Guangdong Provincial Higher People's court

For instanceScience and engineering construction contractDirective opinion of disputes

Guangdong high method [2011]37No.

The two share in July 26th one one

 

In order to correctly judge the construction contract dispute case, according to the "PRC Contract Law", the Supreme People's court "on hearing construction contract dispute cases the interpretation of applicable law", the Supreme People's court "on the civil evidence regulations" and other relevant provisions, combine me the province is actual trial, the enactment of this opinion.

One, the project debt disputes, contract with the construction quality does not conform to the contract on the grounds that the payment conditions are not satisfied, can be used as a defense processing.

The employer to construction quality does not conform to the contract on the grounds, request the contractor to undertake responsibility of breach of contract, it shall file a counterclaim.

Two, the Supreme People's court "on hearing construction contract dispute cases the interpretation of applicable law" stipulates that the twenty-first "substantive disagreement" mainly refers to the engineering valuation standards, quality standards, the larger gap between the main clause. The construction process, the parties to the contract supplemental agreement form normal engineering quantity increase or decrease, design change etc, are generally not recognized as "substantive content is not consistent".

Three,After the bidding process entered into the construction contract and the parties shall conclude"The substantive content inconsistent"Construction contract is recognized as invalid, contract settlement price according to the actual performance of the project.

Four, the construction contract agreed to the provisions of the government related documents as the settlement standard and basis, not binding because the file has been modified, revoked or failure and deny the relevant clauses of the contract. The parties concerned according to the provisions of the contract settlement price of the project, should be supported, but with the "Supreme People's Court on the application<Contract law of the people's Republic of China>A number of issues of interpretation (two) "the provisions of article twenty-sixth except.

Five, the construction contract agreed to a fixed price projects, such as construction projects have not yet completed, the parties to the completed project cost of the dispute, dispute may be part of the project cost identification, fixed price but should take the construction contract as the basis, calculate the project according to the completed projects accounted for the contract of construction the proportion of the range. If a Party advocated the quota standard as the cost identification basis, not to support.

Six, the parties to the litigation or litigation jointly selected authentication institution with corresponding qualifications to carry out cost identification of construction project and the issuance of identification conclusion, one party requests to re identification, does not support, but there is evidence that the appraisal conclusion has the Supreme People's court "several regulations about the civil action evidence" the provisions of the first paragraph twenty-seventh except in cases of.

Seven, the people's court entrust the judicial authentication institutions project cost identification, identification of materials submitted by the parties shall be to conduct cross examination, and the identification of materials and examination opinions to identification mechanism. The people's court shall not cross examination and audit appraisal materials that work completed by the authentication institutions.

Identification of agencies issued identification report and finalized, the people's court shall organize the quality certificate.

Eight, the Contractor's request the employer payment, the developer claims to have to pay the actual construction project are deducted, and should be supported, but the developer without the contractor agrees to pay the actual construction of project, except for its deserved beyond the outside part of the.

Nine, the construction contract clearly agreed the Employer receives completion settlement documents, fails to reply within the agreed time limit, as recognized by the completion of settlement documents, in accordance with the agreement. Construction contract is not agreed or the agreement is unclear, the Contractor's request to the Ministry of construction "construction project contract pricing and contract management approach" the provisions of article sixteenth, or on the basis of the Ministry of construction of the project construction contract format text (1999Edition) General Provisions Article33Article3Section of the agreement, shall not support.

Ten, the expiration of the time limit stipulated in the contract audit settlement after completion of settlement, documents submitted by the contractor is not complete refused settlement, the contractor requests from the expiration of term audit settlement agreed in the contract of engineering interest, should be supported, but the construction project construction contract stipulates otherwise.

Eleven, the construction contract the breach of contract or excessively higher than the losses caused, by the application of the parties concerned, the people's court according to the "second clause of the contract law of the people's Republic of China" in 114th and "the Supreme People's Court on the application of<Contract law of the people's Republic of China>A number of issues of interpretation (two) "the provisions of article twenty-eighth, article twenty-ninth shall be adjusted.

The employer does not meet to the contractor for the project, the loss caused by, if the employer cannot prove the Contractor's actual loss, can be presumed to outstanding works as the base, according to the provisions of the people's Bank of Chinese financial institutions during the same period the loan rate of interest.

