Answer the Beijing Higher People's Court on the construction contract dispute cases a number of difficult problems

(2012Years8Month6Day Beijing high method[2012]245No.)

 

A, the construction contract effectiveness

　　1Effect of the construction contract, without obtaining the approval of the construction of how to identify?

The employer will have not yet obtained the construction land planning permits, construction planning permits and other administrative examination and approval procedures of the project, the construction contract signed with the contractor is invalid. But in the court of first instance before the end of the debate on the employer to obtain the corresponding formalities of examination and approval or approved by the competent department of construction, the contract shall be deemed valid.

The employer fails to obtain construction permits, shall not affect the validity of the construction contract.

　　2, "the Supreme People's Court on the construction contract dispute cases the interpretation of applicable law" (hereinafter referred to as the "interpretation" of Article 1) (two) provision "no qualification of the actual construction people borrow a qualified construction enterprises in the name of" contract construction (i.e. "anchored") including what situations?

Any of the following circumstances, should be identified as "explain" the provisions of the "link" behavior:

(1) don't have engaged in the construction activities of the main qualified individual, partnership organization or enterprise to have the name of the building construction enterprises engaged in construction activities Qualification of the contracted project;

(2The lower level of qualification) construction enterprises in the name of construction enterprise qualification grade high contract engineering;

(3The name) construction enterprises in construction enterprises do not have the construction general contracting qualification with the construction general contracting qualification of the contracted project;

(4) construction enterprises qualified through the nominal joint venture, cooperation, internal contract and other ways in permits others to undertake a project in the name of the enterprise.

　　3How to identify whether it belongs to, construction projects must be tender?

"Interpretation" of Article 1 (three) the provision "to tender" construction project that should be based on the "PRC law" the provisions of article third, "the people's Republic of China Law on Tendering and bidding regulations" and the former State Development Planning Commission "projects for the scope and scale of standard" the relevant provisions to be determined. Legal, administrative regulations contains new provisions, apply to the new regulations.

　　4Validity of labor contract, how to identify?

At the same time, in accordance with the following situations, the signing of labor contract effective:

(1) the labor service contractor to obtain the corresponding labor subcontracting enterprises qualification standards;

(2) range of subcontracting work is the construction services operations (including carpentry, masonry, plastering, stone production, paint, steel, concrete, scaffolding, formwork, welding, plumbing, wiring, Ban Jin);

(3Contracting for services) and small machinery and accessories.

Contract the labor service contractor responsible for large machinery, turnover materials leasing and main materials, equipment procurement and project related content, does not belong to the subcontractor.

　　5How to identify the internal contracting, building enterprise behavior?

The construction contract the contractor will be handed over to its subordinate branches or registered project managers and other employees personal construction contract all or part of the contracted project, the contractor for the management of engineering construction process and quality, external to undertake the construction of rights and obligations under the contract, belongs to the enterprise interior contract behavior; the employer to internal contract lack of construction qualification on the grounds that the construction contract is invalid, does not support.

　　6Effect of small farmers, construction and low rise residential construction contract, family residential interior decoration decoration contract how to identify?

Construction contracts were signed to build small construction or two layer below (including two) residential farmers, or family residential interior decoration, the parties only to construction people lack the corresponding qualification for, advocate the contract invalid, generally did not support. For indeed in violation of the provisions of the enterprise performance management contract projects, may suggest the competent administrative departments to handle.

The contract has an agreement on quality standards, in accordance with the agreement, no agreement, in accordance with the standard or the particular standard consistent with the purpose of the contract to be determined. There are other parties to the dispute, the relevant principle of content can refer to this solution treatment.

 

Determination and payment of two, the cost of the construction project

　　7The parties in the litigation, ago has the project price settlement agreement, a request for re settlement, how to deal with?

The parties in the litigation ago has the project price settlement agreement, a request in the procedure of new settlement, does not support, but the settlement agreement by the court or the arbitration institution recognized as invalid or revocable except.

Construction contract is invalid, but the project after the completion of acceptance, a party shall be invalid request that the settlement agreement is invalid in the construction contract, shall not support.

