought. And finally, the data on the value of the property that is on file is questionable or needs to be clarified.
It is best to invite an appraiser as an expert. The likelihood that his conclusion will be questioned is very low. It is very difficult for the plaintiff or defendant (in whose interests the assessment was made) to repel in court the attacks of opponents related to the assessment act. Here you can “hide behind” an expert appraiser and demand the court to interrogate him.
An appraiser can participate in a court of general jurisdiction simply as a specialist. This is stated in Part 1 of Article 188 of the Civil Procedure Code. In this case, his conclusion will not be an expert one, he will not have the rights of an expert and will bear criminal liability for his explanations. However, his testimony will still be considered evidence in the case, and the court will take it into account.
In an arbitration court, the appraiser may be questioned as a witness. He will be asked questions and the rationale for any of his conclusions will be clarified if anyone questions them.
In order for the appraiser to be questioned as a specialist or a witness, a petition must be submitted to the judges. This can be done at any time before the court retires to the deliberation room to make a final decision. When presenting a request to order an examination or to involve an appraiser as a specialist or witness, it is necessary to explain to the court why this is necessary.
Why is an independent examination needed?
If a sewer pipe breaks in neighboring apartments during repairs, then the owner (owners) of these residential premises is usually assigned as the culprit. To receive compensation for damage after a flood, you will first need to determine the cause of the flood. In this case, an examination will be required.
Attention: according to the current edition of the Civil Code of the Russian Federation, damage is allowed to be compensated in kind (new things are purchased to replace damaged ones) or in monetary terms.
An independent examination is carried out to establish the following circumstances:
- Factors that led to flooding of the apartment:
- list of damaged objects;
- the amount of expenses necessary for the complete restoration of housing;
Important: the damage assessment report is a document on the basis of which disputes between the guilty and injured parties are settled – both in pre-trial proceedings and in court.
In addition to restoring damaged property, the owner of a flooded apartment has the right to demand compensation for expenses associated with:
- conducting an assessment;
- apartment restoration work;
- consideration of the case in court.
Also, the guilty party is obliged to compensate for moral damages arising, in particular, due to the need to temporarily move to new housing.
The need for independent expertise is explained by the fact that third-party companies provide objective results of the research. When carrying out this procedure, neighbors who flooded the apartment are invited to the scene. This procedure is established by the assessment rules. In such cases, the at-fault party must be given written notice. This document can be sent by registered mail. The at-fault party must sign the notice.
Types of examinations
Based on the goals, methods and objects, automotive technical examinations in case of road accidents are divided into types:
- analysis of the circumstances of the incident;
- technical expertise car condition;
- transport and traceological examination of traces remaining after an accident (at the place where the accident occurred, on the vehicle);
- roadway analysis;
- auto-merchandising examination (assesses the cost of the vehicle and the repairs necessary to restore the car after an accident).
Questions often arise that necessitate setting tasks for an expert. They belong to types of examinations.
It is advisable to note in the resolution on carrying out an examination of a car after an accident its name, for example, “automotive technical examination”.
Property valuation during flooding
In order to achieve full compensation for damage caused by flooding of the apartment, owners are recommended to take the following steps after discovering the problem:
- Find out and eliminate the cause of the flooding. At this stage, you should contact your neighbors who may have a leak. If necessary, you need to submit an application to the Housing Office to shut off the water supply through the riser.
- Contact the management company. The management company will attract an independent commission, which will conduct preliminary studies and draw up a flooding act. This document reflects the fact of the flood, the causes of the problem, a list of damaged property and other information.
- Assess the amount of damage. According to the law, owners have the right to agree with the culprit on compensation for losses incurred in pre-trial proceedings. The amount that the injured party must receive cannot be less than the cost of repairs and purchase of lost items.
These three points are mandatory. In the future, owners can invite an independent appraiser to conduct an examination. With the results of the latter, it is also recommended to contact the person responsible for the flood to conclude an agreement to eliminate the damage. If the neighbor who caused the apartment to flood does not agree with the expert opinion, the injured party has the right through the court to seek compensation for the losses incurred.
In the latter case, you will need to prepare the following documents:
- certificate of state registration of the apartment and grounds for ownership of the property (purchase/sale agreement or other);
- housing office act;
- appraiser's report;
- notification of the examination being carried out (the document is given to the culprit for signature).
When conducting an examination, appraisers conduct a comprehensive examination of the apartment. In particular, the nature of the damage caused and the consequences of the flood are taken into account. The appraiser determines the need to replace home furnishings, clothing, and other items.
Attention: the decision to replace damaged items is made based on the provisions of the Civil Code of the Russian Federation. The law provides a list of items that cannot be restored to their original appearance after flooding.
Additionally, the appraiser conducts a market analysis, during which he establishes the approximate value of things (household appliances or other items) damaged during the flood. If the repair costs exceed or equal the price for which a similar product can be purchased on the market, then the flooded object must be replaced with a new one. The last rule is also determined by current legislation.
