This answer is formulated on the basis of the Civil Code of the People's Republic of China, the Supreme People's Court's Interpretation (1) on Issues Concerning the Application of Law in the Trial of Cases of Disputes over Construction Contracts, and other laws, administrative regulations, and judicial interpretations, combined with trial practice, so as to unify the adjudication standards and guide the correct trial of construction contract dispute cases.
1. How to determine whether it is a project that must be tendered?
Answer: The review of whether the construction project belongs to the scope of the project that must be tendered shall be determined in accordance with the "Bidding Law of the People's Republic of China", "Regulations on the Implementation of the Bidding Law of the People's Republic of China", the National Development and Reform Commission's "Regulations on Engineering Projects That Must Be Tendered" (Order No. 16 of 2018), and "Regulations on the Scope of Infrastructure and Public Utilities Projects That Must Be Tendered" (Development and Reform Regulations [2018] No. 843) and other relevant regulations.
If the project is a project that must be tendered at the time of the conclusion of the contract, but it is a project that is not subject to bidding before the lawsuit is filed, it may be determined that the construction project is a project that is not required to be tendered.
2. Does the contractor of the decoration contract not have the corresponding construction qualifications affect the validity of the contract?
Answer: Decoration projects can be divided into industrial decoration projects and family room decoration projects. The contractor of the industrial decoration project shall have the corresponding construction qualifications, and the decoration contract signed without the corresponding construction qualifications or beyond the qualification level shall be deemed invalid. If the contractor of the family room decoration project does not have the corresponding construction qualifications, the validity of the decoration contract shall not be affected, except where the decoration activities involve changes in the main body of the building and the load-bearing structure, or the contractor shall have the corresponding construction qualifications as required by laws and regulations. Under normal circumstances, the decoration object of the family room decoration project should be the residential room, and the decoration of non-residential buildings such as commercial rooms and office buildings does not belong to the family room decoration project. The main body of the family room decoration project should be the owner or residential user, and the batch residential decoration implemented by the construction unit for the sale of finished houses generally does not belong to the family room decoration project.
3. Does the contractor of the construction contract for the construction of farmers' self-built buildings not have the corresponding construction qualifications affect the validity of the contract?
Answer: If a farmer's self-built house with less than two floors (including two floors) belongs to the "low-rise house built by the farmer" as stipulated in Article 83 of the Construction Law of the People's Republic of China, and the contractor does not have the corresponding construction qualifications, it will not affect the validity of the construction contract. Where farmers build their own residential buildings with more than three floors (including three floors) or build non-residential buildings by themselves, the contractor shall have the corresponding construction qualifications, and the construction contracts signed without the corresponding construction qualifications or beyond the qualification level shall be deemed invalid.
4. How to deal with the contractor's request for the employer to pay the project price, and the employer claims that the quality of the construction project does not conform to the contract or the law?
Answer: If the contractor requests the employer to pay the price of the project, and the employer claims its rights on the grounds that the quality of the construction project does not conform to the contract or the provisions of the law, it shall be dealt with separately according to the circumstances:
After the completion and acceptance of the construction project, if the employer claims rights on the grounds that the quality of the construction project does not conform to the contract or the provisions of the law, the people's court shall inform it to handle it in accordance with the provisions on the liability for quality defects and warranty liability of the construction project.
Where the employer refuses to pay the price of the construction project or claims liability for quality defects on the grounds that the quality of the construction project does not conform to the contract or the provisions of the law after the employer uses the construction project without authorization, the people's court shall not support it, unless the employer has evidence to prove that there are major quality problems in the foundation works and the main structure works.
If the construction project has not been completed and accepted for completion and has not been used by the employer without authorization, the contractor shall make a separate disposition according to the specific content of the employer's defense:
(1) Where the employer refuses to pay for the project on the grounds that the quality of the construction project does not conform to the contract or the provisions of the law, and the employer adduces evidence to prove that the project has not been completed and accepted due to the contractor's reasons or applies for judicial appraisal to confirm that the quality of the construction project is not up to standard, the people's court shall support it;
(2) If the employer claims to reduce the payment of the project price in accordance with Article 12 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (I), and the employer can provide evidence to prove the amount of the project price that should be reduced or the reasonable repair costs, the people's court may deduct it from the project price;
(3) If the employer claims that the contractor shall bear liquidated damages or compensate for reasonable expenses such as repair, rework or reconstruction in accordance with Article 16 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (I), the people's court may notify the employer to file a counterclaim.
Fifth, the parties request to audit the audit opinion as the basis for determining the cost of the project, how to deal with?
Answer: the construction contract does not stipulate that the project cost shall be subject to the audit opinion of the audit unit or the evaluation conclusion made by the financial evaluation agency, and the parties request to the audit opinion made by the audit unit and the evaluation conclusion made by the financial evaluation agency as the basis for determining the project cost, the people's court shall not support it.
