The Zhejiang Provincial Higher People's court civil trial chamber I

"On hearing the construction contract dispute cases a number of difficult questions"

   In recent years, with the rapid development of economy and society, the construction contract disputes frequently, new situation, new problems emerge in an endless stream. To hear such cases correctly, the provincial high court civil trial chamber I through further investigation, and to solicit opinions, we answer some prominent problems such as in the case of, for reference in case.

A, how to identify the internal contract? How to recognize its effectiveness?

   Contract of construction project contractor and its subordinate branches or employees of the signing of the contract, the contractor of all or part of the works contracted to its subordinate branches or staff construction, and give support in capital, technology, equipment, manpower and so on, can be regarded as the internal contract enterprises; the parties to the contract in-house the contractor has no construction qualification grounds, advocated the internal contract invalid, does not support.

Two, how to identify without"Four card"The signing of the construction contract's effectiveness?

   The employer fails to obtain the construction land planning permits and construction planning permit, signed a construction contract with the contractor, the contract shall be deemed null and void; but the acquisition of construction land planning permits and construction planning permit or be completed verification by the competent authorities in the first instance trial before the end of the debate, which can be identified effective.

The employer fails to obtain a warrant or building construction permits the use of land for construction, does not affect the validity of contract of construction project.

Three, how to determine the effect of the parties on the project cost valuation method agreed the terms?

The construction contract project cost determination method although evidence inconsistent with the construction project valuation, but not in violation of laws, administrative regulations of the mandatory provisions of the agreement, should be considered valid.

Four, how to determine the effect of minimum parties agreed warranty period below the legal provisions warranty terms?

Warranty period of normal use conditions agreed under the engineering construction contract is lower than the minimum limit of the state and the province, the contract shall be deemed null and void.

Five, how to determine the starting time?

The construction contract the start time to notice to commence or commencement report as the basis. Notice to commence or commencement report issued, still do not have started the conditions, should be based on the operating conditions to determine the time of achievement. No notice to commence or commencement report, should be based on the actual start time determination.

Six, how to identify the extended time limit for a project?

The employer only by the contractor not within the time specified in the present period extended for that period can not be postponed, the claim could not be established. But the contract clearly agreed not to raise period extended application as the project period shall not be within the prescribed time, should comply with the contract.

Seven, the employer have confirmed the signing of acceptance, if a quality problem that plea, extension or not to pay the contract price?

The employer has the organization acceptance and signature in the relevant documents to confirm the acceptance, and later to the engineering quality defects on the grounds, refused to pay or delay payment of construction costs, the claim could not be established. But because the contractor led to the construction engineering quality of the main structure of foundation engineering, not qualified, the employer can still refuse to pay or delay payment of project cost requirements.

Eight, how to grasp the identification procedure of engineering quality start?

To strictly control the construction quality of the identification procedure start. Construction project without a completed acceptance, the employer is not allowed to advance, the employer for engineering quality objection and provide preliminary evidence, can start the identification procedures.

Nine, the employer to project quality is put forward for the competing claims, whether the defense or counterclaim?

The contractor for payment of project cost, the employer to project quality does not meet the standard quality standard stipulated in the contract or national mandatory grounds, reduce project cost, according to defense; the employer requests contractor compensation for losses, according to the prescribed.

Ten, what evidence can be used as the basis of engineering settlement price, engineering?

The supplementary agreement, the parties formed in the construction process of meeting minutes, the work liaison sheet, engineering change orders, engineering reconciliation visas and other correspondence, records and other written evidence, can be used as engineering calculation and determination of project cost basis.

Eleven, in the construction process of who has the right for the visa, the engineering quantity and price and other related material confirmation?

To strictly grasp the related materials in the process of construction and confirmation of visa. Except as expressly authorized legal representative and contract personnel, other personnel of engineering quantity and the price of visa, confirmation, do not have the force of law. There is no agreement expressly authorized, legal representative, project manager, person in charge on site visa, that have the force of law; other personnel visa, confirmation, do not have the force of law to the employer, unless the contractor personnel have the appropriate permissions to prove the.