Deadline for carrying out road accident examination
For the injured and guilty parties, the timing of the examination is important. It is regulated by the requirements established by the legislation of the Russian Federation.
If the culprit of the accident has a compulsory motor liability insurance policy, and if the victim in the accident has submitted documents prepared for examination, the insurer carries out a car examination within 5 working days.
The insurer's delays have a negative impact on the investigation process. The injured participant can contact an independent auto expert. He finds a company that estimates the loss from damage to the car. An official report is sent to the insurance company for reimbursement.
When an interested party independently carries out examination and other activities, it is important to follow the procedure. The deadline for sending the report to the parties to the process, including the insurance company, must not be missed.
Persons living in the same city are notified 3 days before the event. In other cases, the period is 6 days. The day on which the notice is sent by mail should not be taken into account, nor should the day of the inspection. The results obtained are provided to the interested party within the time frame established by the parties - about 10 days.
What and how is assessed by an expert when filling an apartment?
Involved experts assess the damage that the flood caused to real estate and things located in the apartment.
That is, the owner receives a conclusion in which the damaged items and the amount of repairs required to restore the home are noted.
Despite the fact that a flood usually causes partial damage, the amount of compensation is calculated taking into account all the work. The latter means the following: if the floor material (linoleum, carpet or other) is damaged due to the flood, then the latter is completely replaced. This requirement is established by the current SNiP.
Please note: these rules are not always followed. In some cases, local repairs are required to eliminate the consequences of a flood, which is also reflected in the conclusion.
Water causes traces of mold to form on the walls and ceiling. Therefore, the final report reflects not only the need to replace wallpaper or other covering, but also the cost of antifungal treatment.
A special place in the calculations is occupied by structures and products made of wood. This material swells when in contact with water. In this regard, doors, furniture and other wooden objects cannot be restored and are replaced with new ones.
The culprit of the flood may challenge some expert opinions in court. In particular, after a flood, cracking of plastic structures (PVC windows and others) is possible. It is difficult for owners to prove how contact with water caused damage to this material. But similar consequences are possible if the flood happened in winter.
Many problems arise when assessing compensation for damage to electrical wiring. This is explained by the fact that such defects are often hidden and are revealed later.
Causes and culprits of the bay
The Housing Code assigns owners the responsibility to maintain apartments in proper condition. It follows from this rule that in the event of a pipe break, the owner must repair the damage caused by the flood. In order to prevent such violations, owners are required to allow employees of the DEZ or Management Company to check the condition of water supply pipes.
Cases cannot be ruled out when utility services become the culprits of the flood. This happens if a flood occurs due to a roof leak or a sewer pipe break.
Attention: according to judicial practice, public utilities (DEZ) bear full responsibility for damage caused by roof leaks or sewerage breaks.
Regardless of who is determined to be the culprit of the flood, the restoration of the apartment (purchase of materials, damaged items, etc.) is carried out at market prices.
Reasons why the results of an extrajudicial examination may be rejected
Both types of research can be carried out by the same specialists working both in government agencies and in commercial organizations that have the appropriate license to provide services in this category. In both cases, it is necessary to adhere to a certain algorithm - depending on the type of research (fire-technical, linguistic, handwriting, etc.). But extrajudicial examination is most often rejected not because of the judge’s bias, but for the following reasons:
- the procedure for notifying the parties: about the very fact of the examination, place and time;
- expediency: discrepancy between the subject of the dispute and the actions performed;
- the expert’s qualifications do not correspond to the type of examination;
- During the examination, instruments/devices that did not undergo the certification procedure, etc. were used.
How is an expert examination carried out?
The preparation of a damage assessment report is preceded by the following procedures:
- study of documents allowing to establish the causes and consequences of the flood (flood act from the housing office);
- comparison of the results of the current study with previous ones;
- detection of hidden damage;
- compiling a list of materials from which the damaged items are made;
- compiling a list of damages incurred.
Additionally, the appraiser measures the area and height of the room, the dimensions of window and door openings. During the inspection, the expert takes photographs of leaks and the consequences caused by the flood. These data are subsequently reflected in the final report. If necessary, third-party experts are involved in the specified work: builders, repair teams or others.
Based on the inspection report, photographs and preliminary estimates drawn up at the scene of the incident, an expert report is generated. This document reflects the total amount of compensation with justification for each figure. The report can later be used to resolve disputes in court.
Consumer expertise
The Center for Independent Consumer Expertise is a structural element of the Russian Consumer Union. The organization is a third independent party in resolving disputes between the consumer and the seller (manufacturer), the customer and the contractor, the seller and the manufacturer.
The company provides legal assistance to consumers in the event of conflict situations, organizes an independent examination or assessment of damage.
Consumer Expertise Centers work in the following areas:
- Expertise of clothing and footwear;
- Research of dry cleaning services;
- Expertise of household appliances, including the entire list of technically complex products;
- Expertise of electronic equipment;
- Furniture research;
- Housing and communal services;
- Examination of construction devices and electrical equipment for household use.