If the construction contract stipulates that the project cost shall be subject to the audit opinion, but the audit unit fails to issue an audit opinion, the people's court shall review the reasons for the failure of the audit unit to issue an audit opinion, and deal with it separately in different circumstances:
(1) If the contractor fails to conduct the audit in a timely manner due to the contractor's reasons, if the contractor fails to submit the completion settlement materials required for the audit as agreed, and the contractor requests to determine the project cost by applying for judicial appraisal, the people's court shall not support it;
(2) If the employer fails to conduct the audit in a timely manner due to reasons attributable to the employer, if the employer fails to submit the audit in a timely manner or fails to submit complete audit materials after receiving the completion settlement materials submitted by the contractor, it may be deemed that the employer has improperly prevented the achievement of the conditions, and if the contractor requests to determine the project cost by applying for judicial appraisal, the people's court shall support it;
(C) due to the audit unit is not issued in a timely manner, the people's court may write to the audit unit within a reasonable period of time to issue an audit opinion. If the audit unit fails to issue an audit opinion within a reasonable period of time and fails to make a reasonable explanation, the contractor requests to determine the project cost by applying for judicial appraisal, and the people's court shall support it.
6. How to deal with the management fee agreed in the construction contract of an invalid construction project?
Answer: If the subcontractor, illegal subcontractor, or construction enterprise that lends its qualifications has already collected management fees, and the actual constructor requests a return on the grounds that the construction contract is invalid, the people's court will not support it.
Where a subcontractor, an illegal subcontractor, or a construction enterprise that has lent its qualifications that has not actually participated in the construction or organized management and coordination, requests that the actual constructor pay management fees in accordance with the provisions of the invalid construction contract, the people's court will not support it.
Where the actual constructor requests that the subcontractor, illegal subcontractor, or construction enterprise that lends qualifications pay for the project including the management fee, the part of the management fee will not be supported.
7. The construction contract stipulates that the project cost shall be subject to the advisory opinion of the third party, and whether the advisory opinion issued by the third party unilaterally entrusted by one party can be used as the basis for determining the project cost?
Answer: If the construction contract stipulates that the project cost shall be subject to the consulting opinion of the third party, but does not agree on a specific unit, the parties jointly entrust a third party to review the settlement information and clearly indicate that they are bound by the advisory opinion, and the project cost can be determined according to the advisory opinion.
In principle, the advisory opinion issued by one party unilaterally entrusting a third party to review the settlement information such as the pre-settlement statement cannot be used as the basis for determining the project cost, except for the fact that both parties expressly accept the constraints of the advisory opinion through the entrustment contract or other means.
8. How to determine the internal contracting contract relationship and its validity?
Answer: If a construction enterprise hands over its own contracted projects to the employees of the enterprise or its subordinate branches with which it has established labor relations, uses the specific means of production of the construction enterprise to complete the construction of the project, and reaches an agreement on the relevant management rights, profit distribution, risk bearing and other matters, it belongs to internal contracting. Where a party claims that the contract is invalid on the basis of the provisions of Article 1, Paragraphs 1 and 2 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts, the people's court shall not support it.
In trial practice, the following circumstances may be combined to comprehensively determine whether it is an internal contracting:
(1) If the internal contractor is a subordinate branch of the construction enterprise, whether there is a subordinate relationship between the internal contractor and the construction enterprise to manage and be managed;
(2) If the internal contractor is an individual, such as an employee of the enterprise or a registered project manager, whether there is an employment relationship between the contractor and the construction enterprise;
(3) Whether the internal contractor carries out the project construction under the management and supervision of the construction enterprise, and whether the use of the construction enterprise's construction qualifications, trademarks, and enterprise names is an act of duty;
(4) Whether the project manager or other on-site management personnel at the construction site accept the appointment, dismissal, transfer and employment of the construction enterprise;
(5) Whether the construction enterprise supports the construction enterprise in terms of funds, technology, equipment and manpower required by the contractor to organize the construction of the project;
(6) Whether the contractor and the construction enterprise share profits and risks.
9. How to determine the scope of the actual constructor in a construction contract dispute?
Answer: The actual constructor refers to the entity that actually completes the construction of the project in the construction contract that is found to be invalid in accordance with the law. The definition of the identity of the actual constructor shall be comprehensively determined in combination with factors such as the final actual investment of funds and materials, and the organization of project construction. Where migrant workers or labor teams who are only engaged in labor operations in the construction industry do not fall within the scope of actual builders, and their claims against the employer, subcontractor, or illegal subcontractor in accordance with the provisions of Article 43 of the Interpretation (1) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts, the people's court will not support it.
10. How to deal with the actual contractor's lawsuit against the subcontractor, the illegal subcontractor and the employer to claim rights, and the subcontractor, the illegal subcontractor and the employer as co-defendants?
