Article 788 of the " Civil Code " stipulates that construction project contract is a contract in which the contractor conducts the project construction and the contractor pays the price. Construction project contracts include engineering survey contracts, engineering design contracts and construction contracts . Therefore, in the construction contract relationship of construction projects, paying the project price is the main obligation of the contractor. The contract purpose of the contractor to carry out the project construction is to obtain the project price in accordance with the law; however, the problem of undertaking the project payment is relatively serious in engineering practice; the author reads 1,164 judicial documents for construction project construction contract dispute cases heard by the Supreme People's Court, and most of the cases involve the issue of project price.
is based on 1,164 judicial documents read by the author, and refers to some judicial documents released by the Higher People's Court of Local . The following analysis is made on the issues involved in the project price dispute for reference.
01 Actual construction worker
1. Can natural persons obtain fee as actual construction worker?
Answer: Fees refer to fees that must be paid or collected by provincial governments and relevant provincial power departments in accordance with national laws and regulations. There are no clear provisions on whether natural persons can obtain fees as actual construction workers. In the ruling No. 5453 of the Supreme People's Court (2019) Civil Administration, the Supreme People's Court pointed out that the original judgment was determined by the provisions of " Ministry of Housing and Urban-Rural Development and the Ministry of Finance on Issuing the "Composition of Construction and Installation Projects"" and it was determined that the person who paid the fees and enterprise management fees was an enterprise rather than a natural person. Ma Mouying did not have construction qualifications and fee qualifications, and it was not improper to pay fees and enterprise management fees to Ma Zhanying. However, according to the Supreme People's Court's Judgment No. 1549, a natural person who is an actual construction worker can obtain a labor insurance fund (refer to the Supreme People's Court's Judgment No. 724 of the Supreme People's Court's Judgment No. 724, the labor insurance fund consists of pension insurance premiums, medical insurance premiums, unemployment insurance premiums, maternity insurance premiums and work-related injury insurance premiums.)
2. Can a natural person make a profit as an actual construction worker?
Answer: According to the provisions of the "Composition of Construction and Installation Project Costs", the project price includes profit.
Reference case: (2019) Supreme Court Civil Final Judgment No. 1549 pointed out: For construction profits. Jingwei Company believes that the contract is invalid and Wu should not obtain the project profit. In this case, Jingwei Company subcontracted the project involved in the case to an unqualified individual Wu, and Jingwei Company was at fault for the invalidity of the "Project Construction Power of Attorney". In the first instance, the management fee collected by Jingwei Company was deducted in accordance with the provisions of the "Project Construction Power of Attorney". If the profit is deducted, the profit will be obtained by Jingwei Company. Jingwei Company illegally subcontracted the profits that the actual construction worker should have obtained, which not only violates the provisions of the "Project Construction Power of Attorney", violates integrity, but also is unfair. Therefore, the reason for Jingwei Company's appeal to deduct construction profits is not valid.
Other reference cases: (2020) Supreme Court Civil Final Judgment No. 898
3. Can natural persons, as actual construction workers, obtain enterprise management fees?
Answer: There are no clear provisions on this regard.
Reference case: (2020) Supreme Court Civil Final Judgment No. 898: Baye Company and Baye Xining Branch appealed that management fees, project fees and material invoice taxes should be deducted from the owed project payment. This court believes that Baye Company and Baye Xining Branch are professional construction companies. They have obvious faults in subcontracting the project involved in the case to individuals without corresponding construction qualifications. The "Agreement" signed by Baye Xining Branch and Li Mouchu is an invalid contract, and he cannot provide evidence to prove that he actually participated in the relevant management of the project construction, and did not submit evidence to prove the correlation between the invoice of invoices and this case. This appeal request lacks basis and is not supported.
(2019) Supreme Court Civil Expo Rule No. 5453: Ma Mouying and Runsen Company did not sign a written contract to stipulate the scope of payment of the project price, nor did they submit evidence to prove that the fees and enterprise management fees were actually generated.According to the provisions of the "Notice of the Ministry of Housing and Urban-Rural Development and the Ministry of Finance on Issuing the "Composition of Construction and Installation Projects"", the original judgment determined that the person who pays the fees and enterprise management fees was an enterprise rather than a natural person. Ma Mouying did not have construction qualifications and fee qualifications, and it was not improper to pay the fees and enterprise management fees to Ma Mouying.
