The Zhejiang Provincial Higher People's Court on the trial of cases of disputes over construction contracts

The views of a number of issues(Draft)

In order to correctly judge the construction contract disputes, in accordance with the "people's Republic", "general principles of the civil law of the people's Republic of China", "contract law of the people's Republic of China", "construction law of the people's Republic of China invite public bidding bids law", "Civil Procedure Law of the PRC", the Supreme People's court "on hearing the construction contract dispute case applicable legal interpretation of several issues" (hereinafter referred to as the "interpretation" and other laws, administrative regulations and judicial interpretation, combined with the actual situation of the province, the enactment of this opinion.

A validity of construction project contract

The first construction contract the contractor and its subordinate branches or the staff signed by all or part of the construction contract contract contract for the enterprise contract, the parties to the contract of the contract the contractor without construction qualification by the main contract invalid, does not support.

Article second in any of the following circumstances, shall be regarded as the name of actual construction people no qualification of construction enterprises by qualified by construction, the construction contract signed invalid;

(a) do not have engaged in the construction activities subject qualification of individual, partnership organization or enterprise to have the name of the qualification of construction enterprises engaged in construction activities of the contracted project;

(two) the construction enterprise qualification grade low in the name of the construction enterprise qualification grade high contract works;

Three.Nominal architecture enterprises do not have the qualifications to EPC contractor qualification is undertaking a project;

(four) the construction enterprise qualification by other illegal means to allow others to contract projects in the name of the enterprise.

Article third in any of the following circumstances, engineering construction contract is invalid:

(a) the actual construction without obtaining a construction enterprise qualification or exceed the level of qualification;

(two) the actual construction to branches, the construction enterprise staff team or project department and other forms of foreign business activities, but there is no property right relationship with construction companies, property management is not uniform, no standard of personnel appointment and removal, relocation or hiring procedures;

(three) the actual construction funds, to organize the construction, the construction enterprise management fees charged only, do not participate in the construction, management, technology, management and economy does not undertake the responsibility.

Fourth one of the following circumstances, should be identified as illegal subcontracting, construction contract signed invalid

(a) the contractor will be the main structure of the construction project subcontracting to others;

(two) the subcontracting units do not have the qualifications of the corresponding;

(three) without the permission of the construction unit;

(four) the subcontracting units will be the contract and subcontract.

Article fifthAt the same time, in accordance with the following situations, should be subordinate to the labor contract, the contract effective;

(a) the actual construction people have a same project construction qualification or labor subcontracting enterprise quality grading standards, construction contract is only the rules of a road or fellow processes, rather than the whole process engineering;

(two) contract for provision of services, rather than contracting package materials.

Article sixth the employer fails to obtain the construction project planning permit, signed a construction contract with the contractor, the contract shall be deemed invalid, but the prosecution of former construction planning permits, the contract shall be deemed effective.

The parties to the contract fails to obtain the construction land planning permits, land use warrants or building construction permits, advocate the construction contract is invalid, does not support.

Article seventh the parties to the construction contract project price in violation of engineering quota standards on the grounds that, change or cancel the contract, in accordance with the relevant provisions of the "contract law" treatment.

Article eighthWarranty period of normal use conditions agreed under the engineering construction contract is lower than the minimum duration of the laws and administrative regulations, the parties request confirmation of the contract invalid, the people's court shall support.

The ninth contract in any of the following circumstances, the contractor can not work, and within a reasonable time limit for exhortation to fulfill corresponding obligations and not, the contractor requests to terminate the contract of construction project, it shall be supported;

(a) did not provide material within the specified time, or provide material does not comply with the contract;

(two) did not provide the agreed time of construction site, construction of road, construction water, construction power;

(three) did not provide complete engineering geology and underground material or construction drawings within the specified time;

(four) Engineering intermediate acceptance not handled within the specified time;

(five) fails to perform the contract agreed to other assistance obligations.

Two. That construction period

There is a clear agreement start time for the construction project tenth of the construction contract, in accordance with the agreement; there is no clear agreement, or the agreed start time earlier than the issue of '' '' commencement time, started the construction of the time should be in the employer issued the '' '' to confirm the time of commencement report prevail; the employer issued the '' '' work start reports confirm the start time as early as issued by the administrative department of construction building construction permits' '' 'to confirm the start time, the construction administrative departments issued the' 'construction permit' 'to determine the start time as construction work time;

If the employer '' '' commencement report issued after the submission of construction materials, delay, the construction site to the contractor, the employer is the start time to actually submitted construction materials, construction site to determine the time.

