The Supreme People's court people a court "on hearing construction contract dispute cases the interpretation of applicable law" the understanding and application of

　
Feng XiaoguangA division of the Supreme People's court
The relevant background and guiding ideology, drafting a judicial interpretation

In order to implement the "general principles of civil law", "contract law", "Bidding Law" and other laws and regulations, the Supreme People's Court on the 1327th meeting of the judicial committee "on the law applicable to construction contract dispute cases the interpretation" (hereinafter referred to "explain"). The judicial interpretation of the Supreme People's court is mainly based on two considerations, one is to give the country a clean-up project implementation of arrears and wages of migrant workers tow major deployment and provide judicial guarantees. Because, in recent years the development of China's construction industry is very fast, the construction industry to absorb a large number of migrant workers employment, and stimulating the development of many related industries, the construction industry has become a new growth point of our national economic development. With the rapid development of the construction industry at the same time, there are also some problems, such as: the problem of building quality, construction engineering market behavior was not standardized, a shortage of investment, especially the problem of underinvestment caused 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. This is not only an economic problem, but also a social problem, but also a legal problem, has aroused great attention of the Party Central Committee and the State Council leadership, countries have to take special measures to control, the "interpretation" is mainly to provide more explicit, effective protection from the law. Two is due to some legal provisions on the principles, the people's court in the trial of cases of disputes over construction contracts, on certain legal problems in the specific application of the understanding not unified, such as invalid contract processing principle, the lifting of the contract conditions, project price settlement problem of substandard quality engineering, construction in progress, engineering quality defects liability, engineering interest on arrears starting time, do not solve these problems of application of law, not only affects the efficiency of the people's court for judicial justice, the unity and the trial, but also not conducive to the settlement of arrears and wages of migrant workers as soon as possible. Therefore, in order to facilitate the implementation of unified national special measures, the people's court enforcement, protect the legitimate rights and interests of the parties, maintaining the normal order of the construction market, and promote the healthy development of the construction industry, the Supreme People's court decided to formulate this judicial interpretation.

According to the Supreme People's court work deployment, from 2002 March onwards, the Supreme People's court civil trial chamber I began to "explain" the drafting. In the process of drafting held various seminars, repeatedly listened to the legislature, the competent departments of the State Council, construction companies, real estate development companies, lawyers, experts and scholars, the project cost and project quality appraisal agencies and other relevant views, in 2003 November formed the judicial interpretation. In order to ensure that the judicial interpretation to pool their wisdom, reflect public opinion, to better safeguard the fairness and justice, protecting the legitimate rights and interests of the parties in accordance with the law, December 15, 2003 will be the drafting of the judicial interpretation in the "people's court" and the people's Court published online, open to the community to seek advice. This judicial interpretation has received extensive attention from all sectors of society, the social from all walks of life presented in a different form to modify nearly a thousand views, in the relevant observations are summarized, after careful study, the formation of the "Manuscript" interpretation of the Supreme People's court, and the 1327th meeting of the judicial committee discussed by. Promulgated and implemented the "explanation", to regulate the construction market, and promote the development of China's construction industry, to ensure the construction quality, safeguard the people's lives and property safety, the fair protection of construction contract construction parties legitimate rights and interests of the parties, will play an active role in.

Say "interpretation" is divided into parts from the structure, the first part is first - twenty-sixth, is provided on the trial of the construction contract, is the debt of the contract. The second part is about twenty-seventh, the provisions due to repair obligations fails to timely infringement, tort obligation. The third part twenty-eighth provisions on "explain", is the effective time, retroactive effect and the conflict of laws. The first part can be divided into two parts, first - twenty-second article is about the construction entity construction contract; twenty-second to twenty-sixth article is about the construction procedure of contract construction. Further, first - twenty-second in first - seventh article is about the validity of the contract, stipulate the contract construction contract invalid, void construction project through the acceptance of qualified and unqualified situation how to settlement price, the people's court may apply the relevant provisions of the general principles of the civil law "" the illegal income confiscated the completion of the construction project contractor, before has been achieved and to undertake construction projects consistent with the level of qualification can not determine that the contract is invalid, the construction contract underwritten agreement is valid, the subcontractor shall be deemed effective provisions not subcontract. Eighth - tenth are respectively provided for in the contract, the contractor is entitled to exercise the right to rescind the contract situation, lift the consequences. Thirteenth - twenty-first are about the construction contract for the settlement of accounts, project quality, time limit for a project, the project price interest owed, "black and white contract" and other aspects of the regulations. Twenty-second - twenty-sixth is the prescribed procedures for the construction contract, identification of problems including the construction contract, application of the general principle of territorial jurisdiction to determine the performance of the contract provisions, the general contractor, subcontractor, the actual construction engineering quality of the employer shall bear joint and several liability provisions, the actual construction provisions can contract for the plaintiff under certain conditions.

Two, "explain" content

In a broad sense, the Supreme Court in strict accordance with the current regulations formulated "explain" provisions, fully embodies the principle and spirit of the law, the legal authority in civil trial practice with "explain" formulation, the people's court to realize justice and efficiency of the work theme. Specifically, "explain" include the following principles: as far as possible to maintain the effectiveness of the contract, the contract is invalid but construction engineering quality, can also refer to the contract settlement price, for the unqualified cannot repair engineering can not pay the contract price, the underwritten clause does not be invalidated, further defined the conditions, the termination of the contract the quality defects of engineering is at fault, should also be held accountable, "black and white contract" should be based on the record of the contract, the Employer receives settlement report fails to reply as approval, in the project price, shall pay the interest, strengthen the protection of the legitimate rights and interests of the migrant workers. Details are as follows:

(a) about the validity of the contract

The construction contract by laws and other normative documents in different areas of the adjustment. Laws, administrative regulations and ministerial rules regulating the mandatory norms of construction contract has more than 60, if the violation of these standards are in violation of mandatory provisions of the law on the grounds that do not meet the contract is null and void, "contract law" legislative intent, not conducive to the maintenance of the stability, is not conducive to the protection of legitimate rights and interests of the parties at the same time, the normal order of the construction market will also destroy. Mandatory provisions of laws and administrative regulations in the administrative management, some belong to the specification, if the violation of these Rules shall be subject to administrative punishment, but shall not affect the validity of contract. From the content of the mandatory norms of relevant laws, administrative regulations, can be divided into two categories: one is the guarantee of construction engineering quality standard, two is to maintain the fair competition order of normative construction market. "Explain" the first and fourth of the two categories is divided into the following five cases: one is the Contractor fails to obtain the construction enterprise qualification or qualification certificates; two is the actual construction people no qualification by construction enterprises qualified name; three is the construction project must be tender without the tender or bid invalid; four is the contractor illegal subcontracting construction; five is the contractor subcontracting of construction projects. Can be seen from the above provisions, the construction market access conditions than real estate development enterprises more strict, the construction enterprise qualification certificates enterprises in the signing of the contract, the people's court shall hold the contract invalid; beyond the real estate development business enterprise the enterprise qualification grade when signing a contract, do not lead to contract law; difference the provisions on the main is due to the particularity of construction products decision, because the building products are big issues related to the safety of the lives and property of thousands of households, so the law provisions of construction enterprise market access conditions than real estate development enterprises more strict. In addition, in addition to the five cause the contract invalid provisions of this interpretation of the basic law, "the provisions of general principles of the civil law" and "contract law", the contract invalid, should also be applicable to the construction contract, like the "construction law" provisions of article twenty-fourth, prohibited the construction dismembered the. The administrative regulations of the State Council "construction quality management regulations" provisions of article seventh, the construction unit shall not be dismembered the construction project. If a construction unit will be construction dismembered contracts with the construction unit construction contract, the people's court shall be regarded as valid.

(two) the engineering quality problems

The construction of quality guarantee is the "contract law", "construction law" and other laws and regulations, the pursuit of the goal, is also the "interpretation" of the pursuit of the purposes and objectives, embodied in the:

1, the contract invalid but construction engineering quality, can also refer to the contract settlement price. "Contract law" the fifty-eighth regulation, the contract is invalid or is rescinded, property obtained under the contract, shall be returned; not possible or necessary shall be returned, discount compensation. Construction contract is special, the contract fulfillment process, which is the process of building materials, labour and materialized in the building products. After the contract is confirmed invalid, has performed the content can not be applied to return the contract to sign before the state, but only in accordance with the discount compensation approach. From the perspective of the actual performance of the construction contract, if the contract is confirmed to be invalid, there are two kinds of discount compensation methods, one is to project quota for the standard, determine the construction project value through the identification, considering the actual situation of China's construction market at present, some of the developer signed a contract tend to project cost pressure very low, if the contract is confirmed invalid according to the first scheme discount compensation, will result in an invalid contract is higher than the effective contract project cost, which is beyond the parties signed the contract is expected to. Two is to refer to the contract settlement price. This discount compensation not only accord with the true meaning of the parties entered into the contract, but also can save the identification of costs, improve the efficiency of lawsuit. Therefore, through the comparison of the above two kinds of discount compensation scheme, according to the current situation of China's construction industry, the balance of interests of parties to the contract, in the "interpretation" of the provisions of article second, after the construction project construction contract is confirmed invalid, construction quality, can refer to the contract settlement price. "Explain" established the principle of discount compensation by the contract of project price settlement. This and the "general rules of the civil law", "contract law" the provisions of article fifty-eighth are not contradictory, but in the treatment of invalid construction contract dispute case in a concrete manifestation of the "contract law" provisions of the invalid principle.

"Explain" the provisions of article second invalid contract applicable only refer to the subject matter of the contract for construction project quality, not including construction engineering quality is not qualified. Construction engineering quality, including two aspects, one is the construction project final acceptance, two construction projects after the completion of the unqualified acceptance, but after the contractor after the repair, and acceptance. In short, as long as the construction project through acceptance, even to confirm the contract null and void, can also be in accordance with the contract settlement price. "Explain" the tenth regulation, the construction contract, construction works have been completed qualified, the employer shall pay for the corresponding project price contract; has completed the engineering quality is not qualified, the third interpretation of provisions. The provisions of article sixteenth, the construction contract, but the construction projects after the completion of the unqualified acceptance, project price settlement according to the third interpretation of provisions. The provisions of article three, in the performance of contract, the termination of the contract to fulfill the contract effective, effective results were construction engineering quality is unqualified, "explain" provisions shall apply to the same standard as the treatment principles, standard quality reflects the construction above all principles, to some extent, the quality standard of the project can be higher than the effectiveness contract, the principle of "contract law", "construction law", "Bidding Law" and other legal principles and spirit.