4. Who will bear the insurance costs incurred by the actual construction worker?
Answer: The actual construction worker should bear the responsibility. Reference case: (2020) Supreme Court Civil Administration Ruling No. 4170: As for the insurance premium of 100,000 yuan, Cai Mouyong, as a labor contractor, established an employment relationship with migrant workers, and Cai Mouyong is obliged to bear the insurance premium.
5. If the actual construction worker claims that the contractor is liable within the scope of owed project price and interest, does it support it?
Answer: If the actual construction worker claims that the contractor is liable within the scope of owed project price and interest, the people's court shall support it.
Reference case: (2020) Supreme Court Minsheng Ruling No. 3929: Regarding whether the joint and several liability of Intime Company includes the interest on the project funds. The interest on the project payment is statutory interest on . The original judgment determined that Intime Company should pay the interest on the arrears of the project payments involved in the case in accordance with Article 26 of the "Judicial Interpretation of Construction Engineering (I)" and there is no lack of legal basis.
6. During the layers of subcontracting, can the actual construction worker require all subcontractors and illegal subcontractors to pay the project price?
Answer: There are no clear provisions on this regard. You can refer to Article 23 of the "Answer of the Jiangsu Higher People's Court on Several Questions Concerning the Trial of Construction Contract Disputes Cases (June 26, 2018)": If the front-hand subcontractor or the illegal subcontractor cannot provide evidence to prove that he has paid the project price, the actual construction worker may require the front-hand subcontractor or the illegal subcontractor to pay the project price within the scope of the project payment owed.
02 Social insurance premiums, safe and civilized construction fee
7. If the contractor pays social insurance outside the project location and cannot prove that the fee is related to the project, should the social insurance premium be included in the project price?
Answer: If the contractor pays social insurance outside the project location and cannot prove that the fee is related to the project, the social insurance premium cannot be included in the project price.
Reference case: (2019) Supreme Court Civil Final Judgment No. 1335: Article 23.1 (1) J of the special clause for the third part of the contract involved in the case stipulates that "four insurance and labor insurance are coordinated according to the quota regulations." The "Explanation on Several Issues Concerning the Cost Quota of Shaanxi Construction Engineering, Installation Engineering, Municipal Engineering, Antique Garden Engineering and Decoration Engineering" attached to the "1999 Shaanxi Construction Engineering, Installation Engineering, Municipal Engineering, Antique Garden Engineering and Decoration Engineering Cost Quota" stipulates that construction enterprises that have participated in the four insurances will be charged each insurance premium according to the standards, and construction enterprises that have not participated in the insurance shall not calculate this fee. In the first instance, Haitian Company provided notes for its payment of four insurance fees from January 1, 2013 to December 31, 2014, but the payment location was not in Shaanxi. Haitian Company failed to prove the correlation between the fee and the project in this case. In the second instance, Haitian Company also failed to fully prove the correlation between the four insurance premium notes it submitted and this case. The first instance court did not recognize the four insurance expenses and did not include the expenses in the project cost. It determined that the project payment payable by Youli Company in this case was RMB 16429,658.6. This determination is not improper and this court maintains it.
8. The agreement is not to be calculated. Is the agreement valid?
Answer: The agreed social insurance premium will not be calculated, and the court can still include the project price after comprehensive consideration.
Reference case: (2020) Supreme Court Civil Administration Ruling No. 2649: In this case, although the parties agreed in the budget statement that pension coordination, four insurance premiums, and safety and civilized construction costs will not be calculated, the second instance court comprehensively considered that pension insurance coordination fees, four insurance premiums, and safety and civilized construction costs are non-competitive fees, and the project quality involved in the case is qualified. The parties agreed that the project cost will not be counted for labor cost adjustment, loan interest, four insurances, safety and civilized construction costs, and the total cost must also be reduced by 8% as the final settlement price and other factors, including pension insurance coordination fees, four insurance premiums, and safety and civilized construction costs in the project cost, which is not improper.
9. The agreement that safe and civilized construction fee will not be calculated. Is this agreement valid?
Answer: The agreed safety and civilized construction fee will not be calculated, and the court can still include the project price after comprehensive consideration.
