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§ 4.2. Special building-technical knowledge

In the law there is no the criterion differentiating special and nonspecial knowledge, and it causes certain difficulties. So, A.A.Ejsman defined special knowledge as «not well-known, not popular, not having mass distribution» [196, with.

91]. According to M. K Tpeyшникова, it is such knowledge which «are outside of legal knowledge, the well-known generalisations following from experience of people» [438, with. 269].

The resulted definitions outlining borders of special knowledge by means of negative criterion, it is difficult to recognise settling. C antique times it is known, that definition through negation is worst of definitions. The description of properties, the parties and relations defined is more preferable. As to knowledge in the field of building, they cannot be considered as exclusive property of experts. More likely (along with some well-known knowledge in the field of pedagogics and medicine) with them owing to everyday necessity (independent building of summer residences, garden small houses, carrying out of repair work in apartment etc.) And the big number of the popular literature published on purpose «to acquaint the reader with the basic receptions of civil work and by that to help it to erect independently the house and outdoor constructions» [301] the set of people is familiar. We will notice, however, that the possession such superficial knowledge creates at the person illusion of possibility of the decision of expert problems by it. Having received a wide circulation and as though having been beyond everyday, household level, this knowledge they have not reached the scientific, systematised level whereas «at whatever step of development there was special expert knowledge... Represent not simple set of" data »on objects, not« a set »information, and certain system of knowledge» [377]. Therefore it is obvious, that in SSTE it is necessary to understand not easier sum of knowledge as special knowledge from building area, and knowledge, possessing with which the expert should give the qualified answers to the questions put before it. So, Z.M. Sokolovsky, believing, that «the basic sign is a vocational training kind in which frameworks data» turn out, carries to essential signs of special knowledge their objective character, netozhdestvennost to knowledge of concrete persons, «historical mobility» the borders changing with change of volume of concept "professional education" [197, with. 201-202].

In the legal literature a lot of attention [184 was given to a parity of concepts of "knowledge" and "knowledge"; 398, with. 9 - 11]. In the philosophical literature the knowledge is defined as «a product of public material and spiritual activity», and knowledge - as «process of creative activity of the people, forming their knowledge on which basis there are purposes and motives of human actions».

And though, in our opinion, obviously, with the big share of convention it is possible to approve distinction of the specified terms, that the first - is static, and the second, on the contrary, - dynamically assumes purposeful actions. The knowledge, certainly, also is dynamical by the nature: it constantly changes - and is qualitative, and quantitatively. Dependence between volume of daily and scientific knowledge has not cause and effect, but functional character.

Hence, with knowledge of world around of knowledge of it become more and more differentiated and simultaneously system (it expands sphere of application of special knowledge and for legal needs); the sphere of ordinary knowledge is constantly enriched [398, with. 9]. It is obvious, that at court (the inspector, the investigator and so forth) Solving a question on necessity of appointment of examination, there is a requirement for special knowledge, instead of knowledge of the expert. The legislator frequently uses in such situation the "knowledge" term (ch. 4 items 80 UPK, ch. 1 items 25.9, ch. 1 26.4 KoAP). We believe, that here we deal with a situation when the semantic incorrectness admitted once has strongly got accustomed both in standard legal acts, and in the works devoted to problems of expert testimony in court.

Specific line of special knowledge as it has been noted above, their difference from knowledge everyday, ordinary is. «The problem of differentiation of ordinary and special knowledge is a problem of definition of criteria of requirement for special knowledge» [398, with. 7]. Solving this problem with reference to knowledge of the expert-builder, we believe expedient to start with modern representation about features of scientific knowledge [380], bringing attention of the reader own understanding of a question.

So, we will consider characteristic differences of knowledge special and ordinary.

1. Special preparation of the expert. Preparation of experts assumes presence at them knowledge in the field of scientific (theoretical and applied) building disciplines whereas in ordinary understanding of knowledge is only data on subject-oriented communications and the phenomena characterising processes of erection and operation of building objects. And if, speaking about the law, mean steady, constant, essential communications between the separate phenomena, properties and processes as the subject-oriented understand communications less strong and steady, helping to understand surrounding subjects, to use them only for the decision uzkobytovyh questions, as

They give the incomplete and extremely unilateral information on properties of things. So, any person knows how to use a waterpipe and sanitarnotehnicheskim the equipment, but it is improbable, that to it laws of hydraulics, hydraulic engineering and the hydrodynamics which studying is included into programs of preparation of the engineer of a corresponding speciality are known.

