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70375 2010 年 08 月 09 日 10:53 Reading (loading. ..) Comments (0) Category: Legal Notes
construction contract disputes Application of Law
IV construction contract invalid processing
valid construction contract on the general principles of treatment are: no longer perform the decision not to perform; is performed, shall immediately cease to perform, as the case handled by the degree of fault; the actual performance of the contract has been completed, should be based on the fault of parties to the contract null and void level of responsibility and the composition of project cost for processing. The party at fault shall be in accordance with the actual cost of the return of the project through no fault of the contractor for the works should be obtained, and compensation for the losses incurred. Contracting in both sides at fault, the amount of compensation determined by the degree of fault. One or both deliberately harm the public interest law, it shall be confiscated of their illegal income submitted to the treasury. Should be noted that in accordance with the above approach is not valid construction contract dispute, in some cases, damages can occur and the phenomenon of recovery of illegally acquired overlap. To correctly understand and grasp the legislative intent of laws and regulations, so that the party deliberately to compensate the innocent party to both the actual loss, but also recover ill-gotten gains, reflecting the civil sanction. Construction contract is invalid is not without legal protection, only the parties can not produce the expected results based on the contract. Where construction contract is invalid because there are serious flaws in the qualification parties, the contract content is illegal and so on.
(a) The construction contract is invalid fault accountability
the contract null and void, shall be the fault of the parties, the size of a reasonable division of contracting liability. Not covered in the review to a reasonable duty of care on all parties have fault. If serious violations of state capital construction program caused an invalid contract, the contract shall bear the main fault liability, the contractor assumes responsibility for the secondary fault; no business license and qualification certificate corresponding result in the construction industry avoidance of the contract, the contractor to take primary responsibility; Employer did not apply for the adjacent land for construction land use planning procedures and licensing procedures, the developer bear the primary responsibility for the contractor have secondary responsibility. After the construction contract is confirmed as invalid, in principle, determine the project should be based on the contract price. But the construction side to pay the labor, investment funds, the occurrence of the direct costs of construction works in the construction process, the property is converted from one form to another form, its value has not changed, and has been fully transferred to the new building works, hence, the construction side should receive a reasonable compensation, that is, the direct costs of the construction work shall be paid the construction side. Indirect costs for construction projects, such as labor insurance fund, taxes,
prada sale 2011, construction management fees, and its value is not directly transferred to the construction project, such as has taken place, as the construction side of the losses, the two sides sharing a reasonable fault. For the construction side of the profit, in principle, should be supported. In adhering to this principle, based on the following conditions should be treated separately distinguish between:
1, on the construction side does not have a construction project, planning and construction approval, or the construction side projects do not have the appropriate qualifications of engineering contract price settlement. Under the current law, project, planning and construction approval for the construction of statutory construction only prerequisite is to determine the legality of construction standards; construction companies have the appropriate qualifications are contracts signed contract engineering and legal conditions. So, for party fails to obtain pre-action construction of the above procedures, or the construction party has not obtained the appropriate qualifications, due to the defects of contract law can not make up, should be recognized as invalid.
which side do not have the building construction conditions, and the construction side with the corresponding qualification contract works in practice is often illegal to conceal the fact that the construction side, and did not fulfill the principle of good faith to do in accordance with the obligations of the contract obligations were first violations. Therefore,
prada online, the construction side of the contract is invalid bear the primary liability. This case, from the equity point of view, the construction side are expected with the conclusion of the contract the contract price is more fair, reasonable and that its work should be the direct costs, indirect costs and profit. If the two sides settled in the contract for engineering standards and methods of valuation have a clear agreement,
prada sunglasses 2011, and not against the law, it shall be settled according to the contract the contract price. Side view of the construction side of the building not entirely to the fact that the illegal construction of the necessary review of obligations, leading to avoidance of the contract, there is also some of its subjective process, so the penalty for such contract losses, offset in accordance with the principle of fault, the construction side is not should be fully supported.
Similarly, for the construction side of the building with appropriate conditions, the construction side do not have the appropriate qualifications and contract projects, the construction side of the contract null and void should bear the primary fault in the subjective. Therefore, the contract agreement on the contract price should not be used as a basis for settlement, the contract price should be based on the construction administration department of the fixed standard and truly settled. Among them, the low qualification of construction enterprises are highly qualified requirements of the project contract, according to the actual level of qualification of construction enterprises balance sheet value of the project using the above method; no construction quality construction side, can only benefit funds and members of their advance fees, equipment use fees , labor costs and other direct costs of construction projects. Such cases, due to the project contract price and the actual price paid in part by the difference made no legal basis for the construction side, trial practice can be based on be seized.