Reference case: (2020) Supreme Court Civil Administration Ruling No. 2649: See the previous article for details on the specific content.
03 Labor fee
10. If the labor fee difference is not agreed, can the court make the difference according to the labor fee difference adjustment file?
Answer: If the labor fee difference is not agreed, the difference can be adjusted according to the labor fee difference file.
Reference case: (2019) Supreme Court Civil Expo Rule No. 5682: (1) Regarding whether labor costs should be adjusted. "Announcement No. 1567 of the Ministry of Housing and Urban-Rural Development - Announcement on the Issuance of National Standard Construction Project Bill of Quantity Price Standards" stipulates: "Among them, Article 3.4.1... (Article) is a mandatory provision and must be strictly implemented." Article 3.4.1 of the " Construction Project Bill of Quantity Price Standards " (GB50500-2013) stipulates: "Contracting construction projects must clarify the risk content and scope of pricing in bidding documents and contracts, and unlimited risks, all risks or similar statements shall not be used to specify the risk content and scope of pricing." Article 3.4.2 stipulates: "Because the following If the listed factors occur and affect the adjustment of the contract price, the contractor shall bear the responsibility: (2) The labor fee adjustment issued by the provincial or industry construction department, except that the contractor's quotation for labor fee or labor unit price is higher than that issued. "From the above provisions, it can be seen that in the case of Article 11 of the "Construction Project Construction Contract" in the price adjustment part of the case involved in the case does not make an agreement on the risk of labor fee adjustment, the project involved in the case shall not be withdrawn according to the labor fee standards in the fixed contract price stipulated in the "Construction Project Construction Contract". It should also be examined whether the labor fee adjustment issued by the provincial or industry construction department affects the adjustment of the contract price. According to the "Notice of the Henan Provincial Department of Housing and Urban-Rural Development on Implementing the Construction Project Bill of Quantity Price Specifications (GB50500-2013) Construction and Installation Project Cost Project Composition (Jianbiao [2013] No. 44)" (Yu Construction Biao [2014] No. 29) on "The labor cost guide price belongs to the government's guidance price and should not be included in the pricing risk range" It can be seen that the adjustment of labor cost for the project involved in the case should be adjusted based on the labor cost guide price issued by the government during the construction period. Therefore, the appraisal agency Jinding Company included the labor cost difference of 506,843.05 yuan in the change project cost of the project 2#, 6# and underground garage projects, which is not improper. The reason why Jueryi Company's application for the cost of the cost should not be included in the change project cost cannot be established, and this court will not support it.
(2020) Supreme Court Civil Final Judgment No. 849: (4) Regarding the adjustment of labor costs, Guangsha Company claims that Shaanxi Jianfa (2013) Document No. 181 should not be implemented. This court believes that if there are new documents on labor costs in the contract agreement, it shall be implemented in the new documents (except for the agreed part). At the same time, both parties have not made other agreements on labor costs. The first-instance judgment shall presumably be based on the fact that both parties conduct statistical confirmation of the project volume before the new documents are implemented, combined with the agreements of the contract agreement and the provisions of the documents, and shall accept the amount of adjustment calculated by the appraisal agency, which has factual and legal basis.
11. If the contract involved in the case is determined to be invalid, can the court make a difference in labor costs in accordance with the contract agreement and the standards of the project involved in the case?
Answer: If the labor fee difference adjustment agreement is invalid, the difference adjustment can still be made in accordance with the agreement.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1142: The contract involved in the case clearly stipulates that policy adjustments and cost management departments adjust prices fall within the scope of project price adjustment. Although the contract involved in the case is invalid, the agreement is the true intention of both parties. The first instance court applies it to the reference and adjusts the labor costs of the project involved in the case according to the Qinghai Province's cost adjustment regulations, and there is no improperness. Therefore, the first instance court, based on the appraisal opinions and the evidence in the whole case, determined that the cost of the project involved in the case should be 356767813.87 yuan (329874156.18 yuan + 8939306.89 yuan + 17954350.8 yuan), and there is nothing wrong with it.
12. If the labor fee difference is not agreed, and the national standard does not stipulate the labor fee difference for highway engineering labor fee difference, can the court calculate the labor fee difference in reference to the local housing construction and market project standard ?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Final Judgment No. 912: Delay in construction period is an objective fact. In the case where the national quota does not stipulate the adjustment of labor costs for highway projects, the appraisal agency calculates the adjustment of the difference in accordance with relevant regulations and objective reality in accordance with relevant regulations. The first instance accepts the appraisal opinion, and there is no inappropriateness.