2, for the unqualified cannot repair engineering can not pay the contract price

"Explain" the first paragraph second paragraph third: contract, construction project repaired after the completion of the unqualified acceptance, the Contractor's request for the project price, does not support. This provision is considered:

A construction contract is a special form of contract, the contract law is the Contractor's obligations in accordance with the contract, the employer is to deliver the construction of qualified construction contractor, if the delivery of quality is not qualified, the employer to conclude a contract purpose can not be achieved, the employer can not only refuses to accept the project, but also can not pay the contract price. This is the law to adjust the processing of civil contract relationship principle.

Two is based on the "interpretation" provisions, the construction contractor to the experience of failure can be repaired by the repair, construction engineering quality of qualified, the employer shall pay the prescribed project payment; if the repair construction still unqualified, the project has no use value, let the employer to pay the contract price is not fair in this case.

Three is not in accordance with the contract agreed to pay the contract price, will certainly give the contract losses, but the Contractor's construction project builders, the unqualified should bear the primary responsibility, therefore, generally speaking, losses shall be borne by the contractor. However, if the employer is also at fault caused the engineering quality is not qualified, should also bear and adapt to the fault liability. That is to say, in the case of fault, the employer may not take paid in accordance with the agreed project payment obligation contract, but should the contractor cannot get the construction cost of the loss according to the fault liability. "Explain" the third provisions of the second paragraph: due to substandard construction damage, the employer is at fault, it shall bear the corresponding civil liability. "Contract law" provisions of article fifty-eighth, the avoidance of the contract, the party at fault shall compensate the other party for the losses caused thereby, both parties are at fault, they shall bear their respective responsibilities. The contracting parties, in accordance with the fault respectively shall bear the corresponding liability, such provisions and principles of civil law is not only in conformity with the actual situation of the construction market, but also conducive to the contract to pay attention to the quality of construction projects, and strengthen supervision and management of the quality of the project.

3, the quality of engineering is at fault, it shall bear the responsibility. The quality of construction projects related to public safety, in order to ensure the quality of construction projects, the "contract law", "construction law" and other laws, administrative regulations or departmental rules have made many specific provisions, provisions such as the contractor of construction qualification, subcontracting, engineering acceptance, project warranty, engineering supervision, building materials supply in terms of these regulations, the core is to guarantee the quality of the project. Generally speaking, the main contract the Contractor's obligations is in accordance with the contract agreement and the national standard of construction, the construction of qualified delivery to the employer, if there are defects in the quality of the project, the Contractor shall bear the responsibility. But in exceptional circumstances, quality defects in construction and contracting party concerned, if the employer does not undertake the corresponding responsibility, let the contractor responsibility is not fair. Therefore, "explain" the twelfth regulation, design the employer provides defective, supplied or specified purchase building materials, building components and fittings, equipment does not meet the mandatory standards, directly nominated sub sub professional engineering, should bear the responsibility.

(three) not be invalidated on underwritten clause

Previously, the people's court that the property in construction contract underwritten, with funds clause or the parties shall sign a contract for the enterprise law underwritten human illegal lending money, such acts in violation of the provisions of the State Planning Commission, the Ministry of construction and the Ministry of Finance jointly issued "on the strict prohibition on the construction of a service contract notice", but whether should be identified underwritten provisions invalid, but there are different opinions.

In the judicial interpretation in the process of drafting, we consider, one is the construction market is relatively common, the employer to require the contractor to pay, if the contractor without funding, underwritten also difficult to engineering contracting, if they do not recognize the underwritten effectively, is not conducive to the protection of lawful rights and interests of the contractor. Two, China has joined the WTO, the construction market is open, the main building market is probably the domestic enterprise, may also be a foreign enterprise, and the international construction market is to allow underwritten, if we determine underwritten are invalid, in violation of international practice, and the development trend of international construction market at. Three is the "contract law" according to the provisions of article fifty-second, must be in violation of mandatory rules of law, administrative regulations, can invalid contract. But from the law perspective, "notice" on the strict prohibition on the construction of contract does not belong to the laws, administrative regulations, departmental rules and regulations to belong to, can not become a people's court according to law the terms of the contract invalid. The four is in the performance of the construction contract, because the contract nature of the contract, not only take in account contract, contract belongs to the composite contract. In construction contracts usually agreed payment according to the construction of the image of the progress, because the image of progress is not an accurate time point, the contract must exist in construction and payment of the time difference, nature is aroused, the contract of construction is decided by the nature of contract underwritten, is inevitable. Five is underwritten in foreign legislation through often expressly protection pad capital also aroused interest, like the "German Civil Code" has made this clear. Six is due to the people's court shall confiscate the illegal underwritten, aroused interest, the emergence of a large number of disguised underwritten in practice, the relation between the contractor and the employer signed false housing sales contracts, contract, loan contract and so on, because the true meaning of the parties is underwritten but not signing contract, the housing trading is underwritten contract simple, rough, Its loopholes appeared one after another.; litigation, due to the existence of two different nature of the contract, the parties for their own interests and each sticks to his argument, to the people's court to bring a lot of unnecessary trouble, often to the contractor have adverse consequences.

Based on the above considerations, "explain" the parties agreed to pay and provisions of interest, in accordance with the request of the return of mat endowment money and interest on the contract, shall support. In order to establish the processing principle effectively underwritten contract. According to "explain" provisions, the parties to pay interest calculation standards agreed cannot exceed the state's legal benchmark interest rate; if exceeded, not to protect the excess.

(four) on the termination of the contract

According to the "contract law" provisions, the termination of contract is divided into two kinds of contract rescission and legal rescission. From the "contract law" the legal rescission is mainly applied, main obligation on parties fails to perform the contract, the contract can not achieve the purpose of situation, "explain" the provisions of article eighth and article ninth, mainly on the contract law article ninety-fourth of the regulations applicable to the construction contract the right to terminate a contract specific its purpose is to terminate the contract, definite conditions, contract at will be lifted to prevent, so as to ensure the construction contract total actual performance. In practice, generally speaking, bearing, the parties do not want to cancel the contract. The contractor, such as the lifting of the construction contract, the contractor must make in the material suppliers for litigation engineering building materials are returned, assume the default consequences, halfway operating loss of the Contractor's great. The employer, terminate the contract, the construction unit construction projects prior to the termination of the project on how to link is a problem, in addition, schedule delays, spending increases and other issues is inevitable. The termination of the contract, the contract of the parties, the termination of the contract is a difficult choice, but under certain conditions, the parties can choose to terminate the contract; for compliance with the conditions of legal contracts, the parties request, the people's court shall rescind the contract. "Explain" it is necessary to make the provisions on termination of the contract.

"Explain" the eighth provisions of the contract rescission, the regulation: the contractor has one of the following circumstances, the employer requests to terminate the contract of construction project, and should be supported: (a) expressly or by conduct that it will not perform its main obligations of the contract; (two) not completed within the period stipulated in the contract in a reasonable period of time, and the employer for exhortation is not completed; (three) completed construction project is not qualified, and refused to repair; (four) the construction engineering illegal subcontracting, illegal subcontracting. The behavior of the Contractor fails to perform the obligations are the main contract, and will cause the employer to also obtain construction project contract difficult to achieve the purpose, should allow the employer to terminate the contract in accordance with the law.

The provisions of article ninth of the contract rescission. This stipulation: the employer is under any of the following circumstances, the contractor can not work, and fails to perform the corresponding obligations within a reasonable time limit for exhortation, the contractor requests to terminate the contract of construction project, and should be supported: the first is not to pay the contract price according to the agreed; two is the main building materials, building supply. Accessories and equipment do not meet mandatory standards; three is not fulfil a contractual obligation to assist the contract.

(five) on the engineering settlement

Shall be in accordance with the contract settlement price, which is the primary standard of Engineering settlement. Including: contract is according to the fixed price settlement, should respect the contract, not just settlement, also cannot use other methods of valuation and valuation standard settlement. The settlement agreement is the cost plus fee or can price settlement, shall be in accordance with the contract pricing method and pricing standard settlement. The construction of the quantities or project price change a record of negotiation, like visa, summary of the talks, said contact form, meaning clear, shall be deemed as the nature of contract change situation, do not violate the mandatory provisions of the law, should be identified with record. Because of the design changes to the construction project in the amount or quality standard changes on the part of the project, the price could not be agreed, can valuation method according to the construction contract when the local construction administrative departments issued or valuation standard settlement of project cost. "Can refer to" is an advocate for terms, is published in accordance with the local construction administrative departments of the valuation or valuation standard settlement of project cost, this standard settlement project price, in relative terms, in line with the objective reality contracting parties, conform to fluctuate in line with market conditions business practice, generally speaking is also conducive to balance the interests of both parties; but it is not the case for all terms are fair, the individual cases in the application of this standard settlement, may appear unfair situation, in this case it can refer to the quota standard or code of valuation with bill quantity standard settlement of project cost. In a word, because of the design changes to the construction project in the amount or quality standard changes, can not be in accordance with the agreed settlement project original contract, the original contract lost shall be based, lost settlement project price standard; in this case, the people's court should encourage parties to reach an agreement through negotiation, re established accounting standards; if no agreement is reached through consultation, valuation methods according to the local construction administrative departments issued or valuation standard settlement project price; for reference, according to the specific situation of the case, determine the other settlement standard.

Under normal circumstances, shall be in accordance with the contract settlement of project cost, project after the completion of acceptance, the two sides should settlement. Clearing the completion settlement report, generally by the contractor to submit, the employer shall audit. While some employers receive the contractor to submit the project settlement documents are unresponsive or no reply, in order to default or not to pay the project price objective. This serious infringement of the lawful rights and interests of the contractor. In order to stop the illegal act, the Ministry of Construction issued the "construction contract pricing and contract management approach" the provisions of article sixteenth, the employer should be in receipt of completion settlement documents within an agreed period reply. If no reply, completion settlement document is deemed to have been accepted. The contract does not answer to the term expressly agreed, that the agreed deadline for 28 days. This provision to stop the contract payment in arrears without any justifiable reason illegal behavior, protect the lawful rights and interests of the contractor to play a big role. In order to better constrain the parties, the provisions of the Ministry of construction is more operational, "explain" Twentieth stipulates clearly, the parties, the Employer receives completion settlement documents, fails to reply within the agreed time limit, as recognized by the completion of settlement documents, according to the terms of the contract processing. The Contractor's request in accordance with the completion of the settlement documents of project price settlement, should be supported, reflects the full respect for the parties to a contract agreed principles.