2, on the construction quality does not have business or personal use, to borrow a qualified business qualifications of construction enterprises,
prada handbags 2011, or joint venture, contracting, and other forms of disguised affiliated with the qualifications of qualified construction companies, resulting in avoidance of the contract settlement of the contract price . This case, the project can be compared to determine the price above principles invalid contract. Should be emphasized that such disputes in nature as a contract dispute, contract rights and obligations of both the main line, therefore, in principle, the construction contract by the parties claiming rights as subjects of rights, the contract price shall be paid the contract the construction side, building side actual construction is not directly benefit people project payment obligations. If the actual construction side as subjects of rights lawsuit, after hearing verified, rejected the prosecution should inform the parties of its claim construction by the contract rights or claim rights to the contract, the construction side. If the actual construction side and the construction side in the performance of the construction has become a de facto contract rights and obligations, contract rights or do not advocate the construction side because of bankruptcy, suspension of business licenses and other reasons can not claim the rights, the actual construction side can be filed as subjects of rights proceedings. Construction side of the contract did not participate in the proceedings as a subject of litigation, but also added it as a litigant.
3, on the construction side of the contract will be contracted illegal subcontracting, sub-project lead to avoidance of the contract price settlement. The existence of such disputes as are contracting and subcontracting, contracting and sub-two contracts should be adhered to the principle of claiming rights under the contract, no contractual relationship and not the construction of additional parties, the actual construction side for the litigants.
(b) construction contract null and void after the treatment of quality problems
should be noted that the amount of compensation and the amount of loss is not the same concept. The amount of losses, respectively, with the amount of compensation shall be determined later, can generally be deducted for projects approach to construction contract is not valid in cases of quality problems.
(c) on the
on the If the contract is valid, should project the amount of the settlement. If the contractor caused by the construction schedule, the Employer may pursue the breach of contract, the contractor has been put into the construction costs and truly settled; valid contract is to calculate the main part of the project has been completed the ratio of the total quantities, as determine the amount of project funds. If the contract is invalid, null and void the contract principles should be accounted for direct costs of the contractor, the agreement is not clear, when released in accordance with relevant state departments annual fixed fee of the standard calculation.
on the
five construction contract disputes heard in several physical problems
(a) the commission on the identification of construction issues
1, trial practice to master the three principles should be:
(1) the Employer and the Contractor for project settlement negotiations, signed the book project settlement, in the case, in principle, the project signed between the two sides finalized a settlement based on the book, book a party disagrees with the project settlement People's Court is requested to provide expert, in principle, to the commission identified. Project funds in the event of dispute, if the parties have not previously agree on the amount of the project, and subsequently has not to hire people for projects identified were identified to reach agreement, both sides hired expert witnesses should be to provide proof of Project Payment .
(2) in the first instance court of first instance during the building works commissioned to identify the units and the referee shall make the second instance court of first instance during the party entrusted to the expert disagrees with the conclusion made in identification of re-identification of applications, in principle, I commissioned the identification, but in accordance with Supreme Court Supreme [2001] No. 33 disagrees with the conclusion made in identification of application for re-identification, present evidence to prove the existence of the following circumstances, the court should be allowed:
① accreditation bodies or identification of officers do not have the relevant qualifications identified;
② identification procedures serious violations;
③ based expert conclusion was inadequate;
After cross-examination identified
④ not be used as evidence in other cases.
conclusions on the identification of defective, you can add authentication and re-added cross-examination cross-examination or other methods to solve, not re-identification.
According to November 16, 2001 release and the implementation of the common external accreditation bodies to provide expert opinions. Article XIV:
(1) identification of identification of people do not have the relevant qualifications; (2) identification of programs do not meet legal requirements; (3) expert conclusions conflict with other evidence; (4) identification of material false, or the original identification method defects; (5) should be avoided appraiser did not shy away, but their identification dissenting conclusions; (6) identification of the same case with a number of different conclusions; (7) the impact of expert evidence to prove the existence of accurate identification of factors.
(3) qualification to the principle of Quality Supervision, Inspection Station on the issue of quality assessment is based on the book.
2, project quality and project cost a department to determine.
① quality of the project appraisal department. Governments around the building belongs to the administrative department of Construction Engineering Quality Supervision and Inspection Station.
② project cost appraisal department. Construction and management of urban and rural parts of the relevant departments involved in project planning, design, construction, installation, cost and other issues were identified.
