Contract review submissions

 

The general manager and X Hainan A company:

Review of the contract spirit and the request according to the company, through the provision of your "responsibility contract book" (Draft) for review and analysis seriously, now with the provisions of the law of our country, put forward the following opinions of review.

A,A preface

Suggestions for modification: the preface is amended as: in order to fully mobilize the enthusiasm of employees, give full play to the advantage of resource integration, strengthening project management, improve work efficiency, Party A Party B to appoint the person in charge of the project, and the project by Party B for the internal contract. Equal consultations by the two sides, we reached the following agreement regarding the internal contract, both parties shall abide by the principle of good faith to be fulfilled.

The revision reasons:At present, the court finds that the contract is illegal affiliated or internal contract more difficult to grasp, according to "the Supreme People's Court on the law applicable to Construction Contract Dispute Cases Interpretation of" the provisions of Article 1: construction contract with one of the following circumstances, should according to the contract law article fifty-second (five) items provisions, invalid: the actual construction of two, no qualification to borrow the name of construction enterprise qualification; the preface statement is not standardized, allegedly linked companies suspected of contracting to internal contract name.

Two, the problem about the name of the contract

Suggestions for modification: "responsibility contract book" correction "project internal responsibility contract book".

The revision reasons: contract is generally divided into external contract and enterprise contract, the enterprise external contract, also called enterprise contracting business contract. The name of the contract is not bad, but the "responsibility" to "contract modification project internal responsibility contract book" more specific specification.

Three, the problem about the terms of the contract

In the contract, the provisions of the contract is complete, system is relatively perfect, but for the legal relation, project management and default liability provisions the provisions are too general, not conducive to concrete operation, other terms are also be amended, in addition, the contract for dispute solution and there is no provision, contract system needs further improvement. The legal basis for the draft contract terms briefly proposes the following amendments:

1Article 1: legal relationship.

Suggestions for modification:"The implementation of the contract and the legal responsibility borne by the party" to "the legal liability of contract shall be borne by Party a.." In the whole process of engineering project contract management behind plus "is the legal representative of construction enterprises in the project on behalf of the people, assume overall management responsibility for the construction project, the contract after the cause in the construction process of the legal consequences shall be borne by Party B.

The revision reasons: according to the Ministry of Construction promulgated the "construction enterprise project manager qualification management approach" the provisions of article second: "the project manager is the legal representative of the enterprise to entrust the management of the project will be fully responsible for the project construction process, is the legal representative of construction enterprise in the engineering project representative. Based on the above understanding, we can see the project manager is the one that has the corresponding qualification and project manager in project management work in a construction enterprise personnel. It is affected by construction enterprises on behalf of the legal representative of the enterprise engaged in project management work. Party B shall sign the contract after the cause in the construction process of the legal consequences.

2Article second: scope of the contract, and the contract.

Amendment 1: the provisions is amended as: Party B's responsibility scope for the party and construction signed the "construction contract" and the supplementary agreement and other documents of all responsibility, right, lee.

Recommendation 2: increase the contract: first, contract, package materials, package, bag, bag of quality safety civilized construction, package project debt, package of general contracting liability for breach of contract, project financing. Second, according to a fixed proportion of pay management fees, self employed, self financing, self management, self financing.

The revision reasons: the provisions are too simple, nor comprehensive.

Article third: contract period.

Suggestions for modificationTo modify the contract: the beginning and ending time: "from the date of the conclusion of the contract to both sides according to the contract to complete the project on the rights and duties check.

The revision reasonsContract period: only the project contract period, is not conducive to solve the prior contract and project after the termination of the contract the project settlement of legal responsibility.

Article fourth: the contract price

Suggestions for modification: increase in paragraph second: "stay behind the engineering settlement, duotuishaobu." Fourth "B labor income" to "labour return income".

The revision reasons: increase in paragraph second: "stay behind the engineering settlement, duotuishaobu. The provisions of the second paragraph of more complete, the principle of fairness is reflected in the contract also helps to solve the engineering settlement after the refund of the amount of management fees. Section fourth of the revised "B labor income" to "labour return income". More in line with the laws and regulations. According to the labor remuneration of labor contractor and the analysis of the "labor contract law" of the internal contract form is different, as a contractor, Party B's labor income of both production and operation income and labor remuneration properties.