04 Management fee (subcontracting profit)
13. If the affiliated person lends qualifications and participates in project management , can he obtain the management fee as agreed?
Answer: There are no clear provisions on this regard.
Reference case: (2020) Supreme People's Court Civil Administration Ruling No. 2954: The "Labor Subcontract Agreement" stipulates that the Northwest Company pays labor fees to Yuyuan Company at 95% of the project payments received by the construction unit each time. This article is one of the agreed contents of the two parties regarding the project price. As mentioned above, it can be applied by reference. During the original trial, Yuyuan Company recognized that Northwest Company had paid workers' wages, tower crane fees, pile driving fees, and participation in project settlement during the construction process, proving that Northwest Company participated in project management. The original judgment, referring to the contract agreement between the two parties, deducted 5% of the management fee, calculated based on 95% of the project payment paid by Century City Investment Company to Northwest Company, and there was no improper situation and there was no situation that exceeded the litigation request.
(2020) Supreme Court Civil Administration Ruling No. 6228: The first and second instance judgments have calculated Dongyang Company’s management fees based on the total construction cost of 3.5%. Dongyang Company has an affiliated construction relationship with He and Liu. He and Liu do not have corresponding construction qualifications. The "Engineering Project Responsibility Contract" signed between the two parties is invalid due to violation of the mandatory provisions of the law. Therefore, Dongyang Company claims the remaining management fees and other expenses based on the invalid contract, and its lawsuit obviously cannot be supported.
14. If the subcontractor does not provide project management, can he claim management fees in accordance with the agreement?
Answer: No.
Reference case: (2020) Supreme Court Civil Final No. 898: Baye Company and Baye Xining Branch are professional construction companies. They subcontract the project involved to individuals without corresponding construction qualifications, which is obvious fault. The "Agreement" signed by Baye Xining Branch and Li Mouchu is an invalid contract, and he cannot provide evidence to prove that he actually participated in the relevant management of the project construction, and did not submit evidence to prove the correlation between the invoice of the invoice and this case. This appeal request lacks basis and is not supported.
15. If the subcontractor provides project management, can he claim management fees in accordance with the agreement?
Answer: You can claim management fees.
Reference case: (2020) Supreme Court Civil Final No. 912: According to the "Construction Subcontract for Reconstruction Projects", the monthly settlement payment must be deducted from 3% of the management expenses of the owner's settlement project funds. The two parties also made it clear in the "Memorandum of Reconciliation" on May 20, 2015 that management fees should be deducted. The reason why Kawagoe Company claims that management fees should not be collected cannot be valid.
16. Can the subcontractor obtain the profit in accordance with the agreement?
Answer: There are no clear provisions on this regard. The "Opinions of the Jiangsu Higher People's Court on Several Issues Concerning the Trial of Construction Contract Disputes Cases (2008.12.27)" is for reference. Article 28 of the opinion stipulates that the subcontract profits may be confiscated.
05 Project price calculation
17. If the amount of material A is determined according to the quota and is included in the project price, should it be deducted according to the quota or the amount used in actual use?
Answer: It should be deducted according to the quota.
Reference case: (2018) Supreme Court Civil Final No. 920: Regarding the deduction of the amount of materials A. The dispute between the two parties is whether to directly deduct the amount of materials supplied by A according to the fixed quota or the amount used by the project.According to the first-instance judgment, the amount of material A supplied was 49842437 yuan in the total construction cost of the project during the appraisal, but only 49638180.99 yuan actually used by Dongyang Sanjian was deducted. Dongyang Sanjian explained that the difference was saved by its construction and the balance benefit should be enjoyed by it. In this regard, this court believes that the calculation method standards of the first-instance judgment are inconsistent, and the steel bars and concrete used as materials for the A-based project in the case are important materials to ensure the quality of the project. The quota is the standard dosage during normal construction. Dongyang Sanjian’s claim that it can enjoy the savings in construction, but the reason is insufficient, so it is appropriate to deduct the appraisal amount, that is, deduct 49842,437 yuan. This court will correct this determination in the first instance judgment. Yantai Jingwei's appeal claims are based on facts and this court supports it.