③ audit institutions of the audit opinion can not be determined for projects as a direct basis, construction contract unless both parties expressly agreed to this. According to China's Article XX of the Act: problems of supervision. Revenue and expenditure for the violation of provisions of the act, audit institutions have the right to be punished, stop, and ordered to correct, if we find two parties conspired maliciously harm the national interests of the audit institutions have the right to be punished. Audit institutions such problems are found and conclusions made in the audit finds that the facts can be identified as determining factors to be considered null and void the contract. Auditing in nature is an administrative oversight, the audit authority as the executive authorities of the project funds can not generally be calculated to determine the decision. Because the construction cost issues related to the agreement of both parties shall be resolved by the parties in accordance with the agreement. Even after a dispute in the engineering section, the project shall be identified, also identified by the specialized agencies and administrative departments of construction to determine, and not by the audit institutions to Resolve the problem, otherwise, and the audit institutions is clearly incompatible with the duties . Of course, the audit opinion can be used as an evidence, a reference to the Court decision, but the views can not be used as the main basis for decision.
3, commissioned by a department of the qualification.
(1) examine whether the statutory identification of qualifications; (2) review of business licenses issued; (3) review of identification of qualification, technical strength, reputation, etc.; (4) review whether the interest with the parties to the case.
4, the effectiveness of expert conclusion on the commission found.
(1) commissioned the expert conclusion. Expert conclusions, also known as expert opinion or expert advice (as distinguished from ordinary witness testimony), is the identification of people use their technical expertise, skills, technology and various scientific instruments, equipment, etc., according by a party to the consultations the parties , the court appointed or commissioned in the litigation, certain special problems for analysis, after identification of the concluding observations. Appraisal concluded that the litigation is an important evidence.
(2) Validity. After cross-examination after the expert conclusion, to determine its probative force and the probative force of the size, usually from the judge to review the following areas:
① ability to identify whether the person has identification;
② means of identification is the identification of people with science;
③ appraiser involved in a case or cases dealing with whether the result of interest;
④ expert identification of materials used are sufficiently reliable;
⑤ expert conclusion to the other evidence linking co-review judge to see whether the expert conclusion is consistent with other evidence, such as inconsistent, we must carefully verify, can not take a simple positive or negative attitude. People's courts to provide expert appraisal conclusion made by the department,
cheap prada handbags, the parties do not have enough evidence and reason to refute the contrary (ie identification and the other evidence to contradict the facts) may be found to prove the force.
(b) The amount of the damages calculation
statutory liquidated damages penalty minutes with the agreed liquidated damages,
(1) the amount of liquidated damages is both a pre-determined;
(2) breach of contract is - kind of post-default remedies;
(3) payment of liquidated damages is independent of the performance of acts other than the benefits. In other words, if a party does not specifically agreed to pay liquidated damages of behavior is not a substitute to perform the contract, the parties shall pay a penalty after being exempted from the obligation to perform the principal obligation (the
1, liquidated damages provisions of the applicable general principle.
(1) contract agreed liquidated damages by specific agreement, no agreement on liquidated damages or agreement is not clear, there is no agreement by treatment.
(2) the calculation of liquidated damages based on the total contract price.
(3) generally agreed amount of liquidated damages does not exceed the price of the unperformed portion of the contract total amount is limited.
2, the calculation of liquidated damages for late payment, the calculation should be attention to the different reference periods.
Since 1996, the People's Bank of China has four times the standard calculation of adjusted overdue penalty interest, namely, five ten thousandths in order to adjust for the day, day four ten thousandths, day ten thousandths, ten thousandths points at three. Penalty happens if you do not take into account the period, all five ten thousandths daily or calculated at four ten thousandths, etc., is inconsistent with the People's Bank of China late penalty interest calculated on the standard requirements. Second, the Supreme Court by the people of the view that the proper penalty method formulation is: a certain date from the late penalty until the date of payment, according to the same period under the People's Bank of China late penalty be paid the standard calculation . In accordance with the February 16, 1999 the Supreme People's Law Enforcement Release 〔1999〕 8 Release 〔2000〕 34 can refer to the People's Bank of China's financial institutions, interest on past due loans to the calculation of the standard calculating late payment penalty. People's Bank of China to adjust past due loans to financial institutions, the criteria of interest, the court may calculate a corresponding adjustment to the calculation of liquidated damages for late payment standards.
4, penalty and fine on the contract, or only the agreed penalty, as long as the amount does not exceed the total non-compliance with section can be fine as a penalty processing.
(c) On the application of damages
1, the types of damages
damages can be used for a variety of categories:
(1) compensatory damages and punitive damages.
primary purpose of civil liability for compensation, so the contract law to compensatory damages is based, and the penalty for the exception. Our law only punitive damages.