Scheme two: there is a clear agreement start time for the construction project construction contract, in accordance with the agreement; there is no clear agreement, by the actual start time determined; unable to pinpoint the start time, treatment in accordance with the relevant provisions of the rules of evidence.

Article eleventh The construction contract for the duration extension in case there is no clear agreement, the developer in the project payment, progress payment, design changes caused by engineering works, slowdown due to construction process, or because of irresistible factors caused by engineering works, construction period can be extended accordingly.

Article twelfth The contractor the burden of proof to prove that the employer existed in the project payment, progress payment, change the design, to increase the quantities can be extended period of time and situation, and agreed in the contract for the duration extension of the time limit within the extended time limit for a project put forward requirements, or the situation serious construction schedule, the contractor may be on time limit delay support, the employer only by the Contractor fails to submit the claim period extended application within the specified time period can not be postponed, not support.

The employer changes designed to increase the amount of the construction process, if the parties have not agreed upon time and not a consensus, according to the fixed time limit may be extended.

Thirteenth construction after the completion of the project, the contractor for the project, according to the agreed not to pay for, not to assist with the completion of the project acceptance, as construction projects; construction project final acceptance, the developer to delay the settlement or in the works, the contractor may exercise defense on the grounds of non delivery of construction engineering, but not delivery of the project and engineering arrears equal value. If the employer fails to deliver outstanding engineering and construction project value gap or not delivery affect the engineering use, the Contractor shall bear the liability of compensation.

Article fourteenthConstruction project after the completion of the actual control has been by the employer, the employer is not the final acceptance of the organization, and no quality problem, as the project has been completed and acceptance, project completion date as the date of acceptance of the completion of the project.

Three that the responsibility of project quality

Article fifteenthHas the responsibility of the contractor, the exemptions from the requirements of the construction engineering quality responsibility, not support:

(a) the contractor design drawings that the employer provides problems or problems found in the process of construction, and did not have time to put forward opinions and construction continued construction;

(two) the contractor to the employer's materials (including commodity concrete) there should be no inspection or inspection unqualified still use;

(three) the standard for quality, safety and put forward by the employer in violation of laws and regulations and the construction, reduce project quality requirements, the Contractor shall not refuse and construction.

Article sixteenthThe project has not yet been completed acceptance, the employer refused to pay for projects in the engineering quality is not qualified, according to defense; the employer that project quality does not meet the quality standard stipulated in the contract or the national mandatory standard loss is caused to the requirements, reduce the engineering payment by the contractor or compensation for losses, according to the prescribed.

Article seventeenthThe employer or supervisor has organized acceptance and signature in the relevant documents to confirm acceptance of the project, should be identified by acceptance, the quality problems existing in the works as the warranty quality problems, the employer to engineering quality problems for non payment or delayed payment, requirements engineering, not support.

Article eighteenthConstruction projects without approval, the contractor to the employer to pay the contract price, the developer of the project quality objection and requested a signed, shall support.

The project has been completed but without the acceptance, the contractor to the employer to pay the contract price, the price of engineering, engineering quality objection, but not for identification, does not support.

Four. Determine the engineering quantity

Article nineteenth the parties in the construction process of engineering quantity change form a supplementary agreement, meeting minutes, the work liaison sheet, engineering change orders, reconciliation and related engineering visa correspondence, records and other written material, can be used as the basis of accounting.

Article twentieth the parties have agreed to have the right to make specific personnel quantity and price to the visa, confirmation, in addition to the specific person and legal representative, other researchers have made to the quantity and the price of visa, can not confirm as the project price settlement basis; no agreement, bear the civil liability of the post the employer shall conduct its staff, but the developer has evidence to prove that the contractor that the engineering staff without permission, the staff of the visa of the employer shall have no legal effect.

Another idea: no agreement, legal representative, project manager, person in charge on site visa, that have the force of law, other staff visa, confirmation, the Contractor shall prove that the staff have the corresponding rights, otherwise, the work visa, to confirm the contents of the contract is not legally effect of.

Article twenty-firstThe contract is fixed price, the contractor for the project increased by adjustment of contract price, should be treated in the following manner:

(a) project increased beyond some range of the fixed price, shall be added to the contract price;

(two) fixed price contract scope of an unknown, if the employer can not prove that the increase of amount of works has been included in the contract within the scope of, should be included in the contract price;

(three) the employer to fixed price contract form, tender and fixed price lump sum contract signed after the engineering quantity, controversial, with practical engineering calculation of contract value;

(four) signed fixed price contract, major changes in design drawing engineering change or fixed price basis, in accordance with the two sides to determine the engineering quantity list valuation at just.