18. If the electricity bill collection standard is not agreed, can the electricity bill be calculated according to the fixed quota?
Answer: Yes.
Reference case: (2019) Supreme Court Civil Final No. 165: In this case, the electricity consumption during the construction period recorded by the two electricity meters at the Sihaiyuan Company’s construction site is 3401,940 kilowatt-hours. The appraisal agency's objection reply on electricity bills shows that the calculation of the electricity bill for a fixed-quota project is calculated based on the actual electricity metric multiplied by the fixed-quota unit price of 1.44 yuan per kilowatt-hour. When both parties did not agree on the electricity bill collection standard in the construction contract, the first instance court used the actual electricity consumption during the construction period of Sihaiyuan Company as the base multiplied by the fixed unit price to calculate the electricity bill, and reduced the electricity bill calculated by the appraisal opinion, which was in line with objective reality and was not improper.
19. The electricity bill has been collected according to the fixed quota. Can the contractor claim the cost of domestic water during the construction period?
Answer: Can't claim.
Reference case: (2019) Supreme Court Civil Final Judgment No. 314: Regarding the issue of domestic water and electricity bills. Kaitai Company believes that the daily water and electricity expenses borne by Kaitai Company should be borne by Cathay Company and should be deducted from the project funds after calculation through a fixed quota; Cathay Company believes that the daily water and electricity expenses are paid by Cathay Company, so this part of the expenses should be added to the project funds. The appraiser believes that the fixed amount of water and electricity bills calculated in the appraisal report include water and electricity bills for construction and water and electricity bills for domestic use during construction, and there is no problem of separately calculating water and electricity bills for domestic use. Kaitai Company expressed its recognition of the appraiser's reply. The first instance court held that according to the appraiser's reply, the fixed-quota water and electricity bills already include the construction water and electricity bills and the domestic water and electricity bills during the construction period, and the request of Cathay Pacific to increase the domestic water and electricity bills in addition to the fixed-quota water and electricity bills will not be supported.
20. If the construction elevator entry and exit and installation fees are not agreed on, can it be calculated according to the fixed quota?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1145: Whether the entry and exit and installation and demolition fees for construction elevators in building 5.1#—3# should be calculated. HSBC Xiang Company appealed that Article 4.2.2 of the construction project involved in the case stipulates that "the tower crane foundation is based on the construction organization design plan approved by Party A (excluding labor insurance fund) and the entry and exit fees, installation and demolition fees and foundation demolition fees of large equipment will no longer be calculated." Therefore, the entry and exit fees of construction elevators and demolition fees should not be calculated. This court believes that this clause does not specify whether large equipment includes construction elevators. The original court found that large equipment in this clause refers to tower cranes but does not include construction elevators, and determined that there is no inappropriate fee for entering and exiting the construction elevator in the building 1#-3#, and this claim of HSBC Xiang Company cannot be established.
21. If the tentative material price difference program cannot be executed, can the tentative material price be calculated according to the quota?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Administration Ruling No. 3557: There is evidence to prove that the original judgment determines the price difference between the high-level materials in the first phase of S1 and the low-level materials in the second phase of S2. According to common sense, both parties know when signing the first volume of the contract to agree on the approval terms for the price of the tentative material that if the scope of the detailed scope of the tentative material is not agreed at the same time, the agreement on the approval procedure will actually not be fulfilled because there is no clear scope of the approval object. However, the parties involved did not make an agreement on the detailed scope of the tentative pricing materials at that time. On the contrary, the two projects involved in the case were started separately as early as September 2011 and June 2012.Among them, the lower floor of the second phase of S2 has been suspended in September 2013. It can be seen that before clarifying the scope of the tentative pricing materials, neither party has complied with the approval procedures for the price difference of the tentative pricing materials. Until May 30, 2014, when the two parties signed the second volume of the contract involved in the case, a large amount of construction had been carried out in the project involved. Therefore, the fact that the price approval procedure for the contract involved in the case cannot be carried out is not caused by unilateral reasons of China Construction Fourth Bureau . Although the purpose of the approval procedures agreement between the two parties was to determine the actual market tentative material purchase price at that time, according to the relevant agreements in the first volume of the contract, when China Construction Fourth Bureau proposed a purchase application for tentative unit price materials and equipment, it must submit the purchase price of no less than three suppliers to Kunshan Hosheng for approval. Therefore, the tentative unit price of materials and equipment procurement prices are not equal to the actual market purchase price, nor is it equal to the actual purchase price of materials unilaterally claimed by Kunshan Hoshen’s superior group. In the case where the purchase price of the tentative price of materials cannot be determined through the approval procedures at the time of construction, even if China Construction Fourth Bureau signed the second volume of the contract to confirm the detailed scope of the tentative price of materials, the conclusion that the approval procedures are objectively not applicable to the tentative price of materials used in construction cannot be drawn that it recognizes that the tentative price of materials is denominated at the settlement between the two parties. As for Kunshan Hoshen’s claim to apply for retrial, the market procurement price provided by it unilaterally should be adopted as the unit price of the materials in the tentative price list of materials, which lacks a contract basis and does not comply with the agreement between the two parties at that time.