　　8The project manager, the contractor in the contract validity applied behavior in the process of how to identify?

The construction contract, the Contractor's project manager to the contractor name signed the settlement report, visa documents confirmed, the project department chapter or charge project, accept the employer for material behavior, should in principle be recognized as official act or acts of agency by estoppel, binding on the contractor, but the construction contract or otherwise agreed by the contracting party has evidence to prove that the relative party knows or should know that the project manager does not have except the agent right.

　　9The effect of staff, how to identify visa confirmation?

The parties in the construction contract has the right to the engineering quantity and price change and other materials for the visa confirmed that there are clear agreement, in accordance with the contract, with the exception of the legal representative, other officials for visa confirmation is not binding on the parties, but opposite party has reason to believe that the visa officer except for proxy; no agreement or the agreement is not clear, the staff for the visa confirmation of their working behavior, binding on the parties, but the party has evidence to prove that the relative party knows or should know that the visa officer unless there is no agency.

　　10, engineering supervision in the visa documents signed effect how?

Engineering supervision signed visa documents in the supervision process, involving the project amount, duration and the quality of the project and other facts, principles of the contract binding, relates to the engineering price change and economic decision making, in principle is not binding on the developer, but otherwise authorized the construction contract to supervisors agreed otherwise.

　　11Fixed price contract, the parties to the project, design change request on the grounds of adjusting the project cost, how to deal with?

The construction contract project cost fixed price settlement, in the actual implementation process, the actual engineering quantity increase or decrease caused by engineering design changes, the parties should be adjusted to the project cost, should be strictly controlled, the contract agreed to the project price adjustment, in accordance with the agreement; no agreement or the agreement is not clear, can refer to the standards stipulated in the contract on the quantities or part shall be settled separately, not according to the agreed standard settlement, can the valuation method according to construction construction administrative departments issued or valuation standard settlement.

That project price adjustment shall be agreed upon in the contract parties to the specific construction range, the actual quantities or reason, such as the number of facts bear the burden of proof.

　　12, fixed price contract, the main building materials price changes, the parties should be adjusted to the project cost, how to deal with?

The construction contract project cost fixed price settle accounts, in the actual implementation process, the impact of steel, wood, cement, concrete and so on engineering cost major building materials prices larger changes, beyond the range of normal market risk, the contract agreed on building materials price risk burden, in accordance with the principle of the contract treatment; no agreement or the agreement is not clear, the parties request to adjust the project price, but outside of the scope and magnitude of market risk to support; the specific amount can entrust appraisal institutions refer to construction construction administrative departments for processing building materials price issues to be determined.

Because one party causes delay or time delay the supply of building materials, building materials during the period of a post part of the project, shall be borne by the fault side.

　　13Fixed price contract, the contractor is not complete, engineering construction, how to determine the project cost?

The construction contract project cost fixed price settlement, the Contractor fails to complete the construction, the requirements of the employer payment, after review the contractor has construction engineering quality, can use "according to the proportion of conversion" approach, namely the identification mechanism in the same fee standards are calculated respectively. After the total price of the price and the engineering contract project, comparing the calculated coefficient, the employer to cope with the works of fixed price multiplied by the coefficient with the contract.

The party has been controversial works quantities, shall be determined according to the meeting minutes, the two sides signed the withdrawal handover handover records and supervision materials, the subsequent construction documents; cannot be determined, should be removed for reasons not engineering field the completion of the transfer and engineering failed to factors such as the reasonable distribution of the burden of proof according to the.

　　14"Interpretation", the contractor according to provisions of article twentieth of the request processing completion settlement documents according to the settlement price,?

The construction contract, the employer shall give a reply within a certain period in the completion of the settlement received documents submitted by the contractor, but not explicitly agreed if no reply is deemed acceptance of completion settlement documents, contractor according to "explain" the provisions of article twentieth in accordance with the requirements of the completion of settlement documents of project price settlement, not support.