Preparation of the expert-builder includes also knowledge of the typical is investigatory - also the judicial-expert situations which permission demands participation of building of the person expert in area. This knowledge allows it to correct methodical approaches depending on a kind of a developing legal collision. We will illustrate it on a definition example judicially the material damage sizes, to the put building object. The affairs connected with the decision of a question on compensation of a damage, caused Means at a gulf or mechanical influence on structures and constructive elements of buildings and constructions (for example, at conducting earthen, burovzryvnyh works, zabivanii base piles in immediate proximity from a maintained building).

The ultimate fact in such cases is the fact of failure, occurrence of a damage and a causal relationship between them. On affairs of this category difficult enough happens to define borders of the competence of the expert at an establishment of the sizes of the damage (losses) which caused by failure or have resulted other negative influences.

In the suppressing majority of cases structures and premises with certain size of physical deterioration are exposed to negative influence. Concerning, whether it is necessary to consider presence and size of deterioration of the given kind at definition of size of a damage, opinions of experts are divided.

The property damage is understood as "a damage put to property of the citizen or the legal person owing to causing to it of harm» [477, with. 473], and under harm compensation - «indemnification of the property damage which has resulted injury» [477, with. 74]. The civil legislation of the Russian Federation starts with «necessity of the full indemnification of harm. The person responsible for harm should compensate it in nature (to give a thing of the same sort and quality to correct the damaged thing, etc.) or completely to pay the caused damages» [475, with. 44]. C our point of view, it is possible in -

terpretirovat this position as follows: the full indemnification of harm to the dissatisfied party can be carried out by payment of the sum equal:

To the price of the damaged thing;

To the price of works, materials and other expenses necessary for correction of the damaged thing;

To size of the losses connected with damage of a thing [31].

Thus, the law provides three excellent from each other on volume of a kind of indemnification. And though the choice of one of them - a court prerogative, instead of the court expert, court cannot make it without attraction of the expert. Therefore at the disposal of legal proceeding, connected with a gulf, a fire or other destroying influence on building object, before the expert-builder following questions should be put:

Whether there is a technical possibility of repair (restoration) of the damaged building (a structure, a construction) or separate premises;

If the specified possibility is available, what size of the expenses necessary for repair (restoration) suffered stritelnogo of object (its part);

If such possibility is not present, what cost of building object (its part) to an event event (a gulf, a fire and so forth)?

And only after carrying out SSTE the court can define the sum which payment to the affected party will answer a principle full, but not superfluous compensation of a damage (that will be, for example, the sum equal to expenses for repair of a building in the presence of technical possibility of its restoration). More often «to correct a thing» it is possible. Thus it is necessary to mean, that owing to objective causes repair cannot be carried out with use of building materials and products, the size of deterioration or a modular condition which [32] would correspond to a condition of materials and the products which have suffered at flooding or a fire.

Repair cost includes also expenses for performance of industrial operations, operation of the equipment, cars and mechanisms in which relation concept use «natural deterioration» is impossible as it is actions, and they are not subject to physical deterioration.

Let's consider this problem on the other hand. It is represented, that such form of compensation of harm as «thing correction» assumes performance of volume of the necessary works directed on restoration of object. In the event that degree of deterioration of a building will be considered, and the repayable sum is lowered proportionally to deterioration size, having remained sum of money it will not be possible to spend repair work in full, up to the end «to correct a thing». Hence, the principle of completeness of compensation of a damage will be broken.

Thus, in the presence of technical possibility of restoration of building object irredundant compensation of the harm put as a result of a gulf or a fire, it is necessary to consider payment of the sum of money equal to volume of expenses, necessary for restoration of object without size of natural physical deterioration of elements of the suffered building (a structure, a construction).

Otherwise business if the building object does not come under to restoration is or its restoration is economically inexpedient. It speaks necessity of granting to the affected party «things of the same sort and quality» or its cost equivalent. Without size of natural physical deterioration of building object it is impossible to define «quality of a thing».