Twelve, can adjust the total lump sum contract engineering, project cost?

The construction contract with fixed price contract, the parties to the actual quantities exist or claim adjustment, agreed upon shall be handled according to the. There is no agreement, contract scope is clear, can adjust the corresponding price range of engineering; contract agreement is not clear, advocate the regulated party should bear the burden of proof.

Thirteen, the construction contract is invalid, but the completion of the project acceptance, who has the right to request according to the contract to determine the construction cost?

Construction contract is invalid, but the completion of the project acceptance, in accordance with the "provisions of the Supreme People's Court on some issues concerning the construction contract dispute case law applicable to the interpretation of" second spirits, the contractor or employer may request by the contract to determine the construction cost.

Fourteen, the contractor can directly request the price according to the completion of the settlement documents clearing project?

The construction contract clearly agreed the employer shall give a reply the submission by the contractor of completion document after a certain period of time, and if no reply is seen as recognition of completion settlement documents, the contractor may request of project price settlement according to the completion of the settlement documents.

Construction contract is agreed upon the employer shall give a reply the submission by the contractor of completion document after a certain period of time, but no agreement fails to reply as recognized by the completion of settlement documents, the contractor cannot request to determine the construction cost in accordance with the completion of the settlement documents.

Construction contract contract submitted completion settlement documents not reply is considered approved completion settlement documents in the contractor, but does not stipulate the response time, and the contractor notice, the employer still fails to respond, the people's court may determine a reasonable response time according to the actual situation, but the reply period should not exceed60Day.

The construction contract was not expressly agreed by the parties, the contractor not only toGF-1999-0201"Construction contract (model version)" general terms33.2Based on the price according to the completion of settlement documents, requirements engineering settlement.

Fifteen, how to identify"Black and white contract"?

Identification of"Black and white contract"When the question"Substantial content"In the contract, including the project cost, project quality, project time limit of three parts. In the process of construction, because the design change, construction project planning parameters adjustment and other objective reasons, bearing, the parties to the supplementary agreement, meeting minutes, correspondence, and visa with record form, change of time, written documentation project cost, project properties, should not be regarded as "tendering and Bidding Law of the PRC" article46The provisions of"The tenderer and the winning bidder to conclude other agreements deviating from the substantial contents of the contract".

Sixteen, the"Black and white contract"How to settlement?

Construction contract is the same construction project shall conclude with the substantial contents of the contract are not consistent, regardless of whether the contract after the registration, shall be in accordance with the provisions of the Supreme People's court "about the applicable law hearing construction contract dispute cases the interpretation" in article twenty-first, the contract as the engineering settlement price basis.

The illegal bidding, parties and be signed construction contract, regardless of whether or not after the registration of the contract, two copies of the contract are invalid; should be in accordance with the Supreme People's court "on hearing the construction contract dispute case applicable legal provisions" asked interpretations of article second, would be consistent with the true meaning of the parties, the contract and specific performance in the construction, as the project price settlement.

Seventeen, start the project and project cost identification procedures, should pay attention to what the problem?

The parties to the dispute, not agreement, also cannot take other determining, can according to the application of the parties, identification of project cost; both parties shall not apply for accreditation, should be the interpretation to the burden of the parties, its still do not apply for the identification of the legal consequences, which bear the burden of proof not.

Litigation has been selected jointly by the parties identified agency with corresponding qualifications of project cost was identified, re identification of a party requests in the proceedings, shall not be permitted, 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 of article twenty-seventh exception.

The first instance proceedings for the identification of project cost, the parties in the second instance proceedings to apply for re identification or supplementary appraisal, shall not be permitted, but there is evidence that the appraisal conclusion has the Supreme People's court "several regulations about the civil action evidence" of a paragraph of article twenty-seventh circumstances except.