22. If the relevant pricing documents are not agreed to be implemented, and the contractor has constructed before the relevant pricing documents are implemented and the contract is signed after the pricing documents is implemented, can the pricing documents be executed?
Answer: No.
Reference case: (2020) Supreme Court Civil Administration Ruling No. 3463: Regarding whether the Henan Construction Standards should be implemented [2014] Document No. 29 and the project cost will be increased by 1044,649 yuan. After investigation, the start-up order for the 11th Building in the building involved in the case showed that construction began on June 27, 2014, indicating that the construction contract between the two parties will be actually performed on that day. The "Yixiangmei County Construction General Contract Contract" signed by the two parties on August 19, 2014 is a contract signed after construction. Document No. 29 of Henan Construction Balance [2014] stipulates: "This document will be implemented from July 1, 2014, and projects that have been bid for or signed before are subject to the original agreement." Since the two parties in this case did not clearly agree to apply this standard in the "Yixiangmei County Construction General Contract Contract", the first and second instance judgments determined that the project involved in the case did not apply to the Henan Construction Standard Document [2014] No. 29, and did not increase the cost, which was not improper.
23. If the tax on material supply A is not agreed to be calculated based on the fixed quota, can the tax on material supply A be calculated based on the fixed quota?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1008: Regarding the tax difference of 1054,384.45 yuan for the material supply A, the difference is the difference between the actual tax paid by the oil field development company and the tax calculated according to the fixed settlement method. The first instance court held that the settlement method implemented by the oil field development company during the development project is fixed-quota settlement. In the fixed-quota settlement, the tax collection standard for material fees is a proportional fee, and it is not the standard for the oil field development company to pay taxes by itself. Therefore, the court did not recognize the 1054,384.45 yuan of the two standard deviations as the project payment paid.However, first of all, taxes and fees are statutory funds collected by the state in accordance with the law, and the amount is determined by the tax authorities in accordance with the corresponding laws and regulations, and the amount is not determined by the parties in accordance with the autonomy of the parties or the appraisal and auditing agencies themselves; secondly, the General Articles of the "Construction Project Construction Contract" clearly stipulates that "the contractor, the contractor and their subcontractor should pay all taxes and fees that the contractor should pay in accordance with the current tax laws of the state and the current provisions of relevant departments." It did not exclude the contractor Shengxie Construction Company and the subject after illegal subcontracting, nor did it make an agreement. The tax burden shall be settled according to the fixed amount; again, when the "Construction Project Construction Contract" is signed and actually performed, Article 1 of the "Interim Regulations on Business Tax of the People's Republic of China" that has not yet expired stipulates that units and individuals who provide services are taxpayers of business tax and pay business tax. Article 16 of the "Implementation Rules for the Interim Regulations on Business Tax of the People's Republic of China" stipulates that if a taxpayer provides construction services, its turnover shall include the raw materials, equipment, other materials and power prices used in the project, that is, the laws and regulations at that time determined the status of the taxpayer as the labor provider. Therefore, when the oil field development company contracted the project to Shengxie Construction Company and Shengxie Construction Company to Lu Moumei, the oil field development company has actually provided the material supply to the project and included it in the project cost. It is only the subject of the tax payment and is not the actual obligor. The first instance court determined the tax based on a fixed-rate calculation ratio, which aroused an improper burden on the difference by the payment agency, which is an inappropriate burden on the difference. This court corrected it. The tax difference of the material supply A of 1054,384.45 yuan should be included in the project payment paid by the oil field development company. In summary, the project payment paid by the oilfield development company should be 241687143.16 yuan (240632758.71 yuan + 1054384.45 yuan = 241687143.16 yuan determined by the first instance judgment), and the project payment owed should be 32900133.16 yuan (274587276.32 yuan - 241687143.16 yuan = 32900133.16 yuan). In addition, as mentioned above, the oilfield development company's liability for payment to Lu Moumei should be limited to the scope of project payment owed to Shengxie Construction Company. One of Shengxie Construction Company and the Oilfield Development Company shall bear the project price and interest determined in the second item of this judgment in whole or part of the case, and the other party shall reduce and exempt Lu Moumei's liability for payment.