Give the employer caused by the contractor overdue completion losses, if the contractor is unable to prove the actual loss, can be presumed to delay period by the construction site during the same period the standard calculation of the rental guide rent. Construction project for road, bridge cannot reference standard rent to calculate the actual losses, if the contractor is unable to prove the actual loss, can be presumed to be paid to the project for the base, according to the provisions of the people's Bank of China financial institutions during the same period the loan rate of interest.

Twelve, the cooperative development of real estate contract party as the developer signed a construction contract with the contractor, the Contractor's request of co-operative real-estate development contract shall bear joint and several liability for the debts of the construction contract, it shall be supported.

The parties signed a cooperative development of real estate is the transfer of land use right and other properties of the contract, one party and the contractor signed a construction contract, the Contractor's request the other party shall bear joint and several liability for the debts of the construction contract, the Contractor shall not be supported, but there is reason to believe that the parties except for the cooperative development of real estate contract relationship the. The other parties of responsibility, has the right to the employer's recovery.

Thirteen, the real estate development cooperation contract party has the legal personality of the item company, the item company signed a construction contract with the contractor, the contractor requires the cooperative development of real estate contract the parties shall bear joint and several liability for the debts of the construction contract, not to support. But the shareholders abuse the independent status of the company legal person and the limited liability of shareholders, a false capital contribution, withdrawing the case, in accordance with the provisions of the "PRC Company Law" and other relevant laws, administrative regulations and the treatment.

Fourteen, it is affiliated with the name and the employer signed construction contract, the affiliated person and it shall bear joint liabilities for the construction contract debt, but the construction contract clearly agreed except the affiliated person does not assume responsibility.

Fifteen, the contractor of the construction contract project payment agreed upon creditor's rights to transfer, the transferee to claim its entitled to claim the priority of claim in construction projects, to support. The contractor in the transfer of engineering claim before and the employer agree to exclude the priority, the actual construction person outside the contract to the contractor not binding.

Guangdong Provincial Higher People's court

Several issues concerning construction contract dispute cases

 

Guangdong high method[2006] 37No.

Two00In October 30th six

 

In order to correctly judge the construction contract dispute case, according to the "PRC Contract Law", the Supreme People's court "on hearing construction contract dispute cases the interpretation of applicable law" and other relevant provisions, combined with the practice of trial work, such as the opinions put forward.

 

1The parties agreed, project fixed price, while the actual construction of the engineering quantity than the agreed scope of works to increase or decrease, can be confirmed based on the pricing of solid, refer to the contract settlement on the increase, according to a corresponding change in the total price of the settlement results. Should not put aside the contract, re settlement of the entire project cost.

2The parties settled, the government investment projects, should confirm its effectiveness. The financial sector or the Audit Department of the project, funding is monitoring with the use of administrative measures, is not legally binding on the parties to the civil contract. The employer to the financial sector or audit department did not complete the Completion Final Accounts audit, audit refused to pay for projects or to the finance department, the audit department audit, the audit results as the project settlement basis, not to support. But the parties expressly agreed to exclude finance department, audit department audit, the audit results as the project settlement or the parties malicious damage to the interests of the state.

3, construction contract is invalid, but in accordance with the "provisions on the law applicable to Construction Contract Dispute Cases Interpretation of" second can refer to the contract of project price calculation, if the contractor has the extension or the employer has the deferred payment of engineering section of the case, the parties should refer to the contract agreed to compensate the other party for the losses it caused by.

4There is no evidence that the parties have agreed, not calculating the settlement before the penalty and aroused interest, a party in the settlement after the completion of claim settlement before the penalty and aroused interest, can be supported. But if the parties have agreed to liquidated damages and mat endowment money interest payment time, payment should be agreed prescription calculation date period; if the parties have not agreed to liquidated damages and mat endowment money interest payment time, the limitation period, from the engineering settlement calculation. If the parties fail to settle to the intermediary cost identification, during the calculation of limitation from the received identification report intermediary date.

5In engineering, the employer fails to pay the settlement after the project, the Contractor's request to the employer in accordance with the contract agreed to pay the overdue payment default payment, shall support.