The second instance proceedings, both parties agree to identification, may be permitted, except that may damage the public interests or the interests of the third party.

The people's court shall avoid random, blind identification and unnecessary repeated, repeated identification. According to both parties of the contract or the existing evidence, sufficient to determine the quantities and the project cost, should not be on the project cost identification.

Eighteen, the project due to the employer fails to timely completion and acceptance, the employer can refuse to pay the project to project is not completed acceptance?

The employer's receipt of the completion acceptance report, within a reasonable period of time without justifiable reasons, no organization acceptance, not to a project without acceptance on the grounds, refused to pay the contract price.

Nineteen, how to determine the construction contract about the nature of construction period and quality of rewards and punishments to the agreed?

The construction contract agreement about the duration and quality of reward and punishment measures, it shall be regarded as liquidated damages clause. The request of the parties, in accordance with the "section second" contract law of the people's Republic of China in 114th, and the Supreme People's court "on the application< of the people's Republic of China Contract Law>A number of issues of interpretation (two) "the provisions of article twenty-seventh, article twenty-eighth, article twenty-ninth of the adjustment, can be supported.

Twenty, the contract invalid if the impact on project quality agreement, promise?

Construction contract is invalid, shall not affect the employer according to the contract, the contractor produce quality warranty or laws and regulations, request the contractor responsible for the engineering quality.

Twenty-one, the contractor can also request overdue payment of liquidated damages and interest?

The contractor is not in accordance with the construction contract, not only request the employer to assume overdue payment default payment, and also requests the corresponding interest payment.

Twenty-two, the invalid construction contract cases, who have the right to exercise the priority right to be repaid?

Construction contract is invalid, but the project after the completion acceptance, the contractor may claim the project priority of payment. Subcontractor or actual construction completed contract obligations and the construction project quality, the general contractor or subcontractor fails to exercise the priority right, the construction of the project construction cost in the range of the employer to pay less to claim the priority.

Twenty-three, the actual construction people who claim to be?

The actual construction of the contract relative person bankruptcy, One's whereabouts is a mystery. or credit conditions deteriorated, or the actual construction to the contractor (the general contractor) between the contract are invalid, in accordance with the provisions of the Supreme People's court "article second on applicable law hearing Construction Contract Dispute Cases Interpretation of" twenty-sixth the file includes the employer, including for the defendant.

 

A Zhejiang high court hearing such difficult answer construction contract disputes
   

(the news)4Month5Afternoon, the Zhejiang Provincial Higher People's court held a news conference, announced the Institute to develop a "hearing on the construction contract dispute cases several difficult questions to the society" (hereinafter referred to as the "answer"), rationalize the construction industry"Rule"Caused by the growing number of disputes, the guidance of provincial courts to properly hear construction contract dispute cases, the uniform application of the law and the referee standard.

"Rule"Construction industry under the chaos to justice"Sword"

In recent years, with the fast development of our city urbanization advancement, public infrastructure investment and real estate market, the Zhejiang construction industry development, the main economic and technical indicators in the leading position in the country, a considerable share in the national construction market.

A court in Zhejiang High Court Civil director Jiang Weiyu,2011Year, the total output value of the construction of Zhejiang14686Billion yuan, of which the complete output in the province7339Billion yuan; total profits and taxes865Billion yuan, realize the profit415Billion yuan; housing construction area145488Million square meters; the construction industry output value of over 10 billion yuan enterprises15Home. At the same time, from a nationwide perspective, the domestic construction market is not standardized, supervision management is not in place, the internal disorder and the weak link, and the competition is fierce, the irregular development project, together conspired bidding, offer prices lower than the cost, the qualification unqualified contracting, subcontracting, subcontracting, link and other phenomena occur; the pursuit of to maximize the benefits, some construction will reduce the cost of the project, Jerry, shoddy, leading to the project quality is not high,"Bean curd dregs","Fragile building","Building was","Building collapse"Such incidents have occurred; states affected by the impact of macro-control, funds chain tight caused by lack of investment, resulting in a large number of projects, and migrant workers wage arrears phenomenon, has seriously violated the construction enterprises and the legitimate rights and interests of migrant workers, far beyond the economic problem and law problem level, evolved into a social problem, disputes contradictions, the construction contract disputes and the influx of court.

