Yu Lixin(Lawyer.Advisory telephone engineering construction law:13621337122

 

 

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Abstract: in the engineering cost disputes, often need to carry on the project cost judicial identification. Made in the basic principles of current our country law has not yet to the engineering in the civil litigation cost judicial appraisal shall follow the clearly defined circumstances, the relevant industry summed up in practice, from about trade-offs, legitimate, independent, impartial and avoid such basic principles. Among them, from about a principle is to guarantee the project cost judicial authentication process and the conclusion of legal, fair, efficiency is one of the important principles. Judicial identification when the related case, from about principles should be run through the whole process of judicial appraisal, the construction contract is one of the main basis for the implementation of judicial authentication, identification of human according to the relevant provisions of the construction contract project cost settlement agreed project cost judicial identification is one of the principles to be followed.

Keywords: from about principleThe project costJudicial identificationConstruction contractMatters needing attention

With the rapid development of China's real estate industry and city infrastructure construction, the construction industry is also growing, with the international financial crisis, the construction contract dispute is increasing, especially relates to the engineering cost accounts for a larger proportion of the dispute. Because of such disputes dispute object are relatively large, the original, the defendant differences of opinion on the project cost is relatively large, the judicial expertise procedure of project cost thus emerge as the times require, and its importance is also increasingly prominent. In the project cost judicial authentication in the complex, there is a very important problem, namely what is the basic principles that must be followed the project cost judicial identification? The actual decision of engineering cost is scientific, fairness and legality, also decided the case trial quality and objective. Because there is no basic principles stipulated in the current law of our country project cost judicial authentication in the civil action should follow the clear, but the judicial practice and the urgent need for identification of personnel to abide by the norms, therefore, the legal profession and the construction cost consultation industry is summarized, from about trade-offs, legitimate, independent, impartial and avoidance six basic principles in practice, these principles are the actual cost identification guide and regulate the appraiser, provide a guarantee for the appraisal conclusion objective, fair, scientific. Among them, from about basic principle of important engineering cost in judicial expertise, that is strictly in accordance with the contract identification. Great influence of construction contract for the main clause for forensic results, especially the engineering settlement terms, with a different project for the settlement agreement, the identification results are also different, etc.. But the construction contract dispute the need for the project cost judicial cases identified major clauses of the construction contract is often not very clear, very not normative, ready to accept either course, meaning not only, it is difficult to implement in the implementation of identification from about principle for identification, the identification results are difficult to obtain both parties satisfactory. In this paper, the author will through the last few years did the project cost disputes case, the emphasis is on how to sign the construction contract construction and signing contract need attention were summarized, for discussion.

Construction contract is to protect the rights and interests of the contracting parties to the legal documents in accordance with the law.Is one of the important basis for project cost settlement and judicial identification, hair, contracting parties in the construction process of the highest standards of behavior. In order to prevent the occurrence of a contract dispute, meaning not only in the identification of reduced or no basis ", in the signing of construction contracts (model version)" (GF-1999-0201) process, the following aspects need to pay special attention to.

One, the first partAgreement

1, about the employer and contractor:

Firstly, the contractor should mainly about two aspects: 1. The main qualifications, namely the construction project related procedures are complete. Example: the construction land is approved? Whether to be included in the investment plan? Planning, design is approved? Whether the bidding. The capacity that funding problems. Construction funding is already implemented or may implement etc..

Second, to the employer is to understand the content has: ① qualifications; the construction ability; the social credit; the financial situation; the project manager (Construction Division) situation. Two companies and engineering department can not contract sign contract, prevent the emergence of the construction contract is invalid.

The above content reflects the ability to perform index analysis and judgement, should be careful, foundation construction contract is signed.

2, project contracting:

Project scope of bearing, the both binding, is an important part of the contract agreement, the contract scope of project clearly can avoid: it can prevent the employer dismemberment subcontracting project, two is to clear the Contractor shall finish the content, it can reduce the disputes in the construction process, but also to avoid in the event disputes, reduce the burden of proof distribution.

3, the contract price:

The agreement "," fifth "the contract price" shall fill out, according to the Ministry of construction and 107th orders eleventh, tender the project contract price agreed by the employer and the contractor according to the notice, the bid price in the agreement. The non bidding project contract price agreed by the employer and the contractor according to the engineering budget in the agreement."

The contract price is, both sides agreed terms, requirements: first, the agreement, second to determine.
Temporary price, provisional estimate, the budget price, cannot be regarded as the contract price, and cost about not set as the contract price.

Two, the third partSpecial provisions

1, the employer and contractor work:

Firstly, both the specific time to fill out the work.

Second, both sides of the work contents and requirements should fill in the details.

The two sides agreed, not to complete the work shall compensate the other party for the losses of the scope, specific responsibilities and calculation method to write clearly, so as to avoid future disputes, do have according to, the best ratio, amount of punishment is consistent.

2, the contract price and adjustment:

Contract price and adjustment 1, fill in the special clause twenty-third clause should be in accordance with the "General Provisions" list of fixed price, adjustable price, cost plus fee in three ways, a written agreement of this paragraph.

Second, a fixed price we should define the type of fixed price. Such as: fixed price, fixed unit price, or part of the fixed price. Particular attention to: fixed price includes risk coverage as described in detail (such as: material rising risk, policy adjustment risk, schedule risk and so on), the method for calculating the risk cost agreed clear. Both sides should agree a percentage coefficient, also can use the absolute value method. Understanding differences appear to avoid the dispute in the process of.

According to the risk, beyond the scope of risk cost, should be agreed adjustment method. Both sides can agree on the supplementary agreement to adjust.