24. Should the relevant construction content be calculated based on the construction drawings or construction plans?
Answer: The project price is calculated according to the construction plan.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1145: 1#-3# roof slab, D1 garage roof slab and raft horse stool steel bar project cost is calculated according to the construction plan, 2259,815 yuan according to the drawing review minutes, or 398,358 yuan according to the construction photos. Because the construction photos were provided by HSBC Xiang Company unilaterally, it could not be confirmed that it was the construction site of the project involved, so it was not accepted. After verification, the construction plan and the drawing review minutes are consistent with the information described in the material selection and practice of the roof slabs of the 1#-3# garage roof slabs and raft horse stool steel bars, but the construction plan is shown. Compared with the drawing review minutes, the construction content recorded in the construction plan is clearer and more comprehensive. Therefore, the cost of 1132,474 yuan should be calculated according to the construction plan. The cross-examination opinions of the Si Construction Company requiring the review minutes according to the drawing review minutes and the cross-examination opinions of HSBC Xiang Company, Baofeng Group, and Baofeng Real Estate Company requiring the collection of relevant expenses according to the construction photos are not accepted.
25. Should the relevant construction content be calculated based on the construction drawings or the completion drawings?
Answer: The project price is calculated based on the completion drawings.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1145: Is the cost of plastering and ceiling decoration on the 3# floor be calculated based on the completion drawings (2237271 + 613188) yuan or according to the construction drawings (1757446 + 136106) yuan.Because the construction drawings were formed before the start of the project, there may be design changes, project increases or decreases during the construction process. If there is no change in construction, the "Complete Drawing" sign can be stamped on the original construction drawings, but the "Complete Drawing" sign is not stamped on the construction drawings, and the completion drawings involved in the case are stamped with the "Complete Drawing" sign, and the relevant personnel of the construction unit and the supervision unit are signed. The completion drawings can reflect the actual situation of the project. Therefore, the cross-examination opinions of the Fourth Construction Company are accepted. The cost of plastering and ceiling decoration on the wall of the building 3# shall be calculated according to the completion drawings, which should be 2850,459 yuan (2237,271 yuan + 613,188 yuan). The cost of floor slurry and mattressing projects on
1# and 2# should be calculated according to the completion drawing of 380,214 yuan. Since the completion drawings are signed by relevant personnel of the construction unit and the supervision unit, the completion drawings can reflect the actual situation of the project, the cross-examination opinions of the Fourth Construction Company are accepted, and the cost of the pulping and burping projects on the floors of the 1# and 2# buildings will be calculated according to the completion drawings of 380,214 yuan.
26. If the material price does not meet the requirements for the weighted average method, can it be calculated according to the arithmetic average method?
Answer: Yes.
Reference case: (2019) Supreme Court Civil Final Judgment No. 314: Regarding the unit price of material withdrawal. Cathay Pacific believes that according to the contract, the basement cement, sand and water and electricity materials should be collected from the main experience to one month before completion, and reinforced concrete bricks should be calculated from the weighted average method according to the weighted average method. The appraiser replied that the time for withdrawal has been verified and adjusted according to Cathay Pacific's claim. For the calculation method, since the appraisal materials submitted by both parties do not have the conditions to calculate according to the weighted average method, it is based on the arithmetic average method, and the arithmetic average method is the main method for calculating the price of materials under normal circumstances. The first instance court confirmed the appraiser's explanation on calculating unit prices according to the arithmetic average method, and the second instance court upheld it.