Let's notice, that an establishment the expert-builder of the sizes actually a damage (losses), on what in overwhelming majority of cases focuses court, there is an exit for limits of its special knowledge. This results from the fact that as losses in civil law understand expenses which the person, whose right is broken, has made or should make for restoration of the broken right (ch. 2 items 15 GK). Finding of fact of breach of law - a court prerogative.

2. High accuracy and strict definiteness of special building - technical knowledge. Certainly, certain knowledge and skills are necessary at pasting by new wall-paper of walls of apartment or at repair of a shabby roof of the garden small house, carried out by citizens, whose primary activity is not connected in any way with building, but absolutely other measure of accuracy is necessary, for example, at calculations prochnostnyh characteristics of bearing designs of civil buildings or at definition of kinds, character and sizes of the loadings perceived by elements of industrial constructions, and to make it it is possible only in the presence of corresponding vocational training.

The essential moment is also accuracy and unambiguity of terms used by the expert and definitions. At all advantages of household language - riches of a lexicon, a variety of forms and expressions - in it there is no all set of the specified characteristics, that often enough leads a various sort to misunderstanding at the decision of everyday problems. To the expert's statement (as, however, and the expert) it is taken away the important role in the course of legal proceedings, therefore its speech - both written (the conclusion text), and oral (interrogation of the expert or the expert the inspector, court) should be, how much it is possible, is deprived the lacks inherent in household speech. We will consider as an example a problem of interpretation by the expert-builder of concept "material breaches" (with reference to rules of erection of building object), accepted both in ordinary speech, and in judicial lexicon.

In practice of consideration and the permission of civil disputes often there are affairs during which consideration the question on a pulling down of autocratic constructions is solved. One of the bases for a structure recognition autocratic (owing to extensive interpretation of this concept) and coming under to a pulling down is presence of material breaches of town-planning and building norms and rules (item 222 GK). In this connection the court establishes, whether deviations from the standard data, admitted at the building (designing) are, essential, whether threat to life and to health of citizens is created thus, whether their rights and interests protected by the law [33] are broken.

The concept "material breaches" - typically estimated and as that is not exclusively subjective, and has under itself the objective bases - the valid properties of a subject or the phenomena which are not dependent on our estimation (any estimated judgement of court should be based on the real facts. Value of expert testimony in court also consists in an establishment of the real facts acting in such cases, as criterion of a similar estimation) [423, with. 46].

During research the expert reveals and fixs those or other deviations, defines, in which changes results (can result) house building in a lay-out, an accomplishment of street, settlement, establishes, as influences replacement (in relation to design data) ma (will influence)

terialov, the designs, admitted during building, on durability of construction, possibility of its existence without a full or partial collapse, and change of space-planning decisions in relation to internal premises of the house - on convenience of their operation. However a definitive estimation of importance of deviations from the project, requirements SNiP the court on the basis of its sense of justice, i.e. understanding of principles of the legislation regulating a complex of social relations, concrete norms of the law, the consequences pravoustanavlivajushchih decisions gives them, possibilities of elimination of the admitted deviations, the account of legitimate interests of the parties.

Let's notice, that presence of borders of application of special knowledge makes to court rigid enough demands at a formulation of questions to the expert according to which it is necessary to state their long enough list depending on number of interconnected elements of the ultimate fact; established by means of examination, for example:

Whether have been admitted, by working out of the project of a structure of deviation from requirements SNiP;

Whether have been admitted at erection of a structure of deviation from requirements SNiP and project data;

In what deviations if they take place consist;

As; deviations influence operation possibility, a mode of the maintenance of the next houses;

Whether it is possible to eliminate the revealed lacks, if yes what will be cost of the works directed on their elimination?

Similar detailed elaboration of questions is labour-consuming enough, therefore it is clear to simplify desire of court (judges) a problem facing to it, having reduced them to questions on presence of deviations and on, whether they are essential.