(six) in the project cost shall pay the interest

From a legal perspective, the interest shall belong to the legal fruits, arrears occur when starting, but because of the construction project is a payment by the image of progress, many cases it is difficult to determine the date of occurrence of arrears, therefore, courts at all levels for payment in arrears of interest shall be from when, do not know, the standard is not unified. Some from the court of first instance shall before the end of the debate, some from the project cost appraisal conclusion occurred, some from the first proof before the expiry date, some from a judgement force as the starting point, and from the final judgment to determine the construction cost payment date. In order to unify the arrears of project price interest per annum time, maintain the legitimate rights and interests of both contracts, "explain" the eighteenth regulation, interest payable, from project cost per annum. The parties to the time of payment is not agreed or the agreement is not clear, the following time payment time should be: (a) project has been the actual delivery date, delivery; (two) a construction project without delivery, to submit the completion settlement date; (three) construction project has not delivered, project cost is not settled to date, the parties prosecute. This is according to the different performance of the construction contract, the time when the project of interest on arrears is divided into three types. The construction project is a kind of special goods, delivery of construction project is a kind of transactions, one of the delivery of the goods, it shall pay, the money is interest; construction project settlement is not down because of unpaid, in order to make the employer actively performed its main obligation of payment of construction costs, the Contractor shall submit the settlement report time as the starting time of the interest has certain rationality. The parties for settlement of disputes the prosecution to the court, prosecution, the contractor is to legal means to the employer's requirements to fulfill payment obligations when, the people's court shall protect the legitimate rights and interests of the.

(seven) treatment principle of "black and white contract"

In bidding for construction project, some parties in order to obtain improper benefits, before and after signing the contract, the main contents are the same project to enter into one or more copies of the contract and the project cost and other inconsistencies of the contract, if the "black-and-white contract", which should be in accordance with the contract settlement? In the bidding of the project price settlement disputes, a party advocating "black contract in accordance with the" settlement, the other party claims in accordance with the "white contract" clearing, "explain" twenty-first stipulates: should be based on "Bai Hetong" that the record contract as the settlement of project price basis. Why not to "black contract" as the basis for settlement? This is because the laws and administrative regulations, the contract must be through legal procedures, "black contract" although may be the true intention, but because the form of the contract is not legitimate, do not change the "white contract" legal effect. The parties signed the contract, if there is a statutory changes to the contract after negotiation, the contract can be modified; but the contents of the modified contract, should be promptly to the relevant departments for the record, if not to the relevant departments for the record, you cannot become the basis for settlement. In this way, can prevent the illegal behavior from happening at all, is conducive to safeguarding the construction market order for fair competition, but also conducive to the implementation of the law on Tendering and bidding. "Explain" the twenty-first in the "further" a word, expression is the concept of time, including signing "white contract", at the same time before and after the. A "white contract", the supplementary agreement, signed by the two parties of the contract commitment without the record change "white contract" in substantive terms, do not apply "contract law" the relevant contract change situation, belonging to the "black contract", the people's court shall determine that the invalid. "For the record" to the construction administrative departments of the administrative measures, without legal effect of real right publicity; to record is identified as "white contract" basis, main consideration is effective for the administrative department in charge of construction supervision measures, is currently being revised "construction law" to further strengthen the record measures; in addition, as that "white contract" basis for the people's court to hear such cases on record. "Substance" is mainly refers to the contract price, specific conditions including time, quality standard.

(eight) to strengthen the protection of the legitimate rights and interests of the migrant workers

"Explain" the twenty-sixth stipulation is made for the protection of the legitimate rights and interests of migrant workers.

As the construction industry to absorb a large number of migrant workers employment, but because the construction of illegal subcontracting and subcontracting, causing many migrant workers a year of hard and often do not pay. In order to protect legitimate rights and interests of migrant workers, "explain" the twenty-sixth regulation, the actual construction to the claim as the defendant, the people's court may add subcontracting or illegal subcontracting as the parties in the case, the scope of the employer pay project price only in owe to the actual application of workers bear the responsibility. From the provisions of:

One is the actual construction people can contract for the prosecution. From the construction market situation, the contractor and the employer signed construction contract, often the construction contracts or illegal subcontracting to third people, third people is the actual construction. According to the relativity of contract, the actual construction shall stand to the right contract contractor, and shall not to contract claim. But looking from the actual situation, some contractor subcontracts a certain management fees, no settlement or settlement does not claim the rights, because the actual construction did not contract with the employer, which leads to the actual construction people have no way to the engineering section, while the actual construction people cannot get the project clause directly affect the migrant workers wages. Therefore, if the actual construction does not allow people to contract claim, is not conducive to the protection of the interests of migrant workers.

The two is the contractor will build engineering illegal subcontracting, illegal subcontracting, construction contract obligation is the actual construction performance. The actual construction and the employer has the actual performance between the employer and the Contractor's contract and formed a de facto relationship of rights and obligations. In this case, if the actual construction does not allow people to contract claim, is not conducive to the protection of the interests of the actual construction. Based on this consideration, "explain" the provisions of article twenty-sixth of actual construction to a contract claim, but the employer pay works only under the responsibility of the actual construction, if the employer has the project price paid to the contractor, the employer should not be responsible for paying the project cost responsibility. Therefore, responsible for the actual construction project cost range only in pay less in the employer, the employer will not damage the interests of.

Three in order to facilitate the trial, "explain" also states in article twenty-sixth, the people's court may add subcontracting or illegal subcontracting as a party to the case, taking into account the case involves two contract legal relationship, if the process of subcontracting or illegal subcontracting people don't take part in the litigation in the past, many of the facts of the case did not to find out, so the people's court may, according to the actual circumstances of the case additional subcontracting or illegal subcontracting as joint defendants or case third people; the actual construction can the employer, contractor co defendant claim. Such regulations, which can easily find out the facts of the case, to distinguish between the responsibility of the parties, but also is convenient for actual construction people realize their rights.

 

 

 

Correct understanding is the prerequisite to make full use of the

-- "analysis of the problems about the law applicable to construction contract dispute cases the interpretation"

 Zhu Shuying

 

Problem a: according to the "on the law applicable to construction contract dispute cases the interpretation" (hereinafter referred to as the judicial interpretation of the provisions of article fourth), whether we can interpret it this way: the construction contract is invalid, the people's court may confiscate the illegal income by the authority when it has been made; and if it is the case, the Arbitration Commission shall not be entitled to collect?

Answer: I personally think that the handling of such cases is also should take the judicial interpretation of the provisions of article fourth as a legal basis. Because of the contract law, the general principles of the civil law are to the relevant provisions of the collection of invalid contract illegal income. If this part of the illegal income confiscated in court when feasible, not dealt with in the arbitration, is theoretically speaking is different, in practice it is feasible.

The problem with the courts and arbitration are similar in the treatment of priority right problem. At that time, in the Supreme Court issued a related project price priority claim of judicial interpretation, there are about the same problem, namely, the judicial interpretation of the provisions of the exercise of the priority right by the court auction engineering, then the arbitration cases can cut the priority right to be repaid? Then someone said arbitration cannot be cut. Because the contract law the 286th regulation is "the people's court auction". In fact, the arbitration tribunal may award, just ruled over by the court to execute. To confiscate the illegal income and the arbitration ruling by court to perform, and the arbitral award have been executed by the people's court is not in conflict.

Question two: Construction after the signing of the contract, both parties to the supplementary agreement way to adjust the contract price, if both sides agree that the supplementary agreement is not in violation of the true meaning of the two sides. And after the contractor and the supplementary agreement violates the bidding law request on the grounds that the supplementary agreement is invalid, then how to determine the contract price?

Answer: the identification problem of the contract itself is black and white. Judicial interpretation of the provisions, the contract for the record, the parties shall be the substantive content of the contract otherwise agreed, should be based on the contract. Of course, this is not to say that after the signing of the contract can not be changed, according to the provisions of contract law, contract of course can change, only the supplementary agreement on the substantive content changes also need to record, only to re record can be used as the basis. This problem is just like married couples can divorce can get married again, this is your freedom, but each time to go through the registration formalities, fails to perform this procedure is illegal. Of course, black and white contract and is not put on a par with the true meaning of. In practice, the true meaning of some black contract is not the party, is the Contractor as it cannot be helped or to bid or contract projects and the necessity of. I think that the judicial interpretation of the provisions of article twenty-first is intended to regulations limit evasion of law and government to the true meaning of the grounds, this is the law for the incorrect "true meaning" intervention. Therefore, the key process of compliance to substance contract signed supplementary is changed to change the same statutory grounds, and handle the formalities.

Question three: Construction Engineering Contract "demonstration" about the price of variation 31.2 agreed: the contractor in both determine the alteration within 14 days after the change, not the project price report to the engineer, as the change does not involve the contract price changes. Then the following problem: special report the contractor did not change the price in 14 days, but the two sides confirmed the signing of alteration record, monthly progress payment report including the change of project cost amount of the month, whether this be regarded as the Contractor does not violate the contract agreement?

Answer: this relates to changes in visa confirmation and specific operational issues. Some change visa is only to determine a fact, top write "true" or even "receive", this and to determine the specific amount of changes in the contract price are different concepts. Therefore, I think the key is to see change visa procedures should be how to regulate the operation. If the visa specific price changes have made clear stipulations, then as a contract settlement on the basis of add is; if the visa is only determined the concrete facts and uncertain change price, then to drawings for the basis to determine change price, according to the judicial interpretation of article sixteenth and article nineteenth to operate, the parties to the change the price cannot reach consensus, can submit identification unit to determine. It should be noted here that, some of the contract within 7 days to put forward to change the price, but also to see whether the two sides on the 7 day deadline to make a clear agreement. If not, you can see whether the implied terms of contract. If the contract is not agreed or not implied terms, then the 7 day time limit should not be restricted party terms, even after a 7 day period, still can continue to put forward the request change price, its application is on the basis of that time, not more than 2 years.

