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

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

Two, how to identify not obtained "four certificates" and effectiveness of engineering construction contract signed?

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

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

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

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

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

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

Five, how to determine the starting time?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Construction contract contract submitted completion settlement documents not reply is considered approved completion settlement documents in the contractor, but does not stipulate the response time, and the contractor notice, the employer still fails to respond, the people's court may determine a reasonable response time according to the actual situation, but the reply period should not exceed the 60 day.

The construction contract was not expressly agreed by the parties, the contractor not only with GF-1999-0201 "construction contract (model version)" general clause 33.2 as the basis, in accordance with the requirements of the completion document engineering settlement.

Fifteen, how to identify the "black-and-white contract"?

That "the black and white contract" when the "substance", mainly including the contract of project cost, project quality, project time limit of three parts. In the process of construction, because the design change, construction project planning parameters adjustment and other objective reasons, bearing, the parties to the supplementary agreement, meeting minutes, correspondence, and visa with record form, change of time, written documentation project cost, project properties, should not be regarded as "tendering and Bidding Law of the PRC" the provisions of article forty-sixth "the tenderer and the winning bidder to conclude other agreements deviating from the substantial contents of the contract".

Sixteen, the "black and white contract" how to settlement?

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

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

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

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

Litigation has been selected jointly by the parties identified agency with corresponding qualifications of project cost was identified, re identification of a party requests in the proceedings, shall not be permitted, but there is evidence that the appraisal conclusion has the Supreme People's court "several regulations about the civil action evidence" the provisions of the first paragraph of article twenty-seventh exception.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Zhejiang high court hearing such difficult answer construction contract disputes
   

(the news) on April 5th afternoon, the Zhejiang Provincial Higher People's court held a news conference, announced the Institute to develop a "hearing on the construction contract dispute cases several difficult questions to the society" (hereinafter referred to as the "answer"), rationalize the construction industry "unspoken rule" caused by the growing number of disputes, the guidance of provincial courts to properly the trial of cases of disputes over construction contracts, the uniform application of the law and the referee standard.

"Unspoken rule" of construction industry under the chaos to judicial "bright sword"

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

A court in Zhejiang high people who Jiang Weiyu introduced, in 2011, Zhejiang building a total output value of 1468600000000 yuan, the output value of 733900000000 yuan in the province; the total profits and taxes 86500000000 yuan, profit of 41500000000 yuan; housing construction area of 1454880000 square meters; the construction industry output value of over 10 billion yuan enterprises 15. At the same time, from a nationwide perspective, the domestic construction market is not standardized, supervision management is not in place, the internal disorder and the weak link, and the competition is fierce, the irregular development project, together conspired bidding, offer prices lower than the cost, the qualification unqualified contracting, subcontracting, subcontracting, link and other phenomena occur; the pursuit of to maximize the benefits, some construction will reduce the cost of the project, Jerry, shoddy, leading to the project quality is not high, "bean curd dregs", "fragile building", "building was", "building collapse" and other incidents have occurred; States affected by the impact of macro-control, funds chain tight cause underinvestment, cause a lot of works and migrant workers wage arrears phenomenon, has seriously violated the construction enterprises and the legitimate rights and interests of migrant workers, far beyond the economic and legal issues level, evolved into a social problem, conflicts and disputes, the construction contract disputes and the influx of court.

According to statistics, 2005 Zhejiang court accepted the trial of cases of disputes over construction contracts in 2006 2682, accepted 2757 2007, accepted 2866, accepted 3738 2009 2008, accepted 4070, accepted 2927 2011 2010, accepted 2523.

Our country has formed the basic framework of multi-level administrative regulations, rules and the construction of legal system, the Supreme People's Court on 2004 issued the judicial interpretation, but still not enough to solve the problem of new types of problems emerge in an endless stream, the current difficulties, hot, causing great difficulties to the court to hear such cases, led to the applicable law and the referee standard is not unified, the urgent need to a higher court for professional guidance to the relevant problems.

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

Here, some enthusiastic people also put forward opinions and suggestions to modify the letter. A master graduated from East China University of politics and law students, wrote a 6000 word proposal, put forward many useful suggestions and comments.

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

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

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

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

Judicial Daobi project management contractor specification

"Answer" in view of the actual problems of the 23 construction contract dispute case to make uniform provisions.

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

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

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

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

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

"Black and white contract", prevail?