3. Dynamics of change of volume and the maintenance of special building - technical knowledge. The volume and the maintenance of usual knowledge, certainly, too are transformed, but is incomparable more slowly, than special. Development, replenishment of ordinary knowledge is caused, first of all, the new building materials used in individual building and at carrying out of face lifting of apartments appear requirements of household character - the market is filled import electro-and the sanitary-engineering equipment. Them is

Using, more or less active participation of the inhabitant in carrying out of civil work attaches it to knowledge in building, gives some bases for judgements about advantages and lacks of modern building production, ways of performance of industrial operations. Development of special knowledge occurs incommensurably faster, and market relations developing in our country are the original catalyst of progress of scientifically - technical thought in building to its economy. Radical distinction between market and command economy - in functioning of the mechanism of straight lines and feedback of sphere of manufacture and consumption sphere. =ter - zhei this mechanism - the prices, methods of their definition and application. It demands from the expert already others, more a profound knowledge about pricing in building. The concept of market cost of building objects and the ground areas appears and takes root into practice of the decision of cost problems SSTE, is functional svjazanny with them; kinds inherent in the market the costs which are distinct from the market come under to studying: a project cost of an estimation with the limited market, replacement and reproduction costs, cost at existing use, investment cost, cost for the taxation, liquidating and utilizatsionnaja cost and so forth Too most it is possible to tell and about principles of definition of cost: based on representations of the user (utility, replacement, expectation); connected with the market environment (the offer and demand, a competition and so forth) ; The best and most an effective utilisation; connected with the earth, buildings and constructions (the contribution, increasing and decreasing incomes, economic sizes and divisions) and so forth the Object of examination at the decision of a cost problem (definition of its market cost) in modern conditions can already be considered from the point of view of conformity of a building, a structure or a construction to legal requirements and restrictions; the best and most an effective utilisation (that was not inherent in the expert-builder at realisation of its activity in the conditions of "socialist" economy). Thus to an establishment podtezhat such characteristics, as its site, the sizes, the geometrical form and spatial orientation of the ground area on which the building object and the object settles down, a relief of a surface of the territory surrounding it, bearing properties of a ground, presence and absence of vegetation, the reservoirs, flooded zones and so forth Has essential value and

Possibility of realisation of object of an estimation during reasonable time with reception of sufficient return on the investment. Actually market factors influencing cost are changeable, their variability is dynamical. Accordingly, be dynamical special knowledge of the expert in this part should also. This knowledge should include as a basis conceptually-kategorialnyj the device of estimated activity (also rather subject to changes in a course of formation and development of market relations) which elements are reflected, in particular, among sources of is standard-legal and methodical character [34]:

4. Accurately expressed normapshvistsky character of special knowledge eks - the perta-builder. All stages previous erection of building objects (hydrological researches, researches of a geological underlying cause of buildings and constructions, designing), actually building process, and also processes of operation, repair (reconstruction) and recycling of a product of building manufacture are in details regulated by specially developed and approved when due hereunder, obligatory requirements specially developed and approved when due hereunder for performance. It, first of all, building norms and rules (SNiP), departmental building norms (VSN), branch rules, instructions and so forth Till 1993 in Russia was the criminal liability for release of defective goods by the industrial enterprises (item 152 UK RSFSR), release in sale of the substandard goods in trade enterprises (item 157 UK RSFSR). Basic basis of these norms was rigid regulation by the state of the majority of requirements to quality of production with use of various forms of influence on manufacturers of the goods. In one of decisions of the Supreme Court of the USSR it was marked: «the Most actual affairs about release of substandard or incomplete production... It is necessary to consider neposredst -

venno at the enterprises; results of litigations to shine in the press, by radio, TV »[88].

At transition to market relations the circle of normalised indicators of quality of production was essentially narrowed. So, according to the law of the Russian Federation «About standardization» [91], accepted on June, 10th, 1993, obligatory for general observance admit only the requirements, concerning maintenance of safety of production, is direct results and products of work, works and services, decrease in their negative influence on environment, a life, health and property of citizens, and also technical and information compatibility, interchangeability of production, unity of methods of their control and marks.

Other indicators and requirements to quality of production, containing in state standards as already it was marked above, have recommendatory character, and their observance (non-observance) is left to the discretion of the manufacturer (executor) and its counterparts.

Let's notice thus, that proisshedshie recently changes, however, have not led to reduction of number of norms and the rules which are an obligatory element of the conceptual device of the expert-builder.

C everyday experience (acquaintance with norm of a floor space, registration norms and norms of granting of a floor space - at intention to improve a residing condition, with the norms regulating distance between structures on a garden site - at the organisation of seasonal rest and so forth) certain knowledge in this area collects, but they, as a rule, are sketchy and superficial. The Expert-builder, solving various problems, investigating object of building at all stages of its creation and existence, and also materials in which data on actions of the persons directly occupied with performance of industrial operations are reflected, and the persons who are carrying out the organisation and a management by process of building, is obliged comprehensively and deeply to know special provisions and rules, the departmental certificates which volume constantly replenishes, and the maintenance changes.