Question four: according to the judicial interpretation stipulates that the twentieth content, if the parties agreed upon the completion of the settlement period only, and no agreement the contractor to submit final report, "the employer fails to reply within the agreed time limit, as recognized by the completion document", how to deal with? The other: "no answer" how to understand?

Answer: the judicial interpretation of article twentieth of the legislation is intended to restrict the fails to settlement project cost, encourage both parties legal consequences for settlement period stipulated, in order to reflect the "expired as recognized" such a principle, the control of certain employer to delay the final purpose is very important. But if the contract only agreed period without an overdue legal consequences -- expired as recognition, in fact is not make full use of the "judicial interpretation" of the spirit, nature as no agreement. On the "no reply" understanding, I think it is the employer's declaration of the Contractor's settlement price agreed whether or not answered. But, if the contract is not agreed settlement, attention should be paid to the limiting condition is "not justified". If the employer has a legitimate reason did not agree with the Contractor's settlement, cannot of course as "no reply".

Question five: the contract is no design drawings, design side construction contract, but the contract and agreed to "flatly price", then the settlement payments dispute, is based on the judicial interpretation of article twenty-second, not to identify the project cost, or according to the judicial interpretation of the second paragraph sixteenth, referring to the re valuation of quota?

Answer: This is not the design drawings, and no design basis of valuation, but at a fixed price contract engineering is a fundamental breach of the basic rules of construction program. I think, if this is the case, should apply in real settlement principle, according to the judicial interpretation of the provisions of article sixteenth of the processing. As long as the work, to the valuation. Construction of engineering design, construction drawings is your valuation drawings, if there is no design drawings in accordance with the actual amount of construction contractor to the price computation. This so-called "flatly price" is not the subject, if in the determination of "flatly price" when there is no any drawings, there is no contract basis, should be open, to be identified, based on actual projects, called "about uncertainty, package and false", because of the design drawings for the contract is the subject. If it is determined "flatly price" pricing is not only in accordance with the drawings, then in the process of construction drawings to calculated in real terms.

Question six: the contract is not agreed interest, but there are fines below standard, can? The judicial interpretation stipulates: Standard seventeenth interest on arrears be parties to the project agreement, it shall be handled according to the. If the parties have not agreed in the contract interest rate below the standard, and agreed to the payment be standard, how to apply in this case? Is there a limit standard?

Answer: there are many concepts, interest, overdue payment, liquidated damages, damages, double interest, the provisions about the liability for breach of contract and the contract law is consistent with the. The basic way to bear liability for breach of contract of two kinds: one kind is compensatory, a punitive. The parties may according to the specific situation of free contract agreed that several said the liability for breach of contract. The problem is the interest and late fees standard, if the parties have agreed on the two kinds of specific penalty, must from the agreed. In addition to legal issues, the parties have agreed on the relatively high default payment after, when the need to be held accountable, one of the parties that agreed high standards required to reduce, in accordance with the contract law the 114th regulation is may apply to a people's court reduced. As for whether reduced, how to reduce the burden of proof, can be made by both sides to influence the judge or arbitrator of the free heart certificate. Therefore, details about the level of a contract should be agreed by the parties themselves, standard, there should be no restrictions, as long as the parties have agreed to.

Question seven: the parties in the contract is signed without the overdue completion of the liability for breach of contract as specific agreement, in the case of dealing with how to apply the explanation?

Answer: the problems related to the case may be that: the parties in the applicable "construction contract model text", the general clause thirty-fifth "default" provisions of the specific treatment, are not required for the specific agreement overdue completion of liquidated damages in the special conditions of contract, resulting in overdue completion of the liability for breach of the agreement is not clear. This kind of situation, the provisions shall apply the law. The seventh chapter "the liability for breach of contract law" has made a series of corresponding provisions. Judicial interpretation of article eighth "the employer's right" to the contractor overdue completion default liability provisions may terminate the contract, Tenth "principles" to terminate the contract stipulation: "building construction contract, construction works have been completed qualified, the employer shall pay the price in accordance with the agreed project accordingly; the completed construction project is not qualified, the third interpretation of provisions. Due to the breach of the cause of termination of the contract, the breaching party shall indemnify the losses caused to the other party." Standard Practice for calculating the loss is difficult to grasp, processing can by themselves prove the degree of loss, can also according to the requirements of interest calculation. The judicial interpretation of the provisions of article eighteenth of the three specific treatment of interest from standard, respectively is: (1) building project has been the actual delivery date, delivery; (2) a construction project without delivery, to submit the completion settlement date; (3) construction of non delivery, the price is not settled project to date, the parties prosecute. I think the answer to this question is, according to the judicial interpretation of the provisions of article eighteenth of the processing.

Question eight: construction enterprises transfer, loan quality or permits others to undertake a project in the name of the enterprise, due to the reasons for the actual construction of (such as quality, schedule, material), subcontracting construction enterprise is cut shall bear joint and several liability, can sue to the actual construction? Whether it can be supported?

Answer: the judicial interpretation of the provisions of article twenty-fifth, because of quality problems, subcontracting construction enterprises and the actual construction enterprises shall be jointly and severally liable to the employer. This provision reflects the quality first legal status, higher quality supreme significance of contract. Because if the engineering quality of subcontracting construction companies being sued for bear joint and several liability, subcontracting construction enterprises have the right to request the court proceedings, the actual construction as a joint defendant added; if in the lawsuit is not added, subcontracting construction enterprises in the bear joint and several liability, to the actual construction claim. I think, if quality problems are caused by the actual construction of construction enterprise, subcontracting responsibility still enjoy the right of appeal, which is stipulated by the joint and several liability meaning. As for the material construction and construction problems, to see the specific circumstances. If the project quality problem is due to material or because of delays (the case in practice) resulting in defects, a causal relationship is material, construction period and quality problems, and material and time limit for a project is in the charge of the actual construction of, also can be the actual construction of responsibility; if there is no causal relationship in between, do not belong to the judicial interpretation of article twenty-fifth provisions, shall say.

Question nine: as long as the construction quality, the contract is invalid, according to the judicial interpretation of the provisions of article second, the Contractor's request according to the contract agreed to pay the project cost, should be supported. Whether can analogy, regardless of construction enterprise has no qualification, as long as the construction quality, can undertake project, whether this encourage illegal objectively? Whether these Provisions conflict with the law? This should be how to explain?

Answer: the judicial interpretation of the provisions of article second does not have the conclusion, much less that says you have no qualification can also undertake project. If the judicial interpretation of the provisions of article second, should according to the finished project quality is qualified as a watershed for hook processing. Leave a space of judicial interpretation, judicial interpretation of article fifth have a matching rules, the provisions of the contractor said: "beyond the scope licensed by its qualification grade signed a construction contract, obtain the corresponding qualification grade in the completion of construction, the request of the parties in accordance with the invalid contract processing, does not support." The provisions of this article the so-called no qualification of the parties in fact is the actual ability to have contracted projects, this is called qualification in a floating condition. As originally three companies now have been converted to two companies, completed the project without complete qualification, although no qualifications, but the quality is fully qualified, the judicial interpretation is based on the special circumstances, but did not relax the qualifications.

This problem cannot be the conclusion. A similar problem is the total subcontracting between whether it can be applied in judicial interpretation of the provisions of article second, I personally think that the contracts or illegal subcontracting contracts invalid, its treatment principle is to see the finished project quality and. The judicial interpretation is that the contractor if the project quality, can ask the employer in accordance with the contract price. My understanding is that if contracts or illegal subcontracting cause invalid contract, the contractor may still take the project quality requirements stipulated in the contract on the grounds of valuation valuation method, that is, whatever the reason leading to the project contract, the principle of treatment is completed with quality process is qualified or not directly linked to.

Question ten: does the bidding is completed, the fixed price, but the contract was changed to be the price, the contract is effective or not? This record and no record whether have what different?

Answer: this question is very knowledgeable, although only a few words. I think this problem not only relates to the validity of the contract, but also relates to the black and white contract in which a valuation based boundaries, this is a very important problem.

First of all, to see the fixed pricing and price adjustment which one stipulated in the contract and after the record. Usually after the confirmation of the valuation mode is fixed pricing to get the record. If so, then the answer is on a fixed price record for settlement, if you mean the agreed fixed pricing and later changed to be the price, the record unit not found and made a record, then appeared for a non contract conditions. For the record, but not contract, do not belong to the scope of judicial interpretation stipulates twenty-first. Because, to explain the distinction of black and white contract requires the filing of judicial, if the record is not contract, not by judicial interpretation of the provisions of article twenty-first of the processing. As far as I know, change the valuation way before signing the contract after the successful bidder, usually in the administrative departments is difficult to obtain the record. Therefore, the problem of registration does not record whether there are different, the answer is certainly different.

In addition, the tender is complete if it has been determined at fixed prices, and change to price, this is a violation of mandatory provisions of the law. Tender and Bidding Law of forty-sixth provisions of the first paragraph: "the tenderer and the winning bidder shall, within thirty days from the date of the notice, in accordance with the signing of a written contract tender documents and the bid documents. The tenderer and the winning bidder may not conclude any other agreement against the substantial contents of the contract." Contract pricing belongs to the substantive content, therefore, the substantive content of the change, in violation of the mandatory provisions of the law, his behavior should not be protected by law. I understand the judicial interpretation on the basis of twenty-first black and white of the contract, it is this law.

Question Eleven: the construction unit to carry out construction without obtaining the permission of the case, and has been completed, the construction contract between the parties is invalid, then both the responsibility to that? On illegal construction projects, construction units can require the employer to pay?

Answer: first of all, the problem of the proposition itself is not established. There is no legal basis that no construction permits in the contract is invalid. The provisions of the construction permit construction method in the article eighth, the provisions of this law using the words "should be" rather than "must", does not belong to the mandatory provisions, therefore, no construction permits construction relates only to the administrative punishment, must not cause the invalidity of contract. No construction permits in the administrative responsibility, may be affected by the administrative departments of punishment, the responsibility should be borne by the contracting parties to share, because it permits for the construction project, is the contracting parties should be aware of. Secondly, the construction permit in that project, but also as a legal limits, such as the construction permit, the parties to the dispute the commencement date, can the construction permit issuing time as the basis. In addition, not for the construction permit, the project is not illegal construction. Even if the project is building of violate the rules and regulations, as long as the quality is qualified, the project cost of operators, does not exist the problem therefore bear from project cost, project payment should be paid.