(2) statutory damages and contract damages.
parties to the contract a party can breach the amount of damage caused by the other party to the prior agreement, the agreement shall be agreed upon damages damages; agreed damages for breach of contract in nature very similar to gold, both in function also the risk of repetition, so contract law mainly regulates the statutory damages,
2, to determine the scope of damages. losses resulting from the breach, including the performance of the contract can be obtained after the interests of the party in breach shall not exceed the anticipated conclusion of the contract or should have foreseen the potential for breach of contract damages. loss and loss of possible benefits (benefits available after the performance of the contract), the amount of loss which may be of interest but also by two limitations: (1) predictable rules limit; (2) reduce the loss rules limit (the nineteen states: party in breach shall 。
3, specific for damages. (1) single application of damages. In general, the contract agreed liquidated damages shall be regarded as a pre-determined amount of damages, so the agreed liquidated damages and can not co-exist. (2) and the penalty also applies to make up for losses. Liquidated damages and statutory damages can co-exist, involving the application of liability for breach of whether actual damage occurred as well as elements of state intervention in the issue of liquidated damages. In principle, can be said that the application of liquidated damages is not the premise of the actual damage occurred, regardless of whether damage has occurred, the parties should pay the penalty. On the other hand, the parties have agreed the amount of liquidated damages may be liquidated after the great losses caused by inconsistent loss of balance caused by the interests of the parties, it is the intervention of the law of liquidated damages is very necessary. , a party may request the people's court or an arbitration institution to an appropriate reduction. It can be seen from this provision, although not to the application of liquidated damages for the elements of actual damage, but the size of the final determination of the amount of liquidated damages and the actual amount of loss is no doubt closely related; court or arbitration body to adjust the amount of liquidated damages based on actual loss as a reference standard.
of penalty and statutory damages are available for between three sentences sum it up: First, in principle, coexist; the second is not on the high low; third priority for liquidated damages clause.
(d) on the project is put into use without the acceptance of responsibility for quality issues
Engineering Contract Regulations, According to the above requirements, the Employer without the acceptance of works, that is put into use, the responsibility of the Employer, the Contractor shall not be recognized by the Employer quality problems themselves. changed, I think: without the completion and acceptance, the developer in advance to use the building, found by using the foundation and main shortcomings of the quality problem of the safe use of the building, the contractor shall bear civil liability. Employer can prove that quality of the project does not meet the stipulated quality standards, is the builder cut corners, use of substandard materials, or not according to design drawings, technical standards due to construction, construction shall bear civil liability. Or exposed to other quality of the rectification, the construction people do not bear civil liability, rework and repair costs borne by the Employer.
(e) of the Construction Contractor's statutory priority (value of the project priority) problem.
nature should not be discounted, other than the auction, the contractor may enter Agreement to liquidate the project, but also may apply to court to auction the works. in respect of construction works price of the auction price discount or priority for repayment. >
1, to the correct application of this section, the key is the correct interpretation of the nature of this article.
CASS Institute of Law's Professor Liang
researchers believe that the article from the design, drafting, revision, until the formal adoption consideration, always refer to the Legal Hypothec. Legal Hypothec exercise conditions are: the contractor issue a summon to the contract after a reasonable period after notification, the Employer has not paid. Legal Hypothec and general mortgage in the case of co-existence, regardless of the mortgage agreement or in the front, the Legal Hypothec exercise should be better than the mortgage agreement. There are four main reasons: First, the statutory right should take precedence over contract rights; the second is to consider from a legal policy, Legal Hypothec the secured claim of a considerable portion of the wages of construction workers,
prada shoes, should give priority to; third construction relies on advance funds to pay the contractor the construction work and, if allowed to give priority to the exercise of the mortgage agreement, there was no different from the contract funds to pay off the debt but also the Employer, the Employer equal to the debt passed on to their contractors who belong to the third , contrary to the principles of fairness and good faith; Fourth Legal Hypothec contractor, the contractor is legally protected interests in particular given the right to protect the interests of workers and encourage the construction, the purpose of creating social wealth.
We drafted the Supreme
mortgage or lien. The so-called priority, is provided directly by the law of the special creditor the right to enjoy the priority in compensation. Required by law to priority claim all the property of the debtor as general priority priority; to the priority of a particular priority for repayment of property as a special priority. The definition of priority that has the following meanings:
(1) legal basis for legislative policy priority is to safeguard social justice and social order and given a special creditor rights, their role is of special types of individual claims to special protection, rather than the parties established on the basis of equality for a particular claim special protection. In accordance with national law, the main priority of the priority public costs, employee salaries with the labor of priority, the priority of labor compensation for accident casualties, funeral costs of priority, the last priority of medical expenses the cost of living and debtors and their dependents priority , the construction priority and so on.