Do you know what rights are guaranteed to you by consumer protection legislation? Find out more about the main provisions of consumer law.
This legally guarantees the possibility of returning low-quality goods. This link describes in more detail the terms for returning funds to the buyer.
Many banks come up with illegal additional fees and commissions for clients. In this publication, read about the legislative norms for the return of commission for issuing a loan from a bank.
Consumer examination of goods is carried out based on written applications (claims) from consumers, manufacturers and trading organizations in the field of product or service quality. She may be appointed by a judicial authority.
Forensic examination of apartment flooding
Unauthorized actions of the appraiser are punishable according to the norms of criminal law. The introduction of such a rule has led to the fact that courts no longer order a re-examination of a flooded apartment and accept the final report as evidence.
Please note: if necessary, the court may order a re-evaluation. Basically, such decisions are determined by the need to establish cause-and-effect relationships or significant shortcomings have been identified in the expert opinion.
When considering a case in court, the assessment methodology is also taken into account. If the flood affected private housing, then, basically, the amount of compensation takes into account the costs associated with repairing the premises and purchasing damaged items. When a flooded apartment was used to generate income, the court also takes into account the amount of income that the owner lost.
Tasks of automotive technical examination in case of an accident
The main task that automotive technical expertise is designed to solve is to provide expert assistance in investigating the causes and circumstances of road accidents.
This type of examination allows you to answer a set of questions that can be divided into the following categories:
- Questions related to the determination of technical characteristics and parameters of the road situation.
For example, determining indicators of road surface adhesion, acceleration and braking coefficients, rolling resistance, trajectories, vehicle movement times before and after their collision and other physical indicators.
The main goal is to determine the initial physical indicators and quantities necessary to carry out the expert study.
- Questions related to the analysis of the actions of drivers when driving their vehicles.
The expert analyzes and evaluates the actions of drivers in terms of the correctness and consistency of their vehicle control techniques in relation to a specific road situation.
The main goal is to answer the question about the degree of compliance of the actions of participants in an accident - vehicle drivers, with the technical requirements of the Russian Federation Traffic Regulations and vehicle driving techniques and to establish the so-called technical cause-and-effect relationship between the actions of drivers and the resulting car accident.
In cases where the behavior of drivers during the incident and immediately after it did not comply with the requirements established by the Russian Federation Traffic Regulations, the expert should be asked the appropriate questions.
Articles to help:
Responsibility and punishment for leaving the scene of an accident
The order and sequence of actions of the driver when registering an accident
a) Issues related to the study of the mechanism of the accident and the determination of vehicle movement parameters at various stages (phases) of a road traffic accident.
For example, determining the speed and time of movement of a vehicle from the moment of its braking to the moment of collision or collision, the location of vehicles and pedestrians relative to each other at different periods of the incident.
The main goal is to answer the question about whether the drivers of vehicles involved in the incident have the technical ability to avoid (prevent) the incident.
b) Questions about the so-called “technical reliability” of the testimony of eyewitnesses and participants in road accidents.
During the proceedings (trial) of cases of road traffic accidents, law enforcement officials and the court are faced with the need to analyze the testimony of witnesses and participants in the incident for their veracity and factual reliability.
Often the testimony of those involved in the incident and its eyewitnesses contradict each other.
Law enforcement officials and courts involved in proceedings in cases of road traffic accidents do not have special knowledge in technical matters and therefore are not able to assess the reliability of this or that information.
In such cases, the main goal is to answer questions about the degree of compliance of the testimony of a particular person with the technical data established and confirmed by examination.
For example, a car driver who hit a pedestrian crossing the road outside a pedestrian crossing, in order to avoid liability for the offense committed, deliberately understates in his testimony the speed at which he was moving before the incident.
The traces of car braking recorded at the scene of an accident, when analyzed by an expert auto technician, will unmistakably and reasonably expose an unscrupulous driver of the unreliability of the information he provided about the speed of movement.
The estimated speed of the vehicle, obtained during the expert study, will form the basis for the indictment decision of the investigator (court).
Cost of damage assessment service
The cost of expert services consists of various factors. More often, appraisers determine the price taking into account the following circumstances:
- type of flooded premises (residential or non-residential);
- size of the room (the larger the apartment, the higher the price);
- extent of damage;
- number of damaged items;
- region where the apartment is located;
- appraiser qualification level.
Independent appraisers, on average, charge 3-3.5 thousand rubles per room for such services.
Advantages of extrajudicial examination
Statistics show that civil cases occupy a leading position in litigation, so the service of out-of-court research/assessment/review is in great demand. Extrajudicial examination has the following advantages:
- independence;
- impartiality;
- availability of specialists of various qualifications on staff;
- equipped with modern and certified equipment;
- tight deadlines for providing services;
- flexible price list;
- objectivity.