Answer: If the actual constructor claims contractual rights against the subcontractor or illegal subcontractor of the other party of the contract, and at the same time requests the employer to bear responsibility within the scope of the outstanding project payment, the people's court shall accept it in accordance with law. However, if the actual constructor in a multi-level subcontracting or multiple subcontracting relationship claims rights against the employer in accordance with Article 43 of the Interpretation (1) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts, it shall not be supported.
11. After the notice of winning the bid is issued, how to deal with the refusal of one party to sign the contract without justifiable reasons?
Answer: After the notice of winning the bid is issued, if the winning bidder refuses to sign the contract and claims to return the bid deposit, the people's court will not support it. When the tenderer refuses to sign the contract without justifiable reasons, it constitutes a breach of contract, and when there is no agreement on the liability of the tenderer for breach of contract, the winning bidder requests the tenderer to return the bid bond and compensate for the loss with reference to the amount of the bid bond, the people's court shall support it.
After the notice of winning the bid is issued, if one party does not enter into a contract with the other party without justifiable reasons, or puts forward additional conditions that deviate from the substantive content of the bidding documents when signing the contract, it shall be deemed to refuse to sign the contract.
12. How to determine the validity of the non-mandatory bidding project that has carried out the bidding procedure, but before the bidding begins, the two parties have conducted substantive negotiations and concluded the contract?
Answer: In the non-mandatory bidding project, the parties choose to enter into a construction contract through the bidding and bidding procedures, which shall be subject to the constraints and adjustments of the Tendering and Bidding Law of the People's Republic of China, and conduct substantive negotiations and sign the contract before winning the bid, which is an act of substantive negotiation of "first deciding and then bidding", which violates the mandatory provisions of Article 43 of the Tendering and Bidding Law of the People's Republic of China and shall be invalid.
13. The construction contract of the construction project stipulates that the project price shall be settled at a fixed price, and the project quantity or quality standard changes due to design changes, and the parties request to adjust the project price.
Answer: If the parties agree to settle the project price according to the fixed price, within the risk scope and risk cost agreed in the contract, it shall be executed in accordance with the contract, and if one party requests to appraise the project cost and settle according to the appraisal conclusion, the people's court will not support it. If the quantity or quality standard of the construction project changes due to the change of design, and the parties request that the project price be adjusted, if the contract has an agreement on the calculation method of the project price adjustment, it shall be in accordance with its agreement; New technology and other items that are not specified in the pricing method or pricing standard issued by the construction administrative department can be settled according to market conditions.
14. How to deal with the fixed price settlement of the project price stipulated in the construction contract of the construction project, and the price of the main building materials changes significantly in the process of performance, and the parties request to adjust the project price?
Answer: in the process of performing the fixed-price construction contract, the price of steel, cement and other major building materials that have a greater impact on the project cost has undergone major changes, beyond the scope of normal market risk, and the contract has an agreement on the calculation method of risk adjustment of building materials price changes, it shall be adjusted in accordance with its agreement; if there is no agreement or the agreement is unclear, and the parties request to adjust the project price, it shall be handled with reference to the provisions of Article 533 of the Civil Code of the People's Republic of China.
The contractor shall bear the risk of changes in the price of building materials caused by the delay in the construction period or the supply time of building materials due to the contractor's reasons, and the people's court shall not support the contractor's request to adjust the project price.
The fixed-price contract stipulates that the contractor bears unlimited risks, all risks, or similar clauses that do not specify the content and scope of risks, and are not binding on both parties.
15. How to settle the construction contract that stipulates that the project price shall be settled at a fixed total price, and the performance will be terminated before the construction is completed?
Answer: If the construction contract stipulates that the project price shall be settled at a fixed total price, and the performance shall be terminated before the construction is fully completed, and the quality of the constructed part of the project is qualified, and the contractor requires the employer to pay the project price, the "price proportion method" can be adopted, and the appraisal agency shall determine the proportion of the completed project in the whole project according to the construction project quota and related supporting documents where the project is located, and then multiply the fixed total price agreed in the contract by the proportion to determine the project price payable by the employer (i.e., the price of the completed part of the project =). Fixed total price ×）。
16. When does the priority right to compensation of the construction project price start?
Answer: The time limit for the contractor of a construction contract to exercise the priority right to be compensated for the construction project price shall be calculated from the date on which the employer shall pay the construction project price, and the parties have not agreed on the payment time or the agreement is unclear, and the contractor's request to determine the time for the payment of the project payment shall be determined in accordance with Article 27 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (1), and the people's court shall support it.
XVII. After the transfer of the creditor's right for the construction project price, does the transferee enjoy the priority right of repayment?
Answer: The right of priority to be compensated for the price of a construction project is a statutory priority, and the subject of exercise should be limited to the contractor who has formed a construction contract relationship with the employer