Question twelve: Party A fails to pay the image of progress payment agreed in the contract, Party B could be completed refuse delivery completion data, according to the law of contract sixty-sixth exercising counterargument right? If you can, in the event of disputes, Party A Party B delays the counterclaim, Party B should bear the liability for breach of contract? If the employer during the proceedings, has to pay the contractor in the entire project, then, the actual construction of the prosecution case the employer for the works, the employer can exemption?

Answer: the project contract is fulfilling the order of 269th of the contract law, the provisions of the first paragraph: "the contract of construction is the contractor performs project construction, and the developer pays the price of the contract." Therefore, the Contractor shall perform the obligation to completion, the employer shall perform the obligation of payment after. But in the image of the progress payment, when the contractor has completed a phase of the image of progress, the employer shall pay the corresponding image of the stage of the progress. If the employer fails to pay the progress payment, the Contractor shall enjoy the right of defense, can not perform the obligation to construction.

Whether the Counterargument right and how to exercise should see the contract demonstration text, have specific provision to this problem. The model text of twenty-sixth provisions of the fourth paragraph: "the employer not according to the work progress payment stipulated in the contract, both sides did not reach a deferred payment agreement, the contractor may stop construction, bear the liability for breach of contract by the employer." The article is a reference to the FIDIC text in international engineering contracting. This agreement is a key point, that is the contractor to suspend or terminate the contract to exercise the right of defense, there is a contractual collateral obligation is to should notice, if the Contractor shall notify the employer in writing, the employer is not fulfilled, then have the right to exercise the right of defense, the right in accordance with the contract termination further, it may terminate the contract.

Therefore, the answer to this question is, if Party B according to the exercise of the right to defence, he shall not bear the liability for breach of contract. If Party A Party B delays because of the counterclaim, if Party A fails to pay Party B the progress payment to shutdown, then Party B without delay problem, extended time limit for a project can be in accordance with the law. As if there is evidence that the employer has to pay all the project during the proceedings, this only shows that the employer of his fault to take remedial measures, but not so may be waived before the liability for breach of contract; if Party A has paid all works in the proceedings, the responsibility of payment responsibility, but the responsibility of breach of contract is still not so forgiving.

Question thirteen: Based on the judicial interpretation of the provisions of article fifteenth, the qualified project quality appraisal, the construction side for the suspension of the losses caused by the can to the employer's claim?

Answer: this question is a lifting operation well. The judicial interpretation of the provisions of this article fifteenth is: "the completion of the construction project, the parties to the dispute of engineering quality, engineering quality qualified, identified for extended period of time during the period." This shall only said period may be extended, but common sense tells us, the construction work will cause losses, so this part except outside the period extended loss how to deal with? Construction contract in the model text of this question is actually defined. I now read text demonstration general terms of eighteenth "re inspection" agreed: "no matter whether the engineers for acceptance, when the request to test to have concealed works, the Contractor shall, according to the requirements of the stripping or hole, and in the inspection after the re covered or repair. Inspection of qualified, the employer is responsible for the occurrence of all the additional contract price, and shall indemnify the contractor for the loss, and the corresponding extended period of time. Inspection unqualified, the Contractor shall bear all expenses incurred, the project period shall not be extended." I understand, this is the basis of judicial interpretation of article fifteenth. As for the general conditions of the model in the text of the agreement why can become the judicial interpretation of the basis, I talk about my views here.

As we know, there are a lot of judicial interpretation of the provisions, to find the basis from the laws and regulations, do not find. For example, fifteenth, and eighteenth: "interest payable on the day from project cost per annum. The parties to the time of payment is not agreed or the agreement is not clear, the following time payment time should be: (a) project has been the actual delivery date, delivery; (two) a construction project without delivery, to submit the completion settlement date; (three) construction project has not delivered, project cost is not settled to date, the parties prosecute." These specific problems in judicial practice and the objective requirements of unified answer, the answer in general terms the model in the text have accordingly agreed, but also comply with industry practice. The text of the model name should be "text" demonstration of the construction contract, by agreement, the general provisions and special fund of three parts, now the industry is being used in December 24, 1999 by the national industry and Commerce Bureau and the Ministry of construction in 1999 313rd document promulgated. The legal status of general terms in demonstration text belongs to industry trading habits, by the competent department of the government recommended has certain authority. The contract law of our country, sixty-second of the first paragraph of: "quality requirement is not clear, in accordance with national standards, industry standards to fulfill; no national standards, industry standards, according to the usual standards or fulfilling specific standards for the purpose of the contract." Therefore, the judicial interpretation made processing standard many specific problems and principles adopted by the general terms of the contract model text in the process of. In this example, the answer is very clear, if the shutdown due to quality problems caused in the process of construction, see the identification result and decide, if the quality is qualified, so all the loss is borne by the employer, and the project period shall be extended accordingly; if the quality is not qualified, for processing the reverse.

Question fourteen: Based on the judicial interpretation of article twenty-fourth, construction behavior and immovable estate is located is the difference between what?

Answer: This is a problem of understanding should cause attention, the smooth progress of the accurate understanding of impact cases. Article twenty-fourth of the judicial interpretation of the content is only one sentence: "construction contract dispute in construction activities for the performance of the contract." But if the relevant provisions are not familiar with the Civil Procedure Law of the words, their understanding is more difficult, and accurate understanding of the key involves exactly the problem.

First of all, real estate dispute belongs to the exclusive jurisdiction of dispute, must go to the place where the real property is located the court to go to court, for example, a Beijing resident in Shanghai to buy commercial housing, the housing of immovable property. Therefore, if the court can only to Shanghai, this is called exclusive jurisdiction. The construction contract, according to the judicial interpretation of the provisions of article twenty-fourth, does not apply to exclusive jurisdiction, which is the Supreme Court has made clear: this type of contract does not belong to real estate, it is only applicable to general jurisdiction, not to the project site. I understand, the construction contract belongs to the processing contract, processing contract is a more special. If you understand it, many problems will be smoothly done or easily solved. For example, according to the judicial interpretation of the provisions of article sixth, underwritten by effective treatment principle, this is because in the processing of contracts, there is a class called stock processing, are prepared by the processing of raw materials and processing fees were processed, this is equivalent to the contractors underwritten construction.

Secondly, the building is the location of the specific, unique, and construction behavior is not specific, only. We know, construction is a process, including survey, design and construction. If taken in construction design, procurement, construction general contracting mode, design, procurement, construction is not likely to be located in the building; for example contractors underwritten construction, the source of his underwritten capital is likely to come from the contractor company is located in the bank, such as, construction and engineering are not in the same more. Therefore, the judicial interpretation of twenty-fourth has been clear to the parties the right to choose the action, when the construction activities and the project site is inconsistent, the parties may apply to the people's court construction activities to exercise the right to appeal.

Question Fifteen: project completion settlement, the employer has paid the project delay, written consent of the employer and engineer, after the employer can to pursue the liability for breach of contract period?

Answer: this question relates to the engineering claims settlement after the key is to look at the project, the settlement of project delay is the nuclear button works, or whether the exemption from liability for breach of contract. The answer to this question, in the so-called "written consent", said the time problem is exempt from the responsibility of default meaning, is the main basis for engineering settlement can continue to claim.

In practice, time limit for a project in the construction process of delay has a variety of situations, there is the employer's responsibility, also has the duty of contractor, or the two sides have a responsibility, as well as the contract both sides of any party with third parties such as subcontract, material suppliers common responsibility. Therefore, in the final settlement, the parties will carry out comprehensive assessment, the responsibility to coordinate, finally draw a mediation opinions, but such mediation opinions should be clear on the time delay responsibility parties, parties often add a sentence in the document or the written settlement agreement, called "the other non controversial". If so, then either party may not put forward period after the breach of contract claim. But there is also the opposite situation, the final settlement agreement does not involve time limit the liability for breach of contract, which cannot be inferred from the personnel must not be prosecuted period responsibility of breach of contract, liability for breach of contract because there is no time to be punished, not destroy the investigation period responsibility of breach of contract rights, the right to sign the settlement agreement after two years of aging when the parties have the right to exercise. CIETAC (refers to China international economic and Trade Arbitration Commission) has handled such cases, the final settlement of the claim is the final part after, get support.
　　Question Sixteen: the control of judicial interpretation of the provisions of article twenty-sixth, in judicial practice, the actual construction may not be industrial and commercial registration of migrant workers team, how to determine the subject of litigation? If it is a joint action, the actual construction of individual and illegal subcontracting between creditor's rights should be labour rights, whether that means labour rights without labor arbitration can enter the proceedings?

Answer: this question is very fine, very specific. I understand, the Supreme Court in the judicial interpretation, involving is difficult to so specific treatment principles. Of course, this problem is a practical implementation of judicial interpretation of the operating problems. I think: the actual construction including the construction service enterprises as the legal person, unincorporated organization workers teams or small team, as well as the natural person is the individual migrant workers. The actual construction since it contains these three kinds of circumstances, does not belong to the general labor dispute; moreover, the actual construction of labor remuneration is a part consists of direct cost in the project cost in labor costs, to resolve this part of special labor payment disputes, the inevitable demand and solve the arrears synchronization. I think the actual construction of human recourse is not a simple labour rights, a part of, but works, therefore, the actual construction of human recourse labor remuneration according to the judicial interpretation of the provisions of article twenty-sixth, can directly enter the proceedings.

As for how to determine the subject of litigation, that should be the actual construction of subject of action, I think, if it is a legal entity, which can be directly to the name of a legal person charged; if workers team, by other economic organization form, by labor contractor as responsible for prosecution; and if individuals or groups of individuals of migrant workers the prosecution, by natural persons and groups represented mode. In a class action lawsuit, no matter the sub way is effective, can according to judicial interpretation program the provisions of article twenty-sixth prosecution, the actual construction of the legitimate rights and interests should be protected.

Question seventeen: general contractor and subcontractor contract agreed to pay the engineering, construction side after the contractor to pay the subcontractor's works, the contractor to build the party fails to pay the project by not paying subcontractor payment, the reason is established? Effective?