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

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

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

Therefore, "answer" bidding procedures in accordance with the principles of fair competition, protect the legitimate rights and interests of the main body of the market, to avoid "illegal people benefit", clear: the construction contract with a construction project shall be concluded with the substantial contents of the contract are inconsistent, regardless of whether the contract after the registration in the contract, shall be as the project price settlement.

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

The employer signed acceptance, if a quality problem plea?

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

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

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

 
 The Zhejiang High Court issued on the trial of construction contract dispute cases several difficult questions press conference speech

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

April 5, 2012.

Journalists, friends:

Everybody is good!

For the guidance of provincial courts to properly hear construction contract dispute cases, I developed a home "on the trial of construction contract dispute cases several difficult questions" (hereinafter referred to as the "answer"), and was formally issued the province at all levels of court. Now, I introduce to you "answer" about the situation and main content.

A, formulated and issued a "solution" background

In recent years, with the rapid development of our city continue to push forward the process, public infrastructure investment and real estate market, the construction industry in our province will continue to grow and develop, the main economic and technical indicators in the leading position in the country, in the national construction market accounted for a considerable share. In 2011, the province's construction industry output value of 1468600000000 yuan, the output value of 733900000000 yuan in the province; the total profits and taxes 86500000000 yuan, profit of 41500000000 yuan; housing construction area of 1454880000 square meters; the construction industry output value of over 10 billion yuan enterprises 15. Status of Zhejiang Province as a big province, the province building construction further consolidated, "Zhejiang brand building" further highlights. At the same time, from a nationwide perspective, the domestic construction market is not standardized, supervision management is not in place, the internal disorder and the weak link, and the competition is fierce, the irregular development project, together conspired bidding, offer prices lower than the cost, the qualification unqualified contracting, subcontracting, subcontracting, link and other phenomena occur; the pursuit of to maximize the benefits, some construction will reduce the cost of the project, Jerry, shoddy, leading to the project quality is not high, "bean curd dregs", "fragile building", "building was", "building collapse" and other incidents have occurred; States affected by the impact of macro-control, funds chain tight cause underinvestment, cause a lot of works and migrant workers wage arrears phenomenon, has seriously violated the construction enterprises and the legitimate rights and interests of migrant workers, far beyond the economic and legal issues level, evolved into a social problem, conflicts and disputes, the construction contract disputes and the influx of court. According to statistics, our province court in 2005 by the first instance of construction contract dispute cases 2682, accepted 2757 2007 2006; accepted 2866 2008 2009; accepted 3738; accepted 4070 2010 2011; accepted 2927; accepted 2523.

In dealing with the disputes, although China has formed a "construction law", "Bidding Law", "contract law" and other laws, "construction quality management regulations", "construction safety management regulations", "construction survey design management Ordinance" and other administrative regulations, departmental rules and regulations construction the construction of legal system, the Supreme People's court in 2004 issued "on the law applicable to construction contract dispute cases the interpretation" (hereinafter referred to as the "construction contract judicial interpretation"), but still not enough to solve the problem of new types of problems emerge in an endless stream, the current difficulties, hot, has caused great difficulties for the court to hear such cases, led to the applicable law and the referee standard is uniform, the urgent need to a higher court for professional guidance to the relevant problems.

Two, "answer" making process

In the formulation of "answer" in the process, we are in the three grade within the court through the holding of seminars, Zhejiang court net hanging on the draft and extensive solicitation of opinions, suggestions, comments received hundreds of. At the same time, extensively solicit the views of the community, especially the construction companies, real estate companies, lawyers association, the construction industry related departments relationship with such disputes closely the views of the unit. We also held a special expert advisory argumentation, invite experts to Zhejiang, Zhejiang University, Zhejiang Academy of social sciences on the controversial issue from the angle of theory of law, comparative law demonstration and research. During this period, some enthusiastic people also put forward opinions and suggestions to modify the letter. A master graduated from East China University of politics and law students, we still do not know the specific identity and occupation, we wrote a 6000 word proposal, informative, one by one review, put forward many useful suggestions and comments. Here, we also expressed his thanks! Also please the social from all walks of life, the masses continue to give support.

Three, the main content of the "answer"

"Answer" there are answers to 23 questions, summarize all over the province court construction contract dispute cases effective practice, experience, absorbing the valuable opinions from all sectors of society put forward, from the norms of the construction market order, ensure the quality of construction of the original point of view, on the current practical problems of construction contract disputes in the case of the uniform provisions.