The construction contract does not clearly stipulated, the contractor only by the former Ministry of construction "construction contract pricing and contract management measures" provisions of article sixteenth, or "construction contract (model version)" (GF-1999-0201General Provisions Article)33.3The agreement as the basis, in accordance with the requirements of completion settlement documents of project price settlement, not support.

　　15"Black and white contract", how to balance the project cost?

The provisions of the laws, administrative rules and regulations must be tender for construction engineering, construction engineering or not specified must be subject to tender according to law, but through the bidding process and for the record, the construction contract and record the actual performance of the substantial contents of the contract are inconsistent, should take the filing of the contract as the settlement of project cost basis.

Construction project not to tender stipulated by laws, administrative regulations, the actual or not according to the law of bidding, the construction contract signed by the construction administrative department of the local record, the contract and the actual performance of the contract content inconsistent, should be based on the actual performance of the contract as a settlement the project cost basis.

Construction contract contract with the party filing of actual performance are due to the violation of mandatory rules of law, administrative regulations is invalid, contract settlement project price can refer to the actual performance of the.

　　16"Black and white contract", how to identify the substantive content change?

The bidding parties signed separately in the same project scope change under project price, pricing, construction period, quality standard of the result of the protocol, should be identified as "explain" the substantive content of the provisions of article twenty-first of the change. The winning bidder made to significantly higher than the market price to buy real estate, construction of housing facilities, free construction profits, to construction party donation commitment, shall also be deemed substantive content of contract to change.

The record contract actual implementation process, engineering for the design changes, planning adjustment and other objective reasons, engineering quantity or quality standards or the construction time changes, the supplemental agreement, meeting minutes and other written documents on the substantive content of the contract are modified and supplemented signing parties, belongs to the normal contract change, should be based on the file as the right and duty of the parties on the basis of.

　　17, invalid contract of construction project cost to determine how?

Construction contract is invalid, but the project final acceptance, according to "any party concerned to explain" the provisions of article second according to the requirements of the contract agreed to pay the project discount compensation, shall support. The contractor to the employer by the people's Bank of China loan interest payments owed project payment of interest, and should be supported. The employer to void the contract on grounds for profit with engineering discount compensation, not support.

　　18"Explain", "the actual construction people" how to determine the scope?

"Interpretation" in the "actual construction people" refers to the invalid construction contract the contractor, who is illegal construction engineering work packages and the labor contract of the contractor, the contractor, to borrow qualification (affiliated construction); construction by the number of contracts, the actual construction shall is the final actual investment funds, materials and labor are legal, engineering construction of non corporate enterprises, individual partnership, contractor first civil subject. The court shall determine that the strict standards of actual construction, not free to expand the scope of "interpretation" in the second paragraph twenty-sixth. For does not belong to the scope of the parties pursuant to the provisions of the employer for the defendant to claim owed project payment, shall not accept, has been accepted, it shall reject it.

Construction workers owed wages or recourse labor remuneration, in accordance with the provisions of relevant laws, regulations and the payment of wages and the "Beijing Municipal Higher People's court according to the law the rapid processing of building in the field of migrant workers wage case opinion" properly handle.

　　19The actual construction, illegal subcontracting, subcontracting claims owed works, how to determine the subject of litigation? The employer's liability and how to bear?

The actual construction of the illegal subcontracting, subcontracting someone accused demand payment of the project, the court shall not in accordance with the terms of reference of additional contract for the co defendant; the actual construction to the employer for the defendant to demand the payment of the project, shall add illegal sub contractors or subcontractors as a co defendant in litigation, the employer in the arrears of illegal sub contractors or subcontractors shall bear joint and several liability within the scope of the project. The employer fails to the owed project is put forward for the defense, should have to bear the burden of proof.

　　20Do not have the qualifications, affiliated construction claim owed works, how to deal with? It will project subcontracting, subcontracting to others construction, construction claim owed works, how to deal with?