According to statistics, the Zhejiang court2005Years to accept a trial of cases of disputes over construction contracts2682Piece,2006Years to receive2757Piece,2007Years to receive2866Piece,2008Years to receive3738Piece,2009Years to receive4070Piece,2010Years to receive2927Piece,2011Years to receive2523Piece.

Our country has formed the basic framework of multi-level administrative regulations, rules and the legal system, the Supreme People's court in2004Years the introduction of judicial interpretation, but still not enough to solve the problem of new types of problems emerge in an endless stream, the current difficulties, hot, causing great difficulties to the court to hear such cases, led to the applicable law and the referee standard is uniform, the urgent need to a higher court for professional guidance to the relevant problems.

To this end, the Zhejiang high court to solicit opinions within three levels of courts, and set their sights on the social from all walks of life, especially the construction companies, real estate companies, lawyers association, the construction industry related departments and such disputes close unit, specially convened expert advisory argumentation for demonstration and research.

Here, some enthusiastic people also put forward opinions and suggestions to modify the letter. A master graduated from East China University of politics and law students, wrote a6000Words of the proposal, put forward many useful suggestions and comments.

"Quality first"The principle of the contract is null and void

"Important project, quality first"Construction project involving thousands on thousands of people, life, body, health and property rights and interests, not lose. Jiang Weiyu said, "answer" to make three main principles: one is the principle of quality first. In assessing whether to apply for the"Violating the compulsory provisions of laws, administrative rules and regulations"Cause the contract invalid, and its aim is related to the quality of construction, should be understood as the effectiveness of mandatory provisions, the parties once violated, will produce the consequences of the invalidity of the contract. For example, no professional contract works, affiliation, illegal subcontracting, are null and void; the parties agreed warranty period is less than the minimum limit of the state and the province, the contract is invalid, in order to ensure the quality of the construction project, the security of human life and property.

The two is to regulate the construction market order principle. Any violation of the normal order of the construction market behavior, should also be recognized as invalid. For example, in violation of the bidding order, should not tender bidding, in order to lower than the lowest bid, or the presence of"Black and white contract"The problem, also confirmed that the contract is invalid.

At the same time, the contract invalid principle. In the trial practice should distinguish between the provisions of the laws, administrative regulations of the mandatory provisions, administrative mandatory, only the violation of construction project contract validity specified is invalid. If the employer fails to obtain warrants or building construction permits the use of land for construction, does not affect the validity of contract of construction project.

Judicial Daobi project management contractor specification

"The answer"23To make unified regulation problems of a construction contract dispute case.

Management mode of construction industry has its own characteristics, the construction people in the form of project manager department management of construction project. The project manager to implement internal contract management responsibility system.

"The internal contract, as a kind of management mode of construction enterprise, is neither illegal subcontracting, also not linked, so its itself is legal, is the scope of the enterprise independent decision-making."Jiang Weiyu said, but what is it, subcontracting or internal contract, due to a similar"Appearance"In the standard, there are ambiguities, the judicial practice is not uniform.

"Answer" the spirit of not only admit the construction company management mode, but also to prevent evasion of law, to the internal contract in the name of illegal subcontracting, link it in reality principle, think: the contractor and its subordinate branches or employees of the signing of the contract, the contract all or part of the contract to their subordinates the branch or the staff construction, and give support in capital, technology, equipment, manpower and so on, can be regarded as a contract within the enterprise contract, the contract effective.