In the formulation of "answer", we insist on three main principles: one is to adhere to the principle of quality first. The "project, quality first", construction project involving thousands on thousands of people's life, body, health and property rights and interests, not lose. The measure of whether or not applicable "contract law" article fifty-second (five) because of "violation of laws, administrative regulations of the mandatory provisions" cause the contract invalid, and its aim is related to the quality of construction, should be understood as the effectiveness of mandatory provisions, the parties once violated, will produce the consequences of the invalidity of the contract. Such as "contract law", "construction law", "construction contract" judicial interpretation about construction quality problems, is mainly about to ensure the construction quality rules, no professional contract works, affiliation, illegal subcontracting, are invalid.

The two is to adhere to the principle of standardizing the order of the construction market. Laws and regulations on the construction market access made strict limits, maintain market rules and competition order, but also to protect the healthy development of the construction industry and to ensure that the basic premise of the quality of the project. Therefore, any violation of the normal order of the construction market behavior, should also be confirmed invalid. Such as, about the construction quality problems, "contract law", "construction law", "contract for construction" of the relevant provisions of judicial interpretation, is the mandatory provisions. And as the construction market bidding order, is a typical order, the free and fair competition in market. If the violation, should not tender bidding, in order to lower than the lowest bid, or the existence of "black and white contract" problem, also be to confirm the contract null and void.

Three is the contract invalid principle. The provisions of the state on the construction of domain engineering, management is strictly. But it is not against all rules would lead to contract. If it is necessary to the construction permit, land use warrants and other relevant provisions, no of course impact on the effectiveness of the contract. In the trial practice should distinguish the provisions of laws, administrative regulations of the mandatory provisions, administrative mandatory, only the violation of construction project contract validity specified is invalid.

According to the above principles, we made answer to the relative problem, the main contents are:

(a) the validity of the internal contract and identification standard. Construction management mode has its own characteristics, construction is in the form of project manager department management of construction project. The project manager to implement internal contract management responsibility system. Zhejiang construction mode that is so. The internal contract, as a kind of management mode of construction enterprise, is neither illegal subcontracting, also not linked, so its itself is legitimate, the scope of the decision-making power of enterprises. But what exactly is anchored, subcontracting or internal contract, due to a similar "appearance", according to the standard with the fuzzy, judicial practice is not uniform. Therefore, we must recognize the construction company management mode, but also to prevent evasion of law, to the internal contract in the name of illegal subcontracting, link it in reality principle, think: the contractor and its subordinate branches or employees of the signing of the contract, the contract all or part of the contract to their subordinates the branch or the staff construction, and give support in capital, technology, equipment, manpower and so on, can be regarded as a contract within the enterprise contract, the contract effective. This will not only internal contracts and illegal subcontracting, link it to distinguish, also clear the effectiveness of internal contract, in order to regulate market order effect.

(two) the issue of how to identify the effectiveness of parties agreed warranty period is lower than the minimum legal warranty clause. "Construction quality management regulations" provisions of article fortieth: under normal use conditions, construction of the minimum warranty period: (a) infrastructure projects, the building foundation engineering and the main structure of the project, reasonable and useful life of the project design document requirements; (two) to prevent leakage of roof waterproof engineering, waterproofing requirements bathrooms, room and the outer wall, for 5 years; (three) the heating and cooling system, for the 2 heating period, cooling period; (four) electrical pipelines, water supply and drainage pipeline, equipment installation and decoration works, for 2 years.

In practice, the parties in violation of the above provisions, the agreed minimum warranty period below the legal provisions of the warranty period, if the minimum roof waterproof project warranty period agreed for 3 years, this clause, once the roof waterproof engineering quality problems occur in the fourth year, the parties may because the warranty issues, expenses and the dispute. In this regard, we think, "construction quality management regulations" provisions of article fortieth, is the mandatory provisions of the law, the parties can not arbitrarily exclude the application of desirable. Its provisions will, mainly is to ensure the quality of the construction project, the security of human life and property, this is the bottom line must adhere to, can not break through. Therefore, the warranty period under normal use conditions stipulated in the project construction contract is lower than the minimum limit of the state and the province, the contract shall be deemed null and void.