The actual construction people not qualified (affiliated construction) affiliated construction enterprise qualification (ship), and in the name of the enterprise signed a construction contract, the affiliated person fails to claim the project's construction, it may in its own name, Sue ask the employer to pay for projects, the court shall be appended be hanged man-made litigants, the employer to pay the project scope in less assume payment responsibility. Because of carrying out the construction contract debt, the affiliated person with the affiliated construction shall bear joint and several liability.

Affiliated person after contracting a project, to be linked to the name to subcontract the project, construction subcontracting to others, the construction claim owed project payment, in accordance with the "problems of Beijing Higher People's Court of civil and commercial case to answer five" forty-seventh regulations.

　　21The employer's claims, it has to legitimate subcontractors, pay the actual construction project shall be deducted, how to deal with?

The contractor according to the construction contract requirements of the employer payment of works, the employer will have to claim its legitimate subcontractors, pay the actual construction project shall be deducted, shall not be supported, except otherwise agreed by the parties, the effective judgment, arbitral award shall be confirmed or the employer has evidence to prove that except for its justification to legal subcontractors, pay for the actual construction of.

　　22Effect of stipulated, chief contractor from the employer's payment to the subcontractor payment terms in the sub contract to that?

The sub contract agreed to be chief contractor for settlement and the employer payment to the construction contractor and the employer, chief contractor to the subcontractor for engineering, the agreement is valid. Because the chief contractor to delay the settlement or delayed in exercising its creditor's right due to the subcontractor can not be timely made project, contractor requirements chief contractor payment owed project payment, shall support. Chief contractor shall bear the burden of proof for the settlement between the employer and the employer payment of works of fact.

　　23The employer to a project without approval, or the Contractor fails to hand over the project completion data refused to pay for projects, how to deal with?

The construction contract agreed upon project completion acceptance after payment, the Employer receives the contractor to submit the project completion and acceptance of information, organization fails to completion and acceptance of the time limit stipulated in the contract or within a reasonable time limit without justified reasons, the project without approval by refusing to pay the construction proceeds, does not support.

The employer to the Contractor fails to hand over completed project data refused to pay for the project, as an excuse not to support, unless otherwise stipulated in the contract.

 

Determination of three, construction period and quality responsibility

　　24The parties agreed on the project, clearing and claim, how to deal with?

The settlement agreement, the contractor according to demand payment of the project agreement, the employer due to the contractor due to quality problems or overdue completion by engineering, requirements of refusal, reduced pay project payment or compensation for losses, but shall not be supported, except otherwise agreed by the settlement agreement. The parties signed a settlement agreement does not affect the contractor according to law, administrative regulations or agreed to assume responsibility for the quality of warranty.

The settlement agreement, the contractor on the ground because the employer caused delays, request for compensation for the losses, due to not support, but the settlement agreement, except as otherwise agreed.

　　25Project completion date, how to identify?

The construction contract actual start date, generally by the notice to commence the start time as the basis; because the employer caused started at the time of notification of commencement conditions do not have, have to determine the conditions to start time start date; due to contractor Fang Yuanyin led the actual start time delay in notice to commence, as time the commencement date; the contractor started in the notice issued before the actual construction, the actual start time start date; neither the notice to commence no other evidence to prove the actual start date, agreed on in the construction contract for the start time start date.

The employer, contractor, design and supervision units square confirmed the signing of the time in the project completion acceptance form, can be regarded as the "interpretation" of article fourteenth (a) provision completion date, but the parties have sufficient evidence to prove otherwise.

　　26Extended time limit for a project, how to identify?

Because the employer in the project payment, progress payment, delay to provide construction drawings, site and raw materials, design changes and other behavior led to delays in the project, the contract explicitly agreed by the employer shall be postponed time visa confirmation, review by the contractor has not achieved period extended visa confirmation, but the burden of proof for the period specified in the contract within the employer advocated extended time limit for a project, or the behavior of the people really seriously affect the construction schedule, the contractor will be the corresponding period claims, can be supported.

　　27Inconsistent quality, standard construction contract engineering and national mandatory standard is effective?