If the parties fail to settle to the intermediary cost evaluation, if the two sides agreed in the contract of the time and amount of engineering budget price or the work progress payment of agency cost, make the appraisal report, to go beyond the price agreed in the contract does not calculate the liquidated damages, but can calculate the unpaid interest according to the similar project people's Bank of the loan rates China; if the two sides have not agreed in the contract of engineering budget price, also not agreed work progress payment time and amount, made in the agency cost appraisal report before, do not calculate default payments, but can calculate the unpaid interest according to the similar project loan interest rates over the same period the people's Bank of China. To make cost evaluation report on the intermediaries, calculating the liquidated according to the provisions of the contract.

6In the trial, the people's court2005Years1Month1The day before the construction contract dispute cases, treatment on related issues, such as the previous laws and regulations and judicial interpretations are not clearly defined, can "explain" by referring to the provisions of.

Guangdong Provincial Higher People's Court on the trial work

How to apply"Contract law" article286ArticleGuidance

Guangdong high method[2004]2No.

Two00In January 17th four

 

In order to regulate the relevant, timely trialThe priority of construction project costCase, according to the "PRC Contract Law", the Supreme People's court "about the priority of construction project payment issues concerning" and other relevant provisions, combined with the practice of trial work, people's court how to apply the "contract law" article286Article the following guidance.

 

1In accordance with the law, the parties request the people's court to confirm their enjoyment of the construction projects priority claim during the proceedings of the first instance, the people's court shall request the procedure for trial, and decide whether to support the claim of the judgment.

The people's court to support the construction of priority of claim, proper judgment can be described as: the contractor inXXYuan range forXXEngineering (building) to enjoy the priority of claim in construction project, but in the decision on the date of entry into force (such as the engineering or building measures for custody of property for property preservation measures, the day before) has been the commercial housing for pre-sale registration, change registration or consumer has delivered over50%Purchase (loan in the commercial housing guarantee, including consumers to borrow money from banks.) except for the housing part.

2, conclude the general contract of the construction project contract, the total contract entered into the sub contract, the total contract, subcontract are effective circumstances, the employer payment in arrears, the general contractor on the project to discounted or auction price claim priority. Subcontractor to own part of the construction claims priority, the people's court shall not support. But as a result of the general contractor fails to exercise the priority damage subcontractor interest, subcontractor in accordance with the "contract law" article seventy-third of the contract price within the range of contract claim.

3, "contract law" article286Construction of the price as stipulated in the priority for the construction contract.

Construction curtain wall decoration, decoration contract belongs to the construction contract.

4The contractor can only, the construction project claim project priority of payment.

The contractor for its participation in the construction of schools, kindergartens, hospitals and other institutions, to the public for the purpose of social organizations, educational facilities, medical facilities and other public welfare facilities, does not enjoy the priority of construction project payment.

5The contractor, the construction project shall pay the staff remuneration, materials, etc. the actual expenses claim priority of construction project payment, the people's court shall support. The contractor for the loss by default claims the priority right, the people's court shall not support.

6, contractor's priority of claim on construction project the construction cost to enjoy discount or auction price of construction, but the resulting from the use of the construction engineering, the rental income may not exercise the priority.

7In the construction project, the contract invalid, the contractor claim priority of construction project payment, the people's court shall not support.

8, for reason of contractor in construction project completion acceptance or unqualified acceptance without the quality of the project, the contractor claim priority of construction project payment, the people's court shall not support. Except for third people to exercise the mortgage right to dispose of the construction project.

9, bearing, the parties involved in the construction project contract agreed in the contract the contractor is unable to exercise the priority of construction project payment, after the contractor in the construction of priority right is a legal right to the people's court that the contract is invalid and demanded the construction of priority right, the people's court shall not support.

10, the contractor in2002Years12Month28Days after the exercise of the priority of claim in construction project for a period of6Months, counted from the date of completion of the construction project or a construction project contract completion date. Completion of the project construction, and construction engineering contract completion date is not consistent, to date in the quasi.

The contractor in1999Years10Month1The day after the2002Years12Month28Before exercising the priority of construction project payment, without6Month time limit.

11Before the implementation, contract law, construction projects have been handling mortgage registration or sale, sale, the contractor claim priority of construction project payment, the people's court shall not support.

12The agreement between the two parties, bearing, the exercise of the project priority period in the contract, the contract effective. But in the2002Years12Month28Days later, bearing, the agreement of the parties to exercise the priority of construction project cost more than in the contract6Month, more than part of the void.

The contractor in excess of the statutory or agreed time limit to the people's court after advocates the priority of construction project payment, the people's court shall not support.