(three) the employer has confirmed that the acceptance of project sign, if a quality problem that plea, extension or not to pay the construction cost of the problem. In judicial practice, the developer has signed acceptance of the project, that project quality reach the requirements stipulated in the contract, but later found out that there are significant security risks or the main body project of the project or the foundation quality is not qualified, which require the construction shall bear the responsibility of quality warranty or refused to pay the remaining project money, often occurrence. So how to understand, there are different opinions in theory and practice. Some believe that since we have confirmed the signing, then recognize that engineering is eligible, can't back, otherwise violate the principle of good faith. Some believe that although the acceptance and signature confirmation, but as long as the cause of construction in engineering construction quality problems, they shall bear the corresponding liability. We believe that, look at the problem to be One divides into two. One is, if is the common quality problem, since the developer has signed acceptance, it shall be deemed to be admitted to the engineering quality is no problem, or to give up on the defect investigation rights. Therefore, not to the contractor responsible for the breach or defense not pay for projects; two is, if there is quality problem the main body of the project or project, there are significant hidden danger, the cause of quality problems or potential lies in the contractor, then because of this project involves many people's life and property safety, important, the Contractor shall bear the relevant responsibility, the employer can not pay defense works. Therefore we require: the employer has organized acceptance and signature in the relevant documents to confirm the acceptance, and later to the engineering quality defects on the grounds, refused to pay or delay payment of construction costs, the claim could not be established, but due to the contractor led to the construction foundation engineering, construction of the main structure of unqualified, the people can still refuse to pay or delay payment of project cost requirements.

(four) the problem of project manager, project department responsible person disorderly visa. At the construction site, workers are very complex. In reality, as a project manager, a supervisor, a site engineer as the chaos or malicious collusion with others, leading to the project can not be completed, the enterprise collapse situation, not uncommon. Therefore, in judicial practice, whether the relationship of rights and obligations for the field staff how to define the litigation burden of proof lies in how, where, the controversial. Show that the construction activities and judicial practice: project manager management anomie is one of the important reasons of current construction chaos, frequent disputes. The main performance, such as: Project Manager of unknown authorization, permission to expand indefinitely, financial management is out of control, the project department official seal management confusion, members of the project access control etc.. These coupled with subcontracting, and subcontracting and other factors, often caused by overlapping of legal relation to the facts of the case, whirling. On these issues, the judicial practice, has not completely consistent, now and then also not consistent understanding. We believe that: according to the reality and code for construction purposes, the burden of proof angle, Daobi construction management contractor specification comparison. Therefore the provisions: unless specifically authorized legal representative and contract personnel, other personnel of engineering quantity and the price of visa, confirmation, do not have the force of law. There is no agreement expressly authorized, legal representative, project manager, person in charge on site visa, that have the force of law, other personnel visa, confirmation, do not have the force of law to the employer, unless the contractor personnel have the appropriate permissions to prove the. This is conducive to restrict chaos source, to prevent disputes from the source of.

(five) "problem identification and settlement of black and white contract". "The more common black and white contract", the court in the construction contract disputes, more than half of the contract related to black and white, reflects the architectural market not standard. "Black and white contract" also known as the "contract of yin and Yang", refers to the construction contract the parties on the same project signed two or two or more in price or perform ways, there is a substantial difference between the contract. Generalized usually through bidding and the relevant government departments for the record contract called white contract without registration, to actually perform the contract called black contract. In this regard, "Bidding Law" article forty-sixth and construction of the judicial interpretation on the relevant provisions of this contract are, namely, the tenderer and the winning bidder may not conclude any other agreement deviated from the substantial contents of the contract.

In judicial practice, generally black contract invalid. But how to determine the "black-and-white contract", "difference" substantial to hold, become a difficult problem in the judicial practice. Especially the construction contract has its particularity, long cycle, large changes in the performance of its content, the contract process often will have some changes, these changes can constitute "substantial differences", how to grasp, how to understand, to test the very intelligent. In order to further standardize the discretion of judges, we believe that: "the black and white contract" when the "substance", mainly including the contract of project cost, project quality, project time limit of three parts. In the process of construction, because the design change, construction project planning parameters adjustment and other objective reasons, bearing, the parties to the supplementary agreement, meeting minutes, correspondence, and visa with record form, change of time, written documentation project cost, project properties, should not be regarded as "Bidding Law" stipulates that the forty-sixth "the tenderer and the winning bidder to conclude other agreements deviating from the substantial contents of the contract".