The quality standard of the construction contract of construction project contract is lower than the standard quality of mandatory safety prescribed by the State Engineering, the contract is invalid; contract agreed quality standards higher than the mandatory standards prescribed by the state, shall determine the contract.

　　28The employer's claims, the construction quality does not conform to the stipulations of the contract, should according to the counterclaim or defense?

The contractor for the project, the developer claims, the construction quality does not conform to the contract and causes damage, it shall comply with the following conditions respectively:

(1) construction project has been completed acceptance, or even without a completed acceptance, but the developer has been actually used, project quality problems existing in general should belong to the scope of the project quality warranty, the grounds for refusal to pay or reduction project, the quality of the defense not to support, but because the contractor causes except for foundation engineering or quality of the main structure of the unqualified; the employer a counterclaim or prosecuted to require the contractor to assume responsibility for the warranty repair costs or compensation for the actual loss, treatment according to the relevant provisions of construction engineering warranty.

(2The project has not yet been completed acceptance) and has not delivered for use, the employer to project quality does not meet the contract request on the grounds of refusal or less pay the project, according to defense; the employer requires the contractor to pay liquidated damages or compensation for reasonable costs of repair, rework or alteration of the loss, should inform the counterclaim or otherwise the prosecution.

(3) the employer to require the contractor to compensate for the construction quality does not conform to the contract and any other property or personal injury, should inform the counterclaim or be prosecuted.

　　29The quality defects, how to identify the contractor of the construction project has fault?

The contractor has one of the following circumstances, shall be determined on the construction engineering quality defects exist fault:

(1Knowing that the employer) the contractor to provide design drawings, instructions have questions or problems found in the process of construction, and did not have time to put forward opinions and suggestions and continued construction;

(2The contractor to the employer) supplied or specified purchase building materials, construction parts, equipment, no need for inspection or inspection unqualified still use;

(3The standard for quality, safety) put forward by the employer in violation of laws and regulations and the construction, reduce project quality requirements, the Contractor shall not refuse and construction.

The case, due to the existence of defects in engineering quality caused third people loss, by the employer and the Contractor shall bear joint and several liability.

　　30, the employer to project quality does not meet the requirements of the contract on the grounds, the Contractor shall bear the repair costs, how to deal with?

Reasons for the contractor in the construction quality does not conform to the contract, the contractor refuses to repair, within a reasonable time limit cannot be repaired or the employer has justified reasons for refusing the contractor to repair, the employer entrust others require the contractor to undertake reasonable repair after the repair costs, should be to support.

The employer fails to notify the contractor or refused by the contractor to repair without justification, and entrust others to repair, the contractor of the repair costs to repair itself by the reasonable expenses needed to limit.

　　31Engineering, construction contract agreed warranty period is less than the statutory minimum time limit provisions effective? The contractor for the return of the quality warranty gold, how to deal with?

The minimum period agreed under the conditions of normal use project warranty period below the legal, administrative regulations in construction contract, the contract is invalid.

The project quality warranty gold return period agreed, in accordance with the agreement, but does not affect the Contractor shall undertake the responsibility for the quality of warranty in the warranty period; no agreement or the agreement is not clear, the project quality warranty period for the completion of the project the gold return within twenty-four months of the date of acceptance.

Construction contract is invalid, but the project final acceptance and delivery of the employer's use, the Contractor shall, according to the provisions of laws and administrative regulations, undertake the responsibility of quality warranty. If the employer requires to refer to the contract to detain a certain proportion of the project as the project quality warranty gold, shall support.

 

Four, construction cost evaluation

　　32Application of the parties concerned, to identify the project cost, how to deal with?

The parties to the dispute, neither reached a settlement agreement, also cannot take other methods to determine the project, the court may according to the construction cost evaluation institutions entrusted with the parties apply for judicial authentication qualification identification of project cost; the parties do not apply for accreditation, court shall clarify the elucidation, bears the burden of proof on the identification of a party are not matters for identification, should bear the adverse consequences if it fails to do so.