(2) priority is provided directly by the law the security interest, belonging to a security interest. Priority can not be agreed upon by the parties, but provided directly by the law, so it is different from the agreement by the parties, mortgage, pledge, and similar liens. But the priority is not to occupy the property of the debtor as a precondition.
(3) priority is the debtor of all property and property-specific secured debt of special security interest. Can be both the subject matter of priority all the property of the debtor, the debtor may be a specific property, but not a third person's property.
(4) do not need more publicity priority security interest. Set security interest in Civil Law, in principle, equivalent elements need to be publicized, otherwise, the security interest can not be established or can not have effect against third persons. The right of priority based on its legal nature, most national laws, its not registered, nor in possession of the debtor's property as of Essentials.
(5) is the value of the priority right, the right to change prices. I agree with the views of Supreme People's Court.
2, the premise of the exercise of the statutory priority
priority on the exercise of the statutory prerequisite, including the right of priority the need for statutory registration, and whether the exercise of the statutory priority of the project after final acceptance.
The author believes that the statutory priority without registration, for two reasons: First, A major aspect; general collateral mortgage was only after registration with the publicity effect, it has effect against third persons. Because the priority is statutory, not registered. Second, require the Contractor to be registered if there are certain difficulties, because the contractor was established in the construction contract is impossible to know whether the Employer fails to pay for projects, even after the completion of the project, the developer fails to pay for projects, contractors shall not exercise its statutory priority, according to the law must first summon the Employer the Contractor within a reasonable period to pay the price, only after receiving demand, people still do not meet the project contract price, the contractor can exercise Legal Hypothec.
on whether the exercise of the statutory priority project completion acceptance as a precondition, a view that the contractor after the completion of the exercise of statutory priority project has its practical significance, because only after the completion of the project, project quality and condition of all can ascertain, the entire amount of the claim can be determined. If a default occurs on the exercise of their rights, then occurrence of another exercise, not only would complicate the issue, and contrary to common sense. But in fact this restriction is inconsistent with the actual situation of construction project. According to the building industry, trade practices, and the State Ministry of Construction and Industry Bureau and the relevant provisions of the agreement on the value of the project in general should include the project advances (also known as preparation section); progress payment (also called for projects, usually in the compliance process the image of progress payments by about 90%); performance pay various fees for the course, extended period, compensation for loss of the visa section confirmed the Employer; settlement amount after completion of the works and should be returned to the performance bond and warranty payments and other security properties 5 kinds of the contract price. This 5 different forms may occur in the contract price upon completion of the settlement process, and often occurs in the middle of cessation of the questionable, because in practice the agreement to pay the contract price not only in completion.
3, Priority Claim and the starting point of the exercise period:
priority claim to exercise the provisions of the period, prompting the contractor to exercise the right of priority for repayment, the main purpose is to maintain trade order and safety, protection of banks and other third party interests. Maritime and Civil Aviation of China have provided on the exercise of the priority period for 1 year maritime liens and civil aircraft, the priority for 3 months. point: from the date of completion of construction projects or construction contract completion date. Projects have been completed, since the actual date of completion; of unfinished projects, commonly known as
the Recently, many works have been completed or have been completed in accordance with the agreement, and therefore to equal protection of the legitimate interests of the contractor,
4, the contractor to exercise the statutory right of priority conditions (judicial interpretation of the Supreme Court opinion)
(1) a lawful and valid construction contract;
(2) project has been completed, a final acceptance certificate; (The author believes that the principle of priority for repayment of the construction project should be completed on the project, but due to reasons not attributable to the cessation of the construction contractor, and commonly known as on schedule,
(3) the amount of project funds have been identified;
(4) the contractor has paid the developer a reasonable time of receiving demand (usually not less than three months).
5, does not apply
in the following cases, even if the developer still owed the contractor the contract price, the court should not apply to / p>
(1) Although the works across the
(2) valid construction contract.
(3) the nature of construction projects should not discount the auction. That construction materials are prohibited by law and limit circulation flow objects have the following main types: ① national public works, such as government agencies, military defense projects; ② social utility, public works, such as libraries, hospitals, schools, roads and bridges, water environmental protection engineering facilities; ③ earthworks, underground works and other works hidden.
(4) real estate development projects, such as purchase of real estate consumers to deliver all or most of the money, as a priority the protection of consumers (survival) interests, should not apply to enjoy the priority claim.
(5) as a third of all construction projects.
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