Finally, the use of adjustable price should be clear that the implementation of the valuation methods, material price execution mode (as detailed material marketing price reference object, a calculation method, what time period agreed and so on), construction material prices determined way, documents related to the execution, determine the relevant rate (float), preferential rate determination and have an impact on the future engineering settlement price should be clearly agreed.

This provision is very important, whether the future settlement, or future disputes to the project cost judicial identification, should be based on the terms, have a certain impact on project cost, bearing, the parties should pay attention to this clause.

⑸, cost plus incentive fee contract terms that use less, prone to conflicts and disputes.

3, advance payment for project:

First, fill in the agreed advance payment for project amount should be combined with the project, construction period and contracting package materials for calculation.

Second, to provide the best advance payment guarantee.

The specific time, should fill in the contract to the contractor disbursement or relatively accurate time.

Finally, should fill in agreed time and proportional to buckle project.

4, the project progress payment:

First, completing the twenty-sixth terms on the basis of "contract law" article 286th, "construction law" article eighteenth, the Ministry of construction and 107th orders fifteenth etc..

The progress of the project, allocated to the employer representative (or tracking audit unit) confirmed the finished project quantity, unit price and the corresponding valuation basis calculation.

The project schedule, payment time and method of payment to the image of progress can choose: monthly settlement, settlement after completion of subsection, a settlement (small) and other settlement way.

5, breach of contract terms:

Firstly, under sub clause 35.1, the employer shall be agreed on "General Provisions" article twenty-fourth (advance), twenty-sixth (work in progress), article thirty-third (settlement) default shall bear the liability for breach of contract.

The liability for breach of contract should be agreed, the Contractor shall bear the breach of "general terms" fourteenth paragraph second, fifteenth of the first paragraph of article 35.2 of the contract.

The, also agreed to other liability for breach of contract.

Finally, liquidated damages and shall stipulate the specific amount and the detailed calculation method, to be specific, operable, in order to prevent subsequent dispute.

6, dispute and subcontracting provisions should pay attention to:

First, fill in the thirty-seventh clause of dispute solution is the choice of arbitration, or the choice of litigation, both parties shall agree.

Second, if the choice of arbitration, the parties can choose arbitration institution. Arbitration is not limited by the level of territorial jurisdiction.

And, if you choose to litigation, should be selected with the jurisdiction of the court (litigation jurisdiction).

The contract, thirty-eighth sub projects shall be subject to the consent of the employer, the sub contractor is forbidden to re subcontract its contracted project or subcontracted to no qualification units or individuals.

7, about the supplementary provisions:

First, need to add new terms or which way, which needed to be refined, supplement or revision, in the "Supplementary Provisions" as supplement, order such as 47.1, 47.2...... Or 48, 49.......

The supplementary provisions, must conform to the state, the existing laws and regulations, the relevant written agreement be signed shall be consistent with the main contract spirit, to put an end to the "Yin contract". "Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of the Supreme People's court" article twenty-first: construction contract with a construction project shall be concluded and after filing the substantial contents of the contract (mainly refers to the quality, time limit for a project, cost etc.) inconsistent, should be based on the contract for the record as the settlement of project price according to the.

8, other matters agreed:

First, the completion of settlement documents, project price settlement that agreed: "the Jiangsu Provincial Higher People's Court on the trial of cases of disputes over construction contracts" Tenth Views: the construction contract clearly agreed the Employer receives completion settlement documents, agreed in the contract period shall not reply completion settlement documents for approval, the project price settlement in accordance with the requirements of the completion document, the people's court shall support; not expressly agreed to the construction contract, the parties in accordance with the requirements of the project price settlement completion settlement document, the people's court shall not support.

⑵, intermediary audit and national audit related project price agreed: "the Jiangsu Provincial Higher People's Court on the trial of some problems of construction contract dispute cases" thirteenth Views: the construction projects of the state fiscal investment, if the parties fail to agree in the contract on the financial department of the state or the national audit Department audit, the audit results as settlement of project cost basis, the contractor in accordance with the requirements of the contract settlement price, the people's court shall support.

⑶, relevant engineering visa single confirmed agreed: "the Jiangsu Provincial Higher People's Court on the trial of cases of disputes over construction contracts" Twelfth Views: the price of construction were identified, the contractor provide engineering visa single engineering data are defective, appraisal institutions not identified, the Contractor shall pay the construction data visa single project according to the project, the people's court shall not support, but the party has evidence to prove that the contents of the project construction data engineering visa single project has been completed except specified.

Finally, the warranty period agreed: "the Jiangsu Provincial Higher People's Court on the trial of cases of disputes over construction contracts" sixth Views: warranty period of normal use conditions agreed under the engineering construction contract is lower than the minimum duration of the laws and administrative regulations, the parties request confirmation of the contract invalid, the people the court shall support.

Construction contract is a special processing contracts, because the building itself is fixed, regional, not mobility, individuality, huge investment, restriction and strong features, so the signing of construction contracts with particular attention to the. Carefully the signing of the contract, for the benefit of both parties, both parties of contract, to participate in the construction of the. A need to pay attention to the construction contract is my executive contract project cost summary for identification in judicial identification process, the construction contract agreement relations are very important, is an important basis for the prevention of contract disputes, resolve contract disputes. The construction contract to contract the content of many, every project has its own characteristics, do not copy the previous contract, related to the content of the agreement, the better the more specific and detailed as possible, meaning only, in order to avoid future disputes caused differences of opinion, both sides can not agree, conflict. The above summary for reference in the construction contract in the signing process!

 

Yu Lixin(The lawyer) - ConstructionLegal advisory telephone:13621337122