Normativistsky character of knowledge distinguishes the expert-builder not only from persons who are to some extent familiar with building manufacture, but also from the experts who are engaged in manufacture criminalistic (trasologov, pocherkovedov, avtorovedov and so forth) and biological examinations (soil scientists, ichthyologists, ornithologists and so forth) - At the same time, character of knowledge of experts-builders in a certain measure is similar to knowledge of the persons expert in area inzhenernotransportnyh, technical and engineering-technological examinations. This similarity is caused by that object of research are the subjects intended for consumption - building objects, cars or other production of industrial manufacture, the goods, to which properties (consumer, functional, to properties of safety and so forth) The set of requirements is shown. To special requirements should answer and actions of the persons occupied both creation of production such, and its operation - use on direct appointment. Data on the maintenance and the form of these requirements are reflected in special sources and also constitute an element of special knowledge of the expert.

5. A double orientation of considered special knowledge. C one party, by means of special knowledge the expert receives necessary for it for a summer residence of answers to the questions put before it the information, i.e. for the decision of practical problems, and in this sense they carry out the same role, as ordinary knowledge, behind that only an exception, that the last are used for the decision of everyday problems, and on the other hand, they are directed on development of new knowledge which are formed as by loan of volume of knowledge of the building, existing and developing out of sphere of judicial-expert activity, and during its realisation. So, an example of synthesis of scientific-theoretical knowledge and the experience saved up by experts-builders is the technique of definition of possibility of real section of home ownerships between their co-owners according to the conditions set by court, workings out of variants of section, performance of accompanying technical and economic calculations. They constitute a part of existing system of expert knowledge and are directed on its further development in which course approaches to the decision of the specific questions put on the permission of the judicial expert-builder are formed. It concerns, in particular, references of the revealed defects of premises of apartments or apartment houses to a category hidden or obvious, considerable and insignificant. We will consider more in detail these questions.

According to item 74 ZHK, item 14 item, 17, 20 Laws of the Russian Federation «About bases of a federal housing policy» [101] dogovory hiring, rent and an exchange (now - by fulfilment of the transaction of purchase and sale) premises can be recognised by void on the bases provided by the Civil code (item 178 item, 179), more often as made under the influence of a deceit or error. The specified transactions admit void to such sign, as the flaw in the will, i.e. because of discrepancy of will of the person of its valid will owing to error or a deceit (deliberate deception). Acquisition of apartment houses (apartments) is nullified owing to error concerning certain qualities of a subject of the transaction, essentially reducing or at all excluding possibility of use of premises on their direct appointment more often.

The list of such qualities is great enough:

Discrepancy of level insoljatsii and light exposure of a premise to specifications;

The raised maintenance in air of the unhealthy person of substances - formaldehyde, metanola, ammonia, and pr;

Presence of sources of unhealthy people of substances (for example, as a result of use at building defined teploizoljatsionnyh and finishing materials);

Unsteadiness of floors, negermetichnost seams (connections) stenovyh panels, plates of overlapping, etc.

Consequences of error concerning presence of the listed defects can be in general neustranimy or their elimination will be connected for the mistaking party with considerable expenses.

As the civil-law transaction admits void at not conformity of will at the moment of the transaction of the sustained person to its valid will, it is not difficult to assume, that the will of the person in such cases consists in intentions to get premises without lacks or as it is practically impossible, at least, without lacks which cannot be eliminated without excessive efforts and monetary expenses. Inadequate will of the person can be generated because of inaccessibility of defect to its perception at the usual, not qualified supervision, i.e. in its kind skrytosti, impossibility sustained to estimate relevancy of a lack and possibility of its elimination.

Far not always for an establishment of elements of ultimate facts special knowledge is required. Obviously, they are necessary for an establishment of presence of defect that includes not only faktofiksirujushchy, but also the estimated moment since defect is «each separate discrepancy of production to the established requirements» [286, with. 31]. To reveal defects - means not only to find out any negative feature of the space-planning decision of a building (construction), infringement of integrity of a constructive element, etc., but also to recognise their those, instead of deviations of characteristics of object of research within the accepted assumptions. Thus the expert should describe defect, having specified its site. In some cases the court, having familiarised with the description, with time can draw a conclusion on character of defect - obvious or hidden, i.e. is under wall-paper, pokrasochnym a layer etc. In other cases it is possible only by means of special methods and the means which application is a prerogative of the expert.