Five the project price settlement basis

Article twenty-second the construction contract is invalid, but the completion of the project acceptance, it shall refer to the contract to determine the construction cost.

Article twenty-thirdIllegal subcontracting, illegal subcontracting of construction project, the actual construction and the contractor agreed to between the contractor and the employer's settlement price as the two sides settlement, shall determine the actual workers deserve project according to the actual construction of the contract; burden of proof to prove between the contractor and the employer of the settlement results in damage to the legitimate rights and interests, the people's court according to the actual construction application, the actual construction due to project cost basis between the contractor and the employer's settlement documents, contracts and related visa.

Article twenty-fourth the construction contract clearly agreed the Employer receives completion settlement documents, agreed in the contract period shall not reply completion document for approval, the project price settlement in accordance with the requirements of the completion document, the people's court shall support.

Not explicitly agreed in construction contract, the parties to the "33 items" for the requirements of the project price settlement, in accordance with the completion document, the people's court shall not support.

The construction contract, the employer shall give a reply within a specified period of time after the submission by the contractor of the settlement documents, but no agreement fails to reply the completion settlement documents for approval, the Contractor's request according to the settlement file to determine the project cost, does not support.

The construction contract clearly agreed the Employer receives completion settlement documents shall not reply completion document for approval, a reasonable period of time but not agreed to reply, the requirements of the project price settlement in accordance with the completion document, the people's court shall support. For a reasonable period of time to reply, shall be determined as the employer within 28 days after the completion of the settlement documents received.

Another idea: if the parties fail to stipulate the employer's response time, response time should not be presumed.

Twenty-fifth the provisions of law, administrative regulations must be tender for construction project, the actual performance of the contract of construction project bid and record the substantial contents of the contract are inconsistent, should take the filing of the contract as a settlement according to the project cost; without bidding, construction contract is invalid, but the request of the parties, refer to the contract payment of construction costs, shall support.

Laws, administrative laws and regulations not construction must be subject to tender, the actual performance of the contract of construction project bid and record the substantial contents of the contract are inconsistent, should be based on the actual performance of the contract as the project price settlement according to the.

The actual content is mainly refers to the construction contract in the three part of the project cost, project quality, project time limit content.

Article twenty-sixth by the construction of financial investment, the completion settlement audit to finance investment evaluation mechanism is not complete refused to pay for projects or to finance investment evaluation mechanism of the audit results as the project settlement basis, not to support, but the parties expressly agreed to finance investment evaluation mechanism accounts audit results except as on the basis of Engineering settlement.

Six. Identification of the project cost

The twenty-seventh party in litigation has been jointly selected authentication institution with corresponding qualifications made the appraisal conclusion of the project price, re identification of a party requests in the proceedings, the people's court shall not support, but there is evidence that the appraisal conclusion has the "Regulations" the Supreme People's Court on evidence in civil litigation, the provisions of the first paragraph of article twenty-seventh except in cases of.

If the authentication institutions issued report clearly inform if the challenged within a certain period of time, over the period of the parties, shall be deemed to have been accepted.

Article twenty-eighthThe contract is not agreed or the agreement is unclear to the project price, after the completion of the project, both parties can not reach a settlement agreement, also cannot take other settlement clearing works, the people's court may be identified on the project according to the project cost in the application of the parties the entrustment of judicial authentication qualification of fixed department; if the parties do not apply for accreditation in accordance with the relevant regulations, rules of evidence, the court interpretation, still do not apply for accreditation, the burden of proof on the authentication matter party bear the legal consequences no proof.

Article twenty-ninth in the first instance proceedings have authorized identification, if the authentication institution or identification of the person have the corresponding qualifications, identification of legal procedures, and after a trial court testimony, identification of people to receive inquiries, the parties appeal trial re identification, in principle does not support.

Proceedings of the first instance is not for projects were identified, the second instance proceedings the parties agree to identification, the court of second instance may entrust appraisal department on the parties to a dispute shall be identified project.

Seven. The project cost payment

The thirtieth contract to the contractor the completion acceptance report, without justifiable reasons, not in accordance with the law or the contract completion acceptance, after the law in fact or the agreed time, should be regarded as the project has been completed acceptance, the project without approval or to existing quality problems for non payment or delayed payment, request the project, not support.