The identification process, a party within the prescribed time to submit identification of material or refuses to cooperate with without justifiable reasons, led to the identification can not be, the court interpretation of adverse consequences after its still refuses to submit or refusing to cooperate, should bear the adverse consequences if it fails to do so.

　　33The effect before the lawsuit, jointly commissioned by the identification of how to identify?

The litigant has been jointly selected authentication institution with corresponding qualifications to make the appraisal conclusion corresponding to the construction project, to identify a party requests in litigation, are generally not permitted, but there is evidence that the appraisal conclusion has the "Supreme People's Court Regulations on civil litigation evidence" of the provisions of the first paragraph except twenty-seventh.

　　34Project cost identification, court in matters authority decided to include?

Controversial parties, the construction contract settlement, visa file authenticity and validity problem, by the courts to review and make the determination. The court may require the accreditation body identification conclusions are made according to the different settlement raised by the party in the identification, or to the open part of the engineering quantity and price authentication separately for the trial, verification, can also be on controversial issues to make clear conclusions and start the identification procedures.

 

Five, bear civil liability

　　35The employer refused, clearing works without any justifiable reason, not how to determine the starting point for construction loan interest?

The employer in the construction contract audit settlement period refuses settlement or deliberate delay settlement, in the audit after the expiration of the time limit nor payment, the contractor to the Employer upon expiration of the period specified in the contract from the audit settlement of outstanding construction loan interest calculation, can be supported, but is otherwise stipulated in the contract except.

　　36At the same time, the contractor claim overdue payment of liquidated damages and interest, and how to deal with?

The construction contract clearly agreed the employer fails to pay the project, the contractor may claim the late payment penalty and interest, in accordance with the contract, the employer should contract agreed liquidated damages and interest and much higher than the actual loss to request to be reduced, in accordance with the "interpretation of the Supreme People's court on the application of the" people's Republic of China Contract Law of China, some problems (two) "provisions of article twenty-ninth of the processing; no agreement or the agreement is not clear, the Contractor's claims, the general should not simultaneously support, but the Contractor shall have the evidence contract agreed liquidated damages or interest alone is not sufficient to compensate for the actual loss except.

　　37The construction contract nature, imposed a "fine" the terms of the contract breach to that?

The construction contract the contractor has time delay, quality defects, contracts or illegal subcontracting, breach of contract, the employer may impose a fine on the contractor, the agreement can be seen as the parties in the contract agreed liquidated damages provisions, should be based on "of the people's Republic of China Contract Law" and the provisions of article 114th shall be processing.

　　38The contractor to the employer, to delay the settlement or owed project payment refuse delivery of the project, how to deal with? The resulting loss how to bear?

The completion of the project acceptance, the contractor to the employer to delay the settlement or owed project payment refuse delivery of the project, the general does not support, but the construction contract otherwise expressly agreed otherwise.

The contractor according to contract to delivery of the project, but it refused to deliver engineering value obviously super starting contractors owed project payment, or owed project payment amount is not big, and part of the project is not delivered will affect the whole project, to the employer for the actual loss, the parties should be based on the degree of fault to share.

　　39The cooperative development of real estate, project, contractor claims owed works, how to deal with?

Legal person, more than two other organizations or individuals to cooperate in the development of real estate projects, including cooperation in the party in his own name and the contractor signed a construction contract, the Contractor shall bear joint and several liability to the other partners owed project payment, shall support.

The contractor only with the construction contract the employer for the defendants recourse project, should be in accordance with the contractor sued the defendant.

40The lessee, after the building in its own name signed construction contract, the Contractor shall how to claim?

The employer (the lessee) signed a lease contract to lease the building and the building owner, in its own name signed construction contract, the Contractor shall claim the project, the construction contract the employer for the plaintiff.

The employer One's whereabouts is a mystery. or loss of ability to pay, and between the building owner and contractor of the lease contract has been terminated, the contractor in building ownership as the defendant claims rights, building owners in the actual benefit shall be liable for compensation within.

 

 

[lawyer Wang Shen, Tel: 13501251190, Beijing City Xuande Law Firm lawyer, founding partner. ]