For the "black and white contract" to settlement problems, practice is controversial. "Construction contract" provisions of the judicial interpretation of article twenty-first, the construction contract the parties on the same construction shall be concluded and after filing the substantial contents of the contract are inconsistent, should take the filing of the contract as the settlement of project price according to the. But in the judicial practice for the application of the article, there are different interpretations. One point of view, as long as the "black and white contract", the settlement of the works will be applied "construction contract" judicial interpretation of the provisions of article twenty-first, namely to white contract as the basis for settlement construction; another view, the settlement of the works, should be in compliance with the parties, the parties that the real meaning of actual performance contract as a settlement basis; there is a view that, according to the actual situation specific judgment, if the judicial interpretation of the twenty-first article of the cases, it should be in the filing of the contract for the settlement, if not, it should be in compliance with the true meaning of the parties, the parties of the contract as a settlement on the basis of actual performance. The explanation of the different, resulting in the case is very confused. We found in the survey, my judicial practice, is not uniform for the referee, some with white contract as the settlement basis, some black contract as a settlement, and the objective standard through the audit identified in real settlement. But in practice the black white contract, contract, bidding must, particularity of the case are also very complex. These conditions seriously affected the unity of the judicial scales.

This, we believe, to the bidding process in accordance with the principles of fair competition, protect the legitimate rights and interests of the market main body, to avoid the "illegal people benefit", to prevent the parties to undermine the market order of fair competition. Therefore, the construction contract the parties on the same construction project shall be concluded with the substantial contents of the contract are not consistent, regardless of whether the contract after the registration, shall be in accordance with the "construction contract" provisions of judicial interpretation of article twenty-first, in the contract as the project price settlement.

At the same time, in view of the parties through the string, lower than cost price and other illegal bidding, "white contract" is invalid, if let the parties in accordance with the white contract settlement payments, a serious imbalance between the interests of both sides, will therefore, we set for this case, the parties: illegal bidding, and a separate set of construction engineering construction contract, regardless of whether or not after the registration of the contract, two copies of the contract are invalid; should be in accordance with the Supreme People's court "judicial interpretation" construction contract "provisions of article second, would be consistent with the true meaning of the parties, the contract and the specific performance in the construction, as the project price settlement.

"Other relevant answer" contract of construction contract disputes in the common effect of that, start of identification procedure, evidence, the construction of priority of claim by the problem, the answer.

Dear friends, "Andhra Guangsha 10 million", construction norms, as well as the economic and social development, closely related to people's lives and property safety, let us concern, working together, to contribute to the building of a harmonious socialist society!

The Zhejiang high court hearing on the construction project contract case to answer difficult questions press conference case
  

[case]

Black and white contractPayment in real settlement

In September 28, 2003, real estate companies and Huanyu company signed a home garden construction engineering Tu supplement agreement, agreed to by the universal company contracted home Tu Shan Garden general plan into sections 1, 2, 3, 5, 6, 7 building, hall (underground garage), kindergarten project. The agreement of sixth clearly at the same time, the protocol as the supplementary conditions of contract text, and have the same legal force as the contract. The original tender documents and the bid winning notice with the text of the contract and the supplementary agreement is inconsistent, the contract and the supplementary agreement shall prevail, when the text of the contract and the supplementary agreement is inconsistent, in the supplementary agreement shall prevail. In November 27, 2003, real estate companies issued the tender documents. Should be home company invite, Huanyu company as a bidder to participate in the bidding, and the total cost reduction of 5.25% successful. In December 28, 2003, both sides signed the construction contract a contract by universal, stated: Company contract construction home Tu Shan garden bid I project, project content is general plan division section in 1, 2, 3, 5, 6, 7 building, hall (underground garage), kindergarten, scope of the contract for construction installation figure within the scope of the construction project, hydropower project, the contract period is from December 28, 2003 to October 28, 2004, the total number of calendar days for 300 days. And clearly the supplemental content construction of text construction contract supplementary agreement signed by the two sides in September 28, 2003, its legal effect is greater than the text of the contract.

   Actually the construction Huanyu company, project completion acceptance. In May 18, 2008, global companies to court, in accordance with the requirements of the bidding contract settlement project, project cost is 48370000 yuan, real estate companies have paid 32890000 yuan, there are 15480000 yuan without payment, request immediate payment of property companies.