Article thirty-first the parties agreed to the project completion and acceptance of project delivery after payment, construction project final acceptance, the practical control engineering, the contractor handed over the site, as the project has been delivered to the employer in the role, not signed the transfer agreement for non payment of engineering project, not support.

Article thirty-secondThe parties agreed to engineering project price settlement as the terms of payment, the developer delaying the project settlement, the contract agreed to delay the settlement, in accordance with the agreement; not agreed, in accordance with the calculation of interest from the date of delay in the people's Bank of Chinese benchmark lending rate.

Thirty-third, the employer shall timely examine the contractor to submit the project completion settlement documents. The expiry of the review period stipulated in the contract, the completion settlement in the documents submitted by the contractor is not complete refused settlement, the contractor of the contract review final deadline date of the interest, the people's court shall support.

Liability for breach of contract eight

Thirty-fourth, the construction contract for default payment agreed, agreed, but the liquidated damages shall not exceed the total amount, the party in breach the contract was foreseen or breach of contract may result in losses should have been foreseen by the. Breach of contract fails to perform the part of generally not more than 30%.

Contract for default payment is not agreed, or the agreement is not clear, as no agreement, the parties claim liquidated damages, not to support.

Article thirty-fifth, the parties reached a settlement agreement agreed not to project contractor overdue completion breach to handle or retention, the employer claim because the contractor causes overdue loss is caused to the project completion, will not support.

Article thirty-sixth the construction contract the employer can because of construction period, quality, contracts or illegal subcontracting the cases of the contractor in the contract to pay a fine, should be regarded as the parties agreed in the contract liquidated damages clause. Although the contract agreement can be directly from the project, deduction, deduction of behavior but fine without the consent of the contractor is invalid. The parties shall be adjusted in accordance with the requirements of "contract law" provisions of the people's Republic of China article 114th, it shall be supported.

Thirty-eighth, the construction contract is invalid, but in accordance with the provisions of article second of the "explanation" can refer to the contract of project price calculation, if the contractor has the extension or the employer has deferred payment situation, the parties should refer to the contract agreed to compensate the other party for the losses resulting.

Nine. The priority of claim in construction projects

Thirty-ninth, decoration engineering contractor priority for repayment of that project, can support; engineering survey or design on engineering survey or design fee claims priority, not support.

Fortieth, the construction contract is invalid, but the completion of the project acceptance, the Contractor proposes to priority of payment, can be supported.

Forty-first, schools, kindergartens, hospitals and other undertakings for public welfare, the purpose of social groups, educational facilities, medical facilities and other public facilities the Contractor proposes to priority of payment, not support.

Forty-second, the Contractor's priority of claim is limited to the scope of construction project cost, including the Contractor shall pay the staff remuneration, materials, used in construction project underwritten real payments. The employer shall pay the liquidated damages because of the employer or loss by default does not belong to priority of construction project payment of compensation scope.

Forty-third, the construction project has been completed, the Contractor's project cost priority deadline to exercise claim within six months from the date of completion of the construction project; construction projects not completed, main months contractor's priority claim by the exercise period of self construction contract agreed completion Japan; construction contract has been lifted, within six months from the date when the.

Ten other problem

Forty-fourth, the contractor of the project department or project manager contractor entered into a contract in the name of creditors, require the contractor to undertake the civil liability, and should be supported, but the contractor has evidence to prove that the creditor knows or should know that except for the project or the project manager does not have the authorization.

The employer fails to pay the project payment to the contractor agreed in the contract, the project funds paid directly to the project manager, the settlement of project payment controversial, person in charge of the people's court may in accordance with the relevant provisions of the civil procedural law of the additional project manager or project department as a defendant or the third party.

Forty-fifth, "" twenty-sixth explanations for the second paragraph, to the actual construction people bring to the employer as the defendant of litigation, the premise is: the actual construction of the contract relative person bankruptcy, One's whereabouts is a mystery., and the actual construction to the first contractor or contractor contracts are invalid, the actual construction did not mention the employer for the defendant, cannot guarantee the realization of rights.

Forty-sixth, the contractor prosecution request the employer payment of works, the employer to the contractor claim has exceeded the limitation of action as defenses, to protect the lawful rights and interests of the contractor. For both sides, not just the project settlement agreement, or the amount of construction funds has not yet been determined, or the contractor proposed settlement after the employer is not timely review and signature, the employer to exceed the limitation on the grounds of non payment of the project, not support.

Article forty-seventh of the views of spontaneous date. After the implementation of the opinions, laws and regulations and judicial interpretation of the new regulations, according to the new regulations.