On the developed practice the court recognises the transaction of purchase and sale of apartments (apartment houses) void if it is established, for example, that defects of premises have the latent character (that allows to judge error of the participant of the transaction concerning qualities of got habitation) and are considerable and ineradicable (that speaks about essential value of error).

The standard bases for division of defects on hidden and obvious with reference to the given circumstances in expert practice are not developed yet. Existing approaches for the decision of this question cause objections. So, widespread interpretation concept "latent defect" of that sense in which it is given in item 42 of GOST 15467 - 79 is inadmissible, namely: «a latent defect - defect for which revealing in the standard documentation, obligatory for the given kind of the control, corresponding rules, methods and means» [175] are not provided.

At acquisition of apartments (apartment houses) their quality is estimated, as a rule, not by experts, estimation process is not regulated and does not assume use of any special means and methods. It the requirement about the obligatory permission during proceeding of a question on also speaks, whether probably to see defect "with open years" as on its decision depends, defect will be carried to what category - to "hidden"

Or "obvious". Thus without the aid of special knowledge the facts of objective character are established.

In qualification of a lack (defect) as latent it is necessary to note also the subjective moment depending on individual possibility sustained to find out and estimate relevancy of defect, its awareness, experience, physical data. It, certainly, the court without participation of the expert-builder, as well as objective possibility to see defect "with open years" - for this purpose enough everyday experience entirely should establish. Accordingly conclusions of the expert in which basis the aspect of concept provided to specified STATE VOLUME "latent defect" is put, lose the value on affairs of the given category, and before the expert of a question on possibility of visual perception of defect it is necessary to consider statement attempt wrongful, as well as answers of the expert to such questions.

It does not mean, however, that reference of defects of production of building manufacture to a category of "hidden" or "obvious" is exclusively out of the competence of the court expert. Attraction of the expert legally if objects in which relation the certain kind of quality assurance it it is obligatory and regulated by special rules are investigated, for example, at delivery by the contract building organisation to the customer of the erected or reconstructed enterprise, buildings, the constructions, executed assembly, starting-up and adjustment and other works inseparably linked with under construction object (item 720 item, 753 - 755, 757 GK).

This problem is actual not only for SSTE, but also for judicial tovarovedcheskoj and judicial autotechnical examinations in which frameworks questions on an accessory of defects to "hidden" or "obvious" are solved.

As it was already marked, the error concerning quality of got habitation should be essential, i.e. influencing possibility of its use to destination. The given concept includes technical possibility of elimination of a lack and economic expedient it [286]. Special knowledge in the field of building can be necessary for the decision of a question on possibility of elimination of a lack by carrying out of repair both preventive works and definition of their cost. The expert has the right to define also a parity of cost of works and a premise as a whole. An estimation of expediency of lips

Lack wounds are included by the subjective moment depending on a financial position of the victim, its physical possibilities, interest in an exchange, that, certainly, does not enter into the competence of the eksierta-builder.

Without special knowledge in the field of building it is impossible to establish such element of the ultimate fact, as relevancy found out in lacks (defects). Considerable it is considered such defect which essentially influences production use to destination and (or) on its durability [286], i.e. it is characterised not only the sizes and quantity of cracks, roughnesses, low level insoljatsii, etc., but also their influence on possibility of use of a premise on the direct appointment, i.e. as inhabited during time defined by operating specifications.

In due course defect can develop and by the moment of giving of the claim to become considerable; the defect tending to development can be considered as that. At the moment of acquisition of apartment (apartment house) of defect could not be, though conditions of its occurrence existed already then. Here it is important to notice, that the fact of presence of defect and its relevancy are estimated by court at the moment of a legal investigation. If by the moment of awarding judgement of court new defects or insignificant defects were formed became considerable, the victim can address again in court. It is obvious, when at the moment of expert investigation defect is estimated by the expert as insignificant, but tending to fast progressing, he should note the given circumstance in the conclusion, and court to take into consideration possibility of fast occurrence of a major defect and to consider it in the decision.