Answer: this question is different from the previously discussed the subcontractor and the actual construction of labor remuneration, also do not belong to the judicial interpretation of the provisions of article twenty-sixth of the actual construction of special protection case. Judicial interpretation also does not have this problem, a total of 28 articles of the answer, it can only talk about the personal views. In my opinion, this problem should first look at the total contract the parties agreed to the provisions of the law.

The questioner says, the total contract "after the construction payment to the engineering, the contractor to pay the subcontractor's works" agreement, the agreement itself is legal, both sides should abide by the agreed total subcontracting. In addition, our construction method with the corresponding provisions of legal liability of the contractor, construction law stipulates that the twenty-ninth total sub sub project to the construction unit shall bear joint and several liability; construction law the fifty-fifth regulation Contractor shall subcontracting engineering quality shall bear joint and several liability. Joint and several liability should include the rights and obligations of two, completion of the subcontract works and to ensure that the sub project quality is the common obligation of both the total package, for the construction unit of the project is the common rights, therefore, such as the total subcontracting the two sides have agreed to be received the construction unit project funds to pay the subcontractor works, is the embodiment of the joint right project funds for a special agreement, comply with the relevant provisions of this Convention of construction law. As far as I know, in the judicial practice, if the total package of contract such as the questioner referred cases, judges usually this agreement according to total contract to handle the case.

Question Eighteen: the two sides signed the contract, due to the reason of Party A does not actually perform the contract, claim to, what is the basis for? Percentage? If the profit claim, the court will support?

Answer: the causes of delay start because of Party A, the contractor is entitled to claim. First of all, China's contract law the 113rd regulation: where a party fails to perform the contract, thereby causing loss to the other party, the amount of compensation shall be equal to the losses caused by the breach of contract, including contract can benefit. Therefore, if due to any reason party does not actually perform the contract, the employer is default, the contractor may propose claim for breach of contract, include profit claim, which is the legal basis of such claim. Secondly, "" demonstration text of construction contract general terms of Clause 11.2 has the corresponding agreement, the terms agreed: "because the employer does not agreed in the agreement on the commencement date, the Engineer shall notify the contractor in writing, to postpone the start date. Because of the deferred losses caused by the employer shall indemnify the contractor for extended period of time, and the corresponding." This clause in the contract if party a delay in construction, its liability in damages for breach of contract, should also bear the responsibility of the extended time limit for a project, so the time loss also caused by Party A. This is the answer to this question on the basis of the contract. Of course, this mainly refers to the contracting parties have applied the model text; if the text is not suitable, we still can be in accordance with the provisions of the contract law came to the same conclusion, because the general clause demonstration text as the terms and conditions of trading habits is formulated in accordance with the relevant provisions of contract law.

The latter part of the answer to this question, I think it is positive, which is according to the expected profit can claim, provided the so-called expected profit is the contract law can get benefit. As for the percentage, is a bit complicated, its treatment principle is from an engagement, for example, some contract specific agreement such as the issue of compensation and damages the specific proportion; if there is no agreement at this party, you can according to the requirements of judicial interpretation provisions of article sixteenth of the reference quota rate calculation the valuation method is released, local building departments that quota standards, regulations have profit quota standard fee, according to the different engineering category or scale, the rates were 4% to 9% differ.

I think, according to the problems raised by the case, the Contractor's claims based on the above reason, is able to get the support of the court, as a contracting party at least can argue.

Question Nineteen: now there is a situation, in the construction, the employer often avoid supervision, change the design units directly verbally notify the contractor for construction of a part of the standard design changes or construction contractor, ask the employer to supplement written materials, the contractor can not afford to ignore, execution. In the process of implementing additional proposed contract price, supervision and the per capita not sign. The contractor has completed this change project price, but till later time has passed, the situation in the law have the favorable provisions, or how to protect interests of the contractor?

Answer: This refers to the supervision or the employer proposes to the Contractor's design changes or construction change their visa is not recognized, this is the nineteenth case of judicial interpretation. The judicial interpretation of the provisions, there is a dispute between the parties to the project amount determined in accordance with the visa form, written in the process of construction. The second half sentence mean, as long as the contractor can prove that the consent of the employer and its construction, even if no written visa, the contractor may be proved by other evidence of actual engineering quantity.

I think nineteenth is very good, it to fulfill contract relationship in practice engineering visa and engineering claim here clearly, but also for the first time in a legal document with the enforcement of the project visa and claim, the second half sentence case refers to the project claim for. A period of claim, this is an urgent need to rise to the contractor attaches great importance to the legal issues, often encounter cases over prescription claims can not claim. There are three facts about prescription claims. First, the parties have agreed on the claim period, not at the same time expired cannot claim, the claim shall be the claim incident after 2 years; second is the parties agreed period of claim, and provide more than the prescribed time cannot claim, the claim time is agreed deadline, overdue void; the third is if the parties have not stipulated the claim, which belongs to the period of claim an unknown, according to the provisions of the general principles of the civil law and contract law article eighty-eighth paragraph second of article sixty-second paragraph fourth, the contractor has the right at any time to claim, without the limitation of.

Question twenty: I am so understanding, you are correct: the contract in black white before the contract, can think all invalid, because both parties are colluding behavior in bidding. Black white contract after the contract was signed in the contract, white, black contract invalid.

Answer: this understanding is very accurate, black contract is illegal in signing and after winning the bid, the bid before, sign is in before bidding collusion, signed in the bid at the same time or after winning the bid is changed the substantial contents of the contract. The tendering and bidding law has corresponding mandatory provisions of the two conditions. There is a mandatory attribute of the problem itself, that is to say whether it belongs to the mandatory civil law sense. Therefore, we should pay special attention to the judicial interpretation is: twenty-first from only can be used as a basis for settlement provisions, and not directly determine the black void the contract. Judicial interpretation embodies the guiding ideology of the tendering and bidding law serious enforcement, because there are many bidding operations exist covert set strokes, the black box operation, and therefore corruption. Although the actual operation of the illegal behavior of many, but in the judicial practice the invalid cases but not much. This is because the parties difficult burden of proof. We should pay attention to the hidden defects of this kind of case of black and white in the contract illegal bidding and bid is invalid, and from the evidence collection and fixed, preservation efforts.

Question twenty-one: the actual construction people have no business license, construction qualification, signing an invalid contract, to the third party in third party procurement of materials, materials, I would like to ask: the employer will not part of the materials, bear joint and several liability?

Answer: This is related to the contract on the problem. The actual construction should not exist purchasing material, because the actual construction people merely provide a service, should not involve materials, labor contract itself is not free kit materials contract. But in practice the existence of the subcontractors to subcontract for real name, by the actual construction situation of purchasing materials. I think this problem should not apply by analogy to the judicial interpretation on twenty-sixth the employer shall assume corresponding civil liability, unless otherwise provided by law. At present, did not see the legal provisions, this aspect of it, according to the contract relativity principle, I think the judicial interpretation of the provisions of article twenty-sixth the employer shall not the introduction to the actual construction material procurement payment responsibility to pay the conclusion.

Question twenty-two: according to the judicial interpretation of article twenty-sixth, the actual construction has the right to sue the employer, whether through legal principles about the prosecution of three elements of the civil procedure law? The employer is the most advanced in a specific engineering contract, if the employer has no fault (has paid all the project), the actual construction (farmers project team) who contract beyond one or even two level charged with no contract relationship, causing the employer v. tired and image damage, the actual construction and the contractor who bear the responsibility?

Answer: first of all, as I have explained, the judicial interpretation stipulates that the twenty-sixth did not break through the principle of privity of contract, because the contract law the thirty-sixth regulation, although the parties concerned have not signed a written contract, but a party has fulfilled the main obligations accepted, as the establishment of the contract. The actual construction labor and materialized in the engineering, and the employer not only received the materialized labor should pay the corresponding salary, the civil legal act is the actual construction and the human in fact, although there are the contractor or subcontractor. The judicial interpretation to draw boundaries is: as long as the employer in engineering cost, because of the actual construction of wages is included in the project cost, the employer shall be liable for the payment, so the actual construction people can sue the employer. I think, judicial interpretation of the provisions of article twenty-sixth is reasonable, the employer only in the project cost of the actual construction responsibility, has to draw a line.

If the employer does not ask questions involved in the project price, shall not undertake the actual construction of money. The employer is owed to the court, the. In most cases, the project cost has been paid, the two sides is controversial, is often called the employer contractor arrears, and the people that were paid in full, the need to have evidence that. Of course, if the employer does not default project money, then according to the judicial interpretation of the provisions of article twenty-sixth, the actual construction contractor on is wrong, because he only up to third people. The employer can provide evidence that has paid the full price, because if the lawsuit to take security measures on the property of the loss, bear the responsibility should be wrong preservation is a claim of the parties. The actual construction because of abuse of litigious right and liability.

Question twenty-three: according to the judicial interpretation stipulates that the twentieth content, if the parties agreed upon the completion of the settlement period only, and no agreement "fails to reply within the agreed time limit, as recognized by the completion document" how to deal with? "No answer" how to understand?

Answer: this question is of typical significance in the judicial practice, there is now a contractor to submit the settlement letter, 28 days after the contractor did not reply, with judicial interpretation of the provisions of article twentieth of the indictment, asking the court to submit settlement to support their claim. This understanding is not correct. Judicial interpretation of article twentieth of the legislation is intended to prevent the delayed settlement, suggested that the parties to the settlement agreement deadline, and at the same time agreed over the period as approved by the contractor to submit settlement. The key is "submitted for approval of the contractor agreed settlement", implied terms expired is commonly referred to as "obsolete". If not specified in the contract expired, only agreed deadline agreement without legal consequence is overdue, nature as no judicial interpretation of article twentieth required by the agreement, will not apply the provisions of this article. As to how to deal with, in the judicial practice, the general treatment is: if both settlement consensus cannot be reached, you can submit the identification unit identification, the identification conclusion as legal basis. On the "no reply" understanding, attention should be paid to the intention of judicial interpretation is the answer, did not say if the employer approval, reply that the overestimation of settlement in the high count adjustment, should think the employer has given a reply.