The court heard that the case involved: Contracts for the "black-and-white contract". Before bidding on the property company, the two sides in December 28, 2003 signed a construction contract. In other words, the "black" contract, "white" contract in the post, white contract is actually the parties colluded bidding results, is that both parties to avoid false meaning of administrative supervision and the signing of the contract, shall not be binding on the parties of contract, black and white are a result of collusion, shall be deemed null and void. So the case should not be in accordance with the provisions of the Supreme People's court "about the law applicable to construction contract dispute cases the interpretation" in article twenty-first, the contract as the project price settlement. With the agreement of both parties, the "black" the validity of a contract is greater than the contract, but the two sides in the actual implementation process, and in accordance with the supplementary agreement rather than bidding contract, according to the true meaning of the parties and the actual performance of the situation, should according to the supplementary agreement as the basis for settlement. Accordingly, the Universal Corporation in accordance with the requirements of the bidding contract settlement request will not support.

[two] case

The internal contract is affiliatedTheir responsibilities to pick

Engineering green company of Exhibition Center contractor. In March 1, 2008, the company signed a "green and History Exhibition Center project contracting agreement", agreed: 1, history of a contractor contractor to contractor exhibition center green all of the company's construction and management, green management fees charged by the audit of 2% of the total, the rest of the project to a history of all responsibility use; 2, green, needed for a payment history carved the project related with the chapter, and make some use of history, a history may not use approval record with chapter used in the project of the production and business operation activities without the green company, a history not to company project department in Chapter 3, the green sign contract; company in accordance with the construction side each pay a project, pay third people after deduction of management fees and other costs. After the agreement is signed, the history of a scaffold engineering and engineering to fellow Zhang contract. In the process of construction, Zhang from the history of somewhere another received project of RMB 210000. After Zhang completed. In January 22, 2009, Shi Zhang in the making "project pay list" sign and marked "agreed to pay", and affix the company seal green project department in pledge. Because of a history fails to pay the works, Zhang in January 24, 2009 to green company requires payment. As the Spring Festival approaching, green company to resolve disputes, requires a history to green company issued 3000000 yuan of IOU, then green company will pay the money to the zhang. Since then, Zhang Mou to urge to pay the remaining amount after being taken to court, requesting judgment green company paid 290000 yuan project. Court Zhang requirements will be a history as third people, and a shared history of green space, and pay the engineering responsibility.

The court trial think, a history from the green company to undertake the case involving project, although the name of the internal contract, but the parties do not exist internal relations, a history is not green company, green, nor in the capital, technology, equipment and other aspects of the history of a support. Therefore, the so-called internal contract is actually a kind of link between the. A history to undertake the project after the scaffolding and auxiliary works handed Zhang construction, although not entered into the contract, but the existence of subcontracting relationships. In this case, a history of the project funds have been recognized, it should pay the corresponding project money to zhang. Green company and Zhang take call engineering contract, in violation of the provisions of the relevant national laws, should also be on Zhang advocated the project payment responsibility. Zhang asked some payment project green company and history file for the arrears according to law, support.

[three] case

Violation of minimum warranty periodAgreed warranty period are full of

Quality responsibility shall still bear

The two companies signed the "construction contract" with the heart of companies, construction companies contracted by the public mind company office building. The contract project warranty period of one year. After the project after the completion of acceptance and delivery company using the heart. Zhongxin company for building decoration and put to use, the building appears a lot of quality problems, Zhongxin company stopped payment for the remainder of the project. The two companies urged the court to initiate proceedings, request the public mind company to pay the remaining amount. As an excuse to be defense quality problems of Zhongxin company to engineering. After identification, the project quality problems exist: roof, three layer platform cracks, leakage; leakage in toilet wall and window leakage. Quality problems caused by system construction. Repair costs identified as 150000 yuan.

The court held that: implemented quality warranty system of construction engineering. According to the "Regulations" construction quality management fortieth, "under normal use conditions, construction of the minimum warranty period: (a) infrastructure projects, the building foundation engineering and the main structure of the project, reasonable use fixed number of year of the project design document; (two) to prevent leakage of roof waterproofing, waterproofing for bathrooms, room and the outer wall, for 5 years; (three) the heating and cooling system, for the 2 heating period, cooling period; (four) electrical pipelines, water supply and drainage pipeline, equipment installation and decoration works, for 2 years." the parties in the contract on the entire project warranty period of one year contract, violation of mandatory provisions of the relevant laws and regulations, should belong to invalid, construction quality, construction as a construction unit shall construction project. Therefore, although the project acceptance, but at a minimum the provisions of laws and regulations of the warranty period, the main structure construction, roofing, toilet, the outer wall of the anti leakage are quality problems arise, as the construction side of the construction company should assume responsibility for repair.