At the construction site, workers are very complex. In reality, as a project manager, a supervisor, a site engineer as the chaos or malicious collusion with others, leading to the project can not be completed, the enterprise collapse situation, not uncommon. Jiang Weiyu introduced,"That construction activities and judicial practice, the project manager management anomie is one of the important reasons of current construction chaos, frequent disputes. The main performance: Project Manager of unknown authorization, permission to expand indefinitely, financial management is out of control, the project department official seal management confusion, members of the project access control etc.. These coupled with subcontracting, and subcontracting and other factors, often caused by overlapping of legal relation to the facts of the case, whirling."

And these problems in the judicial practice, has not completely consistent, now and then also not consistent understanding. "Answer:" clear unless specifically authorized legal representative and contract personnel, other personnel of engineering quantity and the price of visa, confirmation, do not have the force of law. There is no agreement expressly authorized, legal representative, project manager, person in charge on site visa, that have the force of law, other personnel visa, confirmation, do not have the force of law to the employer, unless the contractor personnel have the appropriate permissions to prove the."Based on the burden of proof angle, Daobi construction management construction specification, which is beneficial to the limited source of chaos, to prevent disputes from the source of."

"Black and white contract", prevail?

At present the case to the trial court in the construction contract disputes, with more than half involved"Black and white contract". In judicial practice, generally black contract invalid. But how to determine the black-and-white contract,"Substantial differences"How to grasp, become a difficult problem in the judicial practice. Especially the construction contract has its particularity, long cycle, large changes in the performance of its content, the contract process often will have some changes, these changes can constitute"Substantial differences"How to understand, how to grasp, very intelligent, a test of the judge.

"Answer:" think that"Black and white contract"When the question"Substantial content"In the contract, including the project cost, project quality, project time limit of three parts. In the process of construction, because the design change, construction project planning parameters adjustment and other objective reasons, bearing, the parties to the supplementary agreement, meeting minutes, correspondence, and visa with record form, change of time, written documentation project cost, project properties, should not be regarded as"The tenderer and the winning bidder to conclude other agreements deviating from the substantial contents of the contract".

For"Black and white contract"How to settle the problem, the more controversial. Judicial practice in Zhejiang, some with white contract as the settlement basis, some black contract as the basis for settlement, and through the audit identified in real settlement, serious impact on the unity of such cases the referee criterion.

Therefore, "answer" bidding procedures in accordance with the principles of fair competition, protect the legitimate rights and interests of the main body of the market, avoid"The illegal person interests", clear: the construction contract with a construction project shall be concluded with the substantial contents of the contract are not consistent, regardless of whether the contract after the registration, should be to the contract as the project price settlement.

At the same time, in view of the parties through the string, lower than cost price and other illegal bidding,"Bai Hetong"Is invalid, the parties clearly: illegal bidding, and be signed construction contract, regardless of whether or not after the registration of the contract, two copies of the contract are invalid; shall accord with the true meaning of the parties, the contract and the specific performance in the construction, as the project price settlement.

The employer signed acceptance, if a quality problem plea?

In judicial practice, the developer has signed acceptance of the project, that project quality reach the requirements stipulated in the contract, but later found out that there are significant security risks or the main body project of the project or the foundation quality is not qualified, which require the construction shall bear the responsibility of quality warranty or refused to pay the remaining project money, often occurrence.

"The problem to be One divides into two. view."Jiang Weiyu said, one is if the quality problems in general, since the employer has already signed acceptance, it shall be deemed that the project quality is no problem, or to give up on the defect investigation rights. Therefore, not to the contractor responsible for the breach or defense not pay for projects; two if there is quality problem the main body of the project or project, there are significant hidden danger, the cause of quality problems or potential lies in the contractor, then because of this project involves many people's life and property safety, is very important, is contract people shall still bear the relevant responsibility, the employer can not pay defense works.

"Answer" clear, the employer has to organize acceptance and sign relevant documents confirm acceptance, and later to the engineering quality defects on the grounds, refused to pay or delay payment of construction costs, the claim could not be established. But because the contractor led to the construction engineering quality of the main structure of foundation engineering, not qualified, the employer can still refuse to pay or delay payment of project cost requirements.