Question twenty-four: both parties are two independent construction Incorporated Company, Party B has no capital (Beijing) bid qualifications, in a project bidding, both sides reached a cooperation agreement, the agreement, Party B to assist Party A to bid, if successful, Party A should be a certain percentage of the engineering construction by Party B (by region, with the main structure), but shall not charge any fee. Excuse me: (1) Party A will be part of the project construction by Party B, whether to belong to the main sub projects, the two sides signed the cooperation agreement effective? (2) if Party B is the equity unit party, this act is legal? (3) during the construction period, Party B has been made in Beijing bidding qualification, conclusion and how?

Answer: for the first question, if the parties expressly agreed in the contract after winning the bid will be handed over to Party B the construction project with the main part of the project, then certainly belong to illegal subcontracting, the agreement is invalid. Because this protocol in clear violation of mandatory provisions of article twenty-ninth of the building. The first section of the last sentence clearly stipulates: "the total construction contract, construction of the main structure construction project must be completed by the general contracting unit itself." The Contractor shall not subcontract the project to the construction of other units. For this problem, the State Council regulations on the management of construction engineering quality of the Seventy-eighth section second is specified, it is recommended to check explicitly.

On the second question, if Party B is equity units of Party A does not affect the establishment of illegal subcontracting practices. The law is the main part of the project shall not subcontract, and whether or not the equity units, so the participation units also do not affect the protocol is therefore recognized as invalid.

I think about third questions, go to the capital, qualification and qualification of construction enterprises are two concepts, to go to the capital quality, there is no mandatory provisions of laws and regulations, because Beijing bidding qualification is not a legal qualification, but the local government administrative restrictions, this measure along with the market development has been or will soon be canceled, which in the judicial practice there are precedents in. But here a little attention to, now is about construction enterprise qualifications, if some units of the original no construction qualification, but made in the process of construction qualification, then according to the judicial interpretation of the provisions of article fifth, can be found valid contract.

Question twenty-five: (1) the judicial interpretation in the first paragraph first provides two kinds of invalid contract. I think that in essence, two cases are do not have the ability to engage in the contract. However, fifth only recognized second has not approved the first case, the Is it right? Unfair, if it is completed in the first obtained the qualification, I think the contract should also be deemed to be valid, in the formulation of is how to consider? (2) the Supreme People's court president Huang Songyou and Zhu teachers, there are many files are mentioned on the wages of migrant workers, excuse me, to the urban residents is not suitable protective regulations? Why make restrictive description on the subject? The workers get paid right should be consistent, the problem how do you understand?

Answer: this question asked two very interesting. The first question should be asked to draft judicial interpretation von judge. Of course, since the problem placed in front of me, I would say that I know. I also think that the judicial interpretation of the provisions of article first of the two conditions, namely the Contractor fails to obtain the construction enterprise qualification, or beyond the existing level of qualification, if completed in the first (accurately should be contracting parties of the dispute before) the contractor has made the corresponding qualification, on the basis of the correction of validity of contract the principle, can be applied to the judicial interpretation of the provisions of article fifth. Because the qualifications for contracting projects, without qualification or exceed quality, are no corresponding qualification, and now the judicial interpretation of the scope of article fifth, from the scope of validity of correcting the determined view, only the two conditions beyond the qualification grade, but according to the Supreme Court in "some issues about implementing the real estate development business case real estate management law" and the "interpretation of several issues concerning the application of law in the trial of commercial housing sale contract dispute cases the interpretation of" the two judicial interpretations of the relevant provisions of the contract validity correction, I personally think that the judicial interpretation stipulates that the fifth can be applied to first in the first paragraph of the former a situation.

As for the special protection of migrant workers, "in fact, the judicial interpretation of twenty-sixth words is the use of" actual construction people ", but did not use the term" migrant workers ". My point in class has repeatedly said. Migrant workers included in the actual construction of the scope of subject, its interest refers to remuneration. Because ninety-seventh of the civil procedure law stipulates "execution" situation including recourse labor remuneration, migrant workers and city workers are workers, and even the company's staff, officers, including managers, are providing service personnel, the labor remuneration of nature, are all the same. The judicial interpretation of the "twenty-sixth words is the actual construction", is refers to the non engineering contractor, enterprises, labor contractor but actually taking services, or workers, including migrant workers. Therefore, I think, a lot of argument now include media reports, just emphasizes the problems of migrant workers, in the main, intention of judicial interpretation refers to the laborers remuneration, not limited to migrant workers.

Question twenty-six: case introduction: Beijing without a legal qualification of A company to borrow a qualified Jiangsu B company's qualification, the construction of a project in Tianjin, A B agreed to pay 5% of the management fee, added to the A. The project has been acceptance, but B hold most settled project, A repeatedly asked the settlement, B company to borrow funds from both sides not illegal settlement. Q: (1) the Tianjin whether the court has jurisdiction? (2) A B paid 5% outside the project whether there is sufficient basis? Should pay attention to what the problem? (3) the A is not the actual construction qualification? Please elaborate on the actual construction concept.

Answer: this question to know and the last question of whether or not the same person, the problem is related to the last question.

My point: 1 of Tianjin court has jurisdiction, because A can fully construction behavior occurred in Tianjin Tianjin grounds, sue to the court of competent jurisdiction, the court when there is no obstacle. 2.A asked B to pay part of the contract price more than 5%, there are two aspects of the problem, because the loan quality engineering contract is invalid, invalid contract, A does not have profit, but the profit is too much, to check the quota standard. At the same time, contract, loan quality is B the company management fees should not plan to take, but the actual construction management of A company costs, combined with the actual qualification grade A, extract the corresponding cost, cannot enjoy all the management fees, to give, to many, is decided by the judges according to the case of discretion. Here we must note: this problem relates to the judicial interpretation of the provisions of article fourth, A company by B company performance, which belongs to the invalid behavior, and belongs to the confiscation of illegal income of the parties can. 3.A company is belong to the actual construction. My understanding of the legal construction in judicial interpretation of subcontract called subcontractor, and subcontracting and subcontracting situation really units or individuals engaged in construction is called the actual construction, then the problem of A company is to subcontract the actual construction condition. As for the concept of actual construction, there are no corresponding provisions in the law and judicial interpretation, I understand is: when the contract is invalid under the premise of subcontracting or illegal subcontracting or borrow qualification actually engaged in the construction of the sub contractors, which is the actual construction.

Question twenty-seven: in arrears v., employer claims for project quality request to reduce the payment of the price, through put forward counterclaim or through the defense claims? Can you talk about the employer in accordance with the interpretation of eleventh claims by the price paid with your experience, what is the focus of the burden of proof? In the case of project completion and acceptance, quality defects and how to prove the contractor and sub contract?

Answer: This is a question relates to three problems, all levels of.

The first problem relates to the understanding and action skills v.. I think we should put forward counterclaim to solve. Because the requirements to quality defects and reduce the payment of the price, relates to a relative to this procedure requires payment of independent claim is the responsibility of quality defects, the identification of specific money involved issues of responsibility quality defects of the trial and responsibility, the money was a collegial panel found after, will be deducted in the Contractor's payment in arrears the price of each other. If only that no defense and counterclaim request it, the people's court is unable or difficult to support the employer's requirements for reduction project claim, because you did not request, and the judicial interpretation of the provisions of article eleventh is for the employer's request. Of course, if the counterclaim aging, the employer can also be a separate prosecution, request, asking the court to the two case combined and tried to solve. In judicial practice, usually the merger trial. Of course there is a prerequisite, that is the judicial interpretation of the provisions of article eleventh "contractor refuses to repair, rework or rebuilt", if the contractor has the quality defects to the standard stipulated in the contract, it is a different story.

The second problem relates to the discretion of the judge. Any quality defect should pay reduction projects, how to reduce pay, less pay, no specific legal provisions and judicial interpretation, are only by the judge according to the circumstances of the case to decide. As the employer in the burden of proof liability money quality defects, if there are special stipulated in the contract, as long as the quality is not up to the standards stipulated in the contract that can be; and if the contract does not have the corresponding provisions, only through quality defects liability identification (including defect rectification costs) to prove that, otherwise the judges to order to pay the specific amount.

The third problem is hanging. Because the project after the completion of inspection, quality in general has proved that the contractor in accordance with the contract agreed by the parties, or that the employer has that quality completion of the project, has met the requirements or comply with the contract, otherwise would not have passed the acceptance. The judicial interpretation of the provisions of article thirteenth, if the project without approval, the developer has been used, as approval has passed, the contractor assumes only the foundation and the main structure of the warranty liability. As for what to prove, the effective way is to entrust the employer identification unit qualification assessment, if identified quality is defective, the appraisal report is evidence of that.

Question twenty-eight: the LUT acceptance engineering, how to determine the time for completion?

Answer: Generally speaking, LUT is part of the acceptance to delivery, not through the part of the project acceptance of the left, until the meet the conditions and acceptance. LUT is part. Throw in the text of the model contract thirty-second seventh provisions, I read: "due to special reasons, the employer for part unit construction or completion of the project area LUT LUT completion, both parties shall enter into agreements, clarifying the responsibilities of the parties and the project cost payment method."

As in LUT completion, how to determine the completion time, I think, since it is a partially completed acceptance, then completed only part of the completion of the project to determine the project completion date, part, in order to jilt agreement signed time to determine the completion of this part of the project in time, and for the entire project, all of its the time for completion, should be based on LUT engineering be passed acceptance for the completion of time to determine the final. As for how to identify the specific date of completion, the former has the same problem, also have to reply, no longer.

Question twenty-nine: engineering due to the Contractor's delay, contractor for the project. The limitation of action is calculated from the time of completion as agreed in the contract, or from the actual completion date?

Answer: I think the aging schedule and recourse project contractor's default no direct relationship. The contractor for the project claim against the employer fails to timely billing and payment behavior, relates to the Contractor's action from the project after the completion of the contract completion date of settlement period.

The contractor in the contract or the actual completion time, are not as prescription starting time for project. The starting time for aging project action, should be the employer shall pay without payment time. The project has been completed, the employer shall pay the is project settlement. According to the "model text" provided for in the first paragraph thirty-third, the Contractor shall within 28 days after the approval by the employer to submit within the completion settlement, according to the provisions of article thirty-third paragraph third, the employer should be in receipt of the Contractor's settlement after the approval and payment within 28 days, that is to say, the contractor practice after the completion of the contract to complete clearing period, to the employer within 28 days after receipt of settlement, so the contractor for the project time, twenty-ninth days from the completion of settlement calculation of received people. Judicial interpretation of the provisions of the contract fails to settle the consequences, but also refers to "the Employer receives completion settlement documents, not reply" within the agreed time limit situation, but this provision, it can be used as the questioner answer.