. Applied character of knowledge of the expert-builder and a role of experiment during their realisation. It equally characterises both process of formation of scientifically-practical building-technical disciplines, and process of formation of the judicial expert-builder.

Certainly, we and in a daily life make set of experiments, we carry out supervision, using thus production of building manufacture or carrying out simple technical operations on its repair and adjustment. Empirical knowledge and research experiment in which result the expert-builder receives new knowledge even if they concern the same objects, rather essentially differ: in research experiment special means and methods, for processing and the description are used

sja special means and methods, for processing and the description of the data received during its carrying out, exact enough and difficult receptions, ways of fixing, measurement and generalisation. It is caused by that all laws underlying building-technical disciplines, or are based on results of empirical researches, or are checked, prove to be true, estimated or confuted with their help. All it in the same measure concerns and expert experiment in which course the fact sheet which is carrying out subsequently a role of proofs on business is established.

Underlining applied character of activity of builders, it is necessary to notice, that this trade is among the most ancient and, certainly, the first constructions were erected instinctively, without any calculations. At early stages of formation and architecture development when building.mehanika was in embryo, more precisely, it as sciences did not exist at all, many constructions were so fragile and unstable, that the accidents connected with their collapses, were considered as the ordinary phenomenon. In the Middle Ages it has generated even superstition, following to which, before transition through the bridge certain spells and prays were said. The text of such pray of Louis Svjatogo (1214 - 1270) which he always said before making this risky action on those times up to now has remained.

Failures and success accompanied architects during all history of mankind so experience collected, generalisation and which judgement allowed to reveal the basic laws, occurring events, the phenomena and processes, the science base about building was pawned. During its development there was an isolation, a branching and division of knowledge in various directions: on a functional purpose of erected objects - industrial and civil, agricultural building and so forth; on stages of preparation, conducting building and operation of building objects - a geodesy, architecture (building and landscape), manufacture of building details and designs, technology of building manufacture, technical operation of buildings and constructions and so forth; by kinds of building designs - wooden, ferro-concrete, metal designs etc. For the decision of problems of building such scientific disciplines, as the theoretical mechanics, resistance of materials, physics of a firm body, hydraulics are allocated in independent branches. Were defined and sover -

shenstvovalis characteristics of the processes inseparably linked with operation of building objects - illumination and insoljatsii, water supply and a drainage system, ventilation and an air conditioning, heating and so forth

Effective practical application of such rather diverse knowledge would be impossible without wide experiments. Erection, reconstruction, operation and recycling of buildings, structures and constructions in the conditions of typification, unification and the serial building, in details developed and covering all parties of building activity of norms, rules and instructions in each concrete case are connected as with performance of the industrial operations provided by design documents, and with supernumerary situations, occurrence and which development is defined by variety of the factors actively shown or for the reasons independent of builders, or growing out miscalculations, appreciable errors and inadequate actions. In any case search of ways of the decision of arising problems is led, the creative beginning is realised inherent in this sort of activity, and the exit, as a rule, is - building proceeds and comes to the end. Not without reason in this trade (that, certainly, is not its exclusive line) the experience is most highly appreciated, helping to overcome the inevitable difficulties accompanying any creative process, especially when the success of business depends on that, how much harmoniously structural divisions of industrial system what any building organisation is, carry out the functions.

In this plan activity of the expert is similar to work of the modern builder. Difference consists, perhaps, only that neshtatnost the situations, inherent practically to each concrete business, is caused by the nature of process of knowledge of the expert involved with the inspector, court, the investigator for the decision of the questions demanding special knowledge in the field of building. Thus, that investigated building objects have much in common, each of them the condition of each building, a structure, a construction is in own way unique, unique, hence, as subjects of expert research are various, unique and unique. All it also forms such industrial situation which permission assumes presence at the expert of ability to original thinking, readiness for experiment, the intuition supported with theoretical knowledge and experience.

Speaking about special knowledge of the judicial expert-builder, it is necessary to concern the kind of activity standing some away from industrial (mass) manufacture, - crafts. The law of procedures provides possibility of attraction as the expert on business of the professional-handicraftsman (item 79 GPK, item 25.9 KoAP, item 9 FZ about GSED). At the same time, from the point of view of a number of authors, the mention of special knowledge in this case is excessive on the ground that it is an anachronism, return to workmanship in examination; modern examination should be based on strict nauchny data [350, with.