Article fifth: Contract Management

Amendment 1Increase the number of personnel management. Party A hereby appoints Party B as the person in charge of the project, the project responsible person responsible for the formation of the project department. Party A shall have the right to members of the project Department of supervision and management. All construction personnel from B to recruitment, staff wages shall be borne by Party B. Party B shall guarantee the wages and benefits staff paid on time, not in arrears. Arrears of wages caused by the dispute, shall be borne by Party B.

Amendment 2: project management. The first amendment: on the project management, Party B shall perform their duties within the scope authorized by Party A in writing, strictly follow the "norms" of construction project management, also should be in accordance with the provisions of state laws, regulations and relevant technical standards. To ensure the completion of the project contract requirements. Comprehensive management seriously, responsible for all the work of the project construction, production safety, in accordance with the law, in accordance with the rules of construction. Party B beyond Party A authorizes or violation of the laws and regulations, are engaged in all activities are B personal behavior, shall have the right to take some legal consequences and is responsible for the losses caused thereby to the owner;

2, the contract of the project duration, project quality, safety and civilized construction, shall be required to achieve the construction and relevant management requirements, do not meet the requirements of the project, must be promptly corrected, to meet the relevant requirements, and bear the cost of reform;

3, Party B shall ensure the safety protection, civilized construction measures fee dedicated, lists the security protection, civilized construction measures for project cost list separately in the financial management.

4, Party B shall strictly in accordance with the construction contract signed by Party A and the construction of party agreed to fulfill obligations, the exercise of rights, avoid default behavior;

5, the original 2, 3 items retained.

Amendment four: increase the contract management. Party B shall establish, perfect contract management system, Party B in the name of Project Manager Department sign any contract, including but not limited to pledge, guarantee and so on, are required by Party A for examination and approval and for the record, can sign. Regardless of whether the party agreed to sign, any economic, legal liability as a place, by Party B itself, causing losses to Party A, Party B shall be responsible for compensation;

Recommended reason: [2004] "construction of migrant workers wages paid Interim Measures" the ninth stipulation: "the project general contracting enterprises to deal with the labor subcontracting enterprises to pay wages to supervise, urge them to pay the wages of migrant workers." Circular of the Ministry of construction in 2005 seventh [] No. 89 "cost of construction engineering safety protection, civilized construction measures and use management regulations" provisions: "in the implementation of project contracting, general contracting unit according to the engineering subcontract to other units, the general contractor and subcontractor unit shall clarify the safety protection, in the sub contract measures civilization construction management by the general contracting unit. The safety protection, civilized construction measures by the sub units, sub units proposed by special security measures and construction plan, approved by the general contracting unit in time to pay the required fee." Article eleventh stipulates: "the construction unit shall ensure the safety protection, civilized construction of special measures fund, lists the security protection, civilized construction measures for project cost list separately in the financial management." According to the above rules and "the code of construction project management", "construction quality management regulations" of the relevant provisions of the revised contract management project management, and subdivided into four categories of detailed regulations will reduce the risk of contract.

Article sixth: the responsibility of safety and quality.

Suggestions for modification:The first paragraph is "the implementation of the project manager responsibility system for life" to "the implementation of the project manager responsibility system and quality lifelong responsibility system". "Behind the increase in security, quality of person of the first responsibility" contractors on the project: "Party B must strengthen safety management, to ensure the safety of construction, abide by the safety regulations, shall force operations. The quality of the project construction units in accordance with the quality requirements, the quality inspection unit acceptance shall prevail, "quality accident will" such as the occurrence of major security, will pursue legal responsibilities according to law and the party responsible for compensation for all the economic loss caused by "changed to" construction safety, quality during all by Party B shall bear all the responsibility, and bear all the economic, legal liability arising therefrom."

The second paragraph is added: the party not regularly to Party B for safety, quality inspection. During the inspection, Party B shall cooperate with Party A in the inspection work, at the same time to accept and actively carry out rectification plan proposed by Party A.

The revision reasons:In the "norms" of construction project management general provisions specified in the construction project management to implement the responsibility system of project manager in Hainan ", the government investment project legal person responsibility system management approach" in article Sixth third mentioned the project legal person that project design is not in conformity with the engineering quality standards or quality requirements agreed in the contract of construction project quality lifelong responsibility system, project legal representative shall assume overall responsibility for project quality.