Question thirty: (1) construction contract is the employer terminates (fault not sure) the contractor can apply to all the arrears, including contract agreed not to the term of payment? The contractor will assume responsibility for the warranty, the warranty gold and how? How to calculate the time limit? (2) the subcontractor has no priority?

Answer: on the first question, the accurate answer can only have been identified in the fault liability. The contractor who are at fault, it shall bear the corresponding responsibility. Now in the premise of not determined fault, suggest that the contractor to analysis of existing materials and evidence, have a look you have no fault. Of course, even if the contractor is at fault, the employer in the works, under normal circumstances (exclude cannot rectification unqualified situation) should be paid, that is to say, the contractor can still claim rights.

Specifically, the construction contract was suggested by contractor and termination (end only refers to does not fulfill the contract after the invalid), the contractor has the right to require the employer to pay all of the completed project cost, including contract agreed not to the term of payment, for example, the contract progress payment to pay 50%, to pay the other 50% to be completed, but the contract was terminated, the contractor has the right to require the employer to pay another 50%, the reason is that once the contract is terminated, the original contract agreement did not expire debt has therefore into debt. The Contractor shall bear the finished project warranty liability, warranty liability itself is self after the completion of the project within the contract is terminated, the completed, part of the project that is regarded as the completion of the project, the contractor on the part of the project has been completed for the warranty is expressly provided in law. As for the bonds, and shall return the contractor for the termination of the contract, there is of course a prerequisite, the finished project quality is qualified. As for how to calculate the period, to see the node schedule, contract has no image stage if, can judge whether the responsibility of the Contractor shall, if not, can only be considered on both sides of the fault size.
   The second problem appears and not the last issue directly related. This is a complicated problem. According to the provisions of article 286th of the contract law, the subcontractor does not project priority of payment. Because the provisions of the 286th priority rights only refers to the contractor, and subcontractor is not the contractor. But in the practice of project contracting and subcontracting situation is more complex, some of the sub contract, by the contractor and sub contractor together with the contract signed, the subcontractor status and the contractor of the same, I believe that the three party to subcontract, the subcontractor and the contractor also enjoy project priority of payment. If the contract is by the general contractor and subcontractor signed between the two parties, the subcontractor because not contractor, subcontractor does not enjoy the project priority of payment.

Question thirty-one: (1) the housing decoration, the decoration (transformation) whether the project belongs to the legal category of construction contract? Whether the 14 judicial interpretations now? (2) the following situation, how should understand: housing property housing will be leased to the lessee, the lessee under the appointed for the housing renovation (housing area of 15000 square meters), the lessee through bidding, decoration signed construction contract with a decoration company, and agreed to by the underwritten construction decoration company. In the decoration, because of the default by the lessee is the housing property to lift the lease contract, the lessee fails to pay the decoration and the evaporation. I would like to ask: decoration companies can to enjoy the right to claim the decoration on the grounds to the housing property? Can refer to the judicial interpretation of the provisions of article twenty-sixth of the execution? Or in this case handling thought other? Please describe in detail. (3) the provisions of judicial interpretation of seventeenth owed engineering requirements of interest, Feng said the judge in addition can also claim responsibility of breach of contract, the liability for breach of contract in accordance with the requirements of the overdue loan interest rate is included (2/10000 points) to pay liquidated damages? The rules will break the loss compensation only "civil liability in our country" (not including the consumer rights and interests protection law) the old regulations? (4) the building fire facilities are not standard, whether can be delivered? If the employer has not found the case acceptance, and then rented to others, the lease contract is invalid, can terminate?

Answer: This is a question of 4, but also are not related. I am now a answer.

The first problem relates to the definition of the construction contract in judicial interpretation. In this regard, the judicial interpretation itself does not have the corresponding provisions of the contract law, but the 269th clearly states: the construction project contract is the contractor for construction, and the developer pays the price of the contract. Construction contract includes engineering survey, design, construction contract. The judicial interpretation with special emphasis on the three kinds of construction engineering construction contract in the contract. I understand the housing decoration, the decoration construction contract (transformation) belong to the category of the construction contract, should apply to the judicial interpretation. But in judicial practice, housing decoration, the decoration (transformation) contract situation is more complex, for example some decoration, decoration contract is not entrusted by the developer, but the lessee or leased client; some families decoration, decoration construction contract is. As far as I know, the Supreme People's court had the same problem letter business Ministry of construction, the Ministry of construction reply is two excluded, namely the decoration, decoration contract, the project ownership is not clear or family decoration, decoration contract, does not belong to the construction contract, therefore, these two kinds of decoration, decoration contract do not apply this judicial interpretation.

The second problem, many similar cases have appeared in judicial practice, the courts treatment is not the same, judicial interpretations are not targeted explanation. I think the problem is with the judicial interpretation of the provisions of article twenty-sixth of the content is not the same. In my opinion, the key to this case is the decoration company in the contract signed decoration housing property is knowing, and decoration property and the tenant lease contract on the accession to the agreement, if the property rights of people agree with the contract decoration, decoration can request to judicial interpretation stipulates that the twenty-sixth direct prosecution of the property rights of people, the property is the real; and if the property rights of people do not know or do not agree with the renovation contract, according to the doctrine of privity of contract, decoration companies can not be directly charged property. If decoration material belonging to the accretion of property and the tenant lease contract is not agreed, the decoration company is right on the principle that the rights of property prices to the people, because the real right law of our country has not yet been promulgated, success, discretion to judge; and if the decoration of accretion of property owner and lessee the lease contract between the lessee as damages in breach. (in practice many of the contract for such agreement), decoration companies to claim the rights to the property rights of people.

The third problem, judicial interpretation of the provisions of article seventeenth of the interest, I hadn't heard Feng judge reply, and unknown Feng's opinion. I think, the employer owed project payment shall bear the liability for breach of contract, and the payment of interest is the specific methods, fundamental breach. If a contract agreement in interest bearing, it shall compensate for the losses or other liability for breach of contract, it should be from the agreement, this may be the original ideas of von judge.

On the fourth question, China Fire Prevention Law stipulates clearly that the tenth, fire did not pass the acceptance shall not be delivered for use, this is a mandatory provisions. But the fire of the mandatory standards, I think part of the effectiveness of standard and relates to public safety, so engineering fire does not meet the standards shall not be delivered for use, if the delivery is invalid, so have the lease, the lease is invalid. As for whether to terminate, the fire problem can rectification for different treatment. In my opinion: Fire defect is quality problem, should according to the judicial interpretation of the provisions of article third for processing.

Question thirty-two: the judicial interpretation of article twenty-first, the true meaning is not white contract both sides, expressed as conspiracy of hypocrisy, white contract is invalid or not? White contract as invalid, why still white contract settlement payments? The white contract settlement payments, and the black contract (the two sides expressed their true meaning), a party will be unjust enrichment, whether the law should not be the protection of the unjust enrichment?

Answer: according to this question, I want to say is: it is not for the judicial interpretation of the amendment, but to discuss how to accurately implement the judicial interpretation, therefore, such a question is not to be discussed. In addition, the questioner's point of view is biased. I think: the black and white two copies of the contract, whether or not by what the reason, from the formal point of view, because have stamped, signed signature therefore, is true. Moreover, the judicial interpretation of contract itself is not white, black contract is invalid, but the difference between the designated in the presence of black and white contract case settlement. The so-called unjustified enrichment, which is not fully in accordance with the law or contract, make others damaged their interests. In accordance with the contract agreed that the project price settlement white contract, it is in accordance with the law, protect the legitimate rights and interests of the parties of contract engineering. Therefore, I think that the judicial interpretation of the provisions of article twenty-first is completely correct, but also the judicial interpretation is one of the important contributions of black and white contract problems one of the four major problems found in the construction of law enforcement inspection solution by the National People's congress.

Question thirty-three: a black and white contract, in accordance with the provisions of article twenty-first, in the bidding, the parties entered into the construction contract and for the record, the substantive content of whether they are able to modify the contract in a supplementary agreement? For example, changes in the original contract price. If you can, whether the record is needed? If not, whether the breach of contract law on mutually agreed by both parties, can change the contents of the contract provisions? Secondly, after the performance of the contract process, the construction quantity decreases, both the alteration of the contract, reduce cost, can be set up?

Answer: this question relative judicial interpretation provisions of article twenty-first, mention is the level of.

I think, this problem relates to one of the key differences between different substantive content, namely the change of contract and normal contract change. Here are two different legal provisions, the tendering and Bidding Law of forty-sixth provisions of the first paragraph: "the tenderer and the winning bidder shall, within thirty days from the date of the notice, in accordance with the signing of a written contract tender documents and the bid documents. The tenderer and the winning bidder may not conclude any other agreement against the substantial contents of the contract." Contract law article seventy-seventh stipulates: "the agreement of the parties, the contract can be modified. Legal, regulations to change the contract shall go through the approval and registration procedures, such provisions." Limit the prescribed in article two is that there are no legal reasons, namely the legal reasons, the contract cost, time or the agreed quality change. As for the change of normal performance of the contract process, including the change of major design changes or construction area, it can be carried out through signed the supplemental agreement or visa. Judicial interpretation of article nineteenth clearly states: "the parties have disputes on engineering quantity, formed in accordance with the construction process of visa and other written documents confirm. The contractor can demonstrate that the employer agreed to the construction, but failed to provide visa documents proving that the engineering quantity, can by other evidence provided by the party to confirm the actual quantity of construction work." I think the nineteenth provisions can be used as the answer.

Change of visa said major relates to the substantial contents of the contract from theory, still should make record. As for the change of visa should after registration, how to record, the current administrative regulations do not need new regulations, the Department in charge of building. It is reported, the Ministry of construction is working on this new provision.

 

The author is China international economic and Trade Arbitration Commission building professional arbitrator, Shanghai city development law firm director

(Editor: Chinese and Foreign Civil referee network)

The Supreme People's court civil court

Two OO six years in April 25th