7]. According to J.K.Orlova, with it to agree difficultly. «Crafts exist and in our century. Certainly, the expert, investigating any craft products, applies scientific methods. But he should know and craft» [350, with. 7].

With reference to a considered sort of expert activity it can be the expert on unique kinds of a stone laying - both walls of buildings, and the heating centres (furnaces, fireplaces). The case when examination was spent by the simple stove-maker reconstructing the furnace in which the explosive [350 has been put in pawn is known, with. 7]. It is necessary to mention also experts in the wooden architecture, owning knowledge and the skills necessary for a choice, preparation, storage and wood use at erection of inhabited and auxiliary structures, including baths and the cellars which useful volume is maintained in special warmly-vlazhnostnyh conditions. To provide a normal mode of such operation it is impossible without knowledge of ways of protection of wooden designs from action of specific negative factors, features of their operation.

At the heart of knowledge of the person who are professionally engaged in that or other craft, lay, as a rule, not results of theoretical workings out, standard data and positions of the special rules developed and approved in an official order (their branch from scientific knowledge the law not casually), it is result of experience accumulated by centuries, the experiments which are passing from father to son, considering the local features displayed both on characteristics of the used material, and on parametres of the environment of existence of erected and maintained object of building. Centuries-old skills of application of unique ways and working methods are embodied in them, they have incorporated all subtleties and the nuances shown in excellent quality of the final

Product. Preservation, development and application of such knowledge demands special professional skills, talent of the handicraftsman. The nature is avaricious on talents, and original experts meet not too often. It also allows to carry considered knowledge to special, accurately to spend border between them and knowledge ordinary, everyday - widespread and deprived of that uniqueness thanks to which them carry to knowledge in the field of craft in that sense in which they are defined by the legislator.

The list of characteristics of special knowledge of the expert - of the builder resulted above is not, certainly, settling, but, taking it for a basis, it is possible to offer the definition of special knowledge of the expert-builder are professional (theoretical and applied) knowledge in the field of designing, erections, operation, reconstruction (repair) and recycling of buildings, structures, constructions and the communications, allowing within the competence to carry out researches of building objects meeting modern requirements and the territories functionally connected with them, with a view of maintenance of efficiency of legal proceedings.

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A source: Butyrin Andrey Jurevich. BUILDING-TECHNICAL EXPERT APPRAISAL In LEGAL PROCEEDINGS of Russia. The dissertation on competition of a scientific degree of the doctor of juridical science. 2005

More on topic § 4.2. Special building-technical knowledge:

  1. Chapter 2 OBJECTS JUDICIAL BUILDING-TECHNICAL EXPERT APPRAISAL And OBJECTS of EXPERT KNOWLEDGE
  2. § 1.2. A place and a role of medical knowledge in system of legal and special knowledge. Subjects of medical knowledge
  3. the teacher and the psychologist as experts. Features of pedagogical and psychological knowledge as versions of special knowledge
  4. Technological features of building and gas station exploitation in urban matrix. The analysis of requirements of the specifications and technical documentation on their housing in line of city building
  5. a role of own special knowledge of arbitrators
  6. the Chapter I SUBJECT And PROBLEMS JUDICIAL BUILDING-TECHNICAL EXPERT APPRAISAL
  7. § 1. Essence of special knowledge and classification of their use in the criminal trial
  8. 1.1 Term - unit of language and special knowledge
  9. tactical possibilities of use of special knowledge at a stage of excitation of criminal case
  10. § 2. Forms of use of special economic knowledge at investigation of illegal reception of the credit
  11. § 1. Examination and other forms of use of special knowledge in continental and Anglo-American criminal trial.
  12. § 1. Concept of special economic knowledge and objective conditionality of their use at investigation of illegal reception of the credit
  13. the Parity of judicial-expert activity and other forms and kinds of application of special knowledge
  14. 2.1. Use of special knowledge in activity of the parties and their representatives at investigation of economic crimes
  15. 2.2. Use of special knowledge in activity of the parties and their representatives on the affairs connected with ecological offences
  16. § 1. Expert testimony in court as the form of use of special knowledge in civil and arbitral procedure
  17. the Role of special knowledge in formation of a position of the lawyer on the affairs connected with road accident