Article seventh: engineering insurance

Suggestions for modification:The mandatory provisions of engineering insurance to pay in accordance with the "construction law of the people's Republic of China, the law is not much. Suggested adding a: B the mandatory purchase of "engineering quality insurance".

The revision reasons: according to the "PRC construction law," "the people's Republic of China Insurance Law" and "construction quality management regulations" provisions, the Ministry of construction Chinese, China Insurance Regulatory Commission in 2005 jointly issued the "work on the construction project quality insurance advice", there are insurance project quality assurance insurance provisions the insurance, don't is mainly provided risk protection appears after the completion of the project within a certain period of the main structural problems and leakage problems, suggest to buy.

Article eighth: the project investment

According to the "PRC Construction Law", "construction quality management regulations", "construction project price settlement" and "Interim Measures for financial management of basic construction regulations" provisions of the Ministry of construction, Ministry of finance to build quality [2005] No. 7 "construction project quality margin management Interim Measures" to inform the provisions of article twelfth implementation of the project: general contracting of construction project, the general contractor and subcontractors on the margin of the rights and obligations of the agreement, according to the rights and obligations and the contractor in the measures of corresponding provisions. There is nothing wrong with the provisions.

Ninth print management.

Suggestions: "print" correction "".

The revision reasonsThis is the text: problems, not the legal issues, the modified objective is to standardize, avoid ambiguity.

Tenth: liability for breach of contract

Suggestions for modification:Add the following clause: 1, in violation of the above agreement, causes the first party to pay staff wages, Party A shall have the right to recover the Party B, and Party B shall indemnify Party A double penalty. 2, in the "construction safety and quality liability according to Article sixth of this contract execution" add "behind the safety accident occurs, Party B shall actively compensation, if not as soon as possible compensation, Party A shall have the right to deduct directly from Party B account, and shall pay the victim. If the party responsible, Party A shall have the right to claim for breach of Party B, at the same time.

3, Party A shall pay to Party B to pay money, but have the right to deduct the management fee and tax. Party a delay in payment, deferred payment per day, with 2/10000 of the amount of fines.

4, both sides should be honest and trustworthy, the performance of this agreement, shall not harm their interests. If there is damage, to compensate the other party for the losses, but the amount of damages as a default payment.

The revision reasons: default liability provisions are too general, not conducive to the actual operation, shall be itemized regulations breach responsibility. "Contract law of the people's Republic of China" 107th stipulates: "a party is unable to perform the contract or fails to fulfill the contract obligations does not comply with the contract, shall be liable to continue to perform its obligations, to take remedial measures, or to compensate for the losses and liability for breach of contract". Specified in the first paragraph of article 114th: "the parties may agree that one party breach shall pay a certain amount of liquidated damages under the default to the other party, also can agree on a method for the calculation of damages for the loss resulting from." In accordance with the above provisions, in order to better safeguard the party's contract rights, in order to clear the parties liability for breach of contract, in order to guarantee to a party breaches the contract in time to undo the damage, suggest that you specify the default liability in contract, breach of contract at the same time difference calculation method of gold or method.

Eleven: Dispute Resolution

Suggestions for modification"Clause: increase the dispute" in the contract.

To perform this contract dispute, settled through consultation by the parties. Consultation fails, both parties agree to choose his way.

1, to the signing of the contract to the court.

2, to the XXX Arbitration Commission Arbitration (arbitration institutions agreed upon by both parties in the contract, no written arbitration agreement is not reached afterwards, to the people's court).

The revision reasons: dispute resolution though not the necessary contract terms, but clearly stipulated in the contract dispute is beneficial to both sides to quickly resolve contract disputes.

Article twelve: other provisions

Suggestions for modificationThe fourth section: changed to two copies of this agreement, Party A Party A, Party B hold one copy, which have the equal legal effect. The second paragraph revised to "this Agreement" since the signature of the termination of the contract itself, "".

The revision reasons: in practice, the contract by both sides of a split, contract copies too much, is not conducive to the contract of confidentiality.

The above views, only for reference!

 

Hainan Chang Yu law firm

Lawyer: Li Yaru

Two 0 0 years in May 26th