27. Should the finished door be calculated based on the net area or according to the hole size?
Answer: It should be calculated based on the net area.
Reference case: (2019) Supreme Court Civil Final Judgment No. 314: Regarding the issue of pricing for building 4-6. Cathay Pacific believes that the area should be calculated based on the size of the hole, and the appraiser calculates the area by 52,595.93 yuan in net area. The appraiser replied that according to the quota calculation method, the finished product entrance door is calculated based on the net area rather than the hole size, and the appraisal results meet the pricing specifications. The first instance court confirmed the appraiser's reply and the second instance court upheld it.
28. If the general contracting cooperation fee does not agree to include tax, can tax be calculated?
Answer: Taxes can be collected.
Reference case: (2019) Supreme Court Civil Final Judgment No. 314: According to the general rules for settlement of construction projects, taxes are generally calculated based on the direct project costs, indirect fees, etc., according to the tax rate. The general contracting and management fee is part of the indirect fee. Taxes should be calculated if the two parties do not specifically agree that the tax-inclusive price is included. This part [1895503.55+433291.8 (difference for adjustment of exterior wall insulation matching fee) + 80,000 (elevator matching fee) + (75000-14488) (difference for decoration of the hall and overhead floor of Building 1-3) + 16,000 (lighting and matching fee for building 2)]×3.477%=86,414.14 yuan should be included in the project cost.
29. Can the headquarters management fee be claimed if the project price is calculated according to the fixed quota in highway engineering projects?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 912: There is no headquarters management fee in the highway quota, and it is not improper to not calculate the appraisal agency. Kawagoe Company's claim lacks contract and legal basis, and the appeal is not supported for this point.
06 Unfinished project
30. If the contractor leaves the site halfway, can the safety and civilized construction fees and temporary measures fees be calculated based on the completed project?
Answer: Yes.
Reference case: (2020) Civil Ruling No. 3463 of the Supreme People's Court: Regarding the billing of safety and civilized construction fees, temporary measures fees, assessment fees, and reward fees.After investigation, it was found that the appraisal agency had responded to Xingyu Company's objection in the third item of "Reply to the objection of Shanghai Xingyu Construction Group Co., Ltd.". Because Xingyu Company left the market halfway, the appraisal agency calculated the safety and civilized construction fees and temporary measures fees based on the completed projects of Xingyu Company.
31. For a fixed total price contract, can the project price be calculated according to the proportional discount algorithm for unfinished projects?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Final Judgment No. 871: Since the contract between the two parties stipulates a fixed total price, the second phase of the Northern Jiayuan residential project is an unfinished project. The cost calculation principle of the unfinished project in the fixed total price contract should be based on the fixed total price, that is, based on the fixed price agreed in the contract, the project payment shall be calculated based on the proportion of the completed project to the construction scope agreed in the contract.
32. If the contractor breachs the contract and the contractor conducts on-site handover according to the contractor's requirements, can the evaluation fee and reward fee for the unfinished project be calculated in accordance with the proportion of the completed project?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1113: Regarding the assessment fee and reward fee of 1.94257432 million yuan. The "Supplementary Appraisal Opinions" issued by the appraisal agency states that the assessment fee and reward fee are fees calculated and calculated during the normal construction of the project based on the project situation. Because Hangzhou Construction Engineering Company was evacuated from the construction site after Zhongguangfa Company terminated the contract, and the "Supplementary Appraisal Opinion" also stated that the early safety and civilized measures have been invested, and the project department has not calculated the recycling and utilization of the temporary housing, and the unfinished project can still be used. Therefore, there is no improper order for Zhongguangfa Company to bear the above-mentioned assessment fees and reward fees in the first instance.
07 The contract is invalid
33. If the contract is invalid, will the agreement that the total project price drop be implemented in accordance with the implementation?
Answer: There are no clear provisions on this regard.
Reference case: (2020) Supreme Court Civil Final Judgment No. 849: The contract agreement is an invalid contract, and the agreement on a 5% reduction in the total project price is also invalid. The first-instance judgment did not reduce the total price of the project based on the principle of fairness and the actual situation of the project involved in the case, and there was no improper handling.
34. If the agreed fixed total price drops, will the cost of the completed project drop?
Answer: Can't float.
Reference case: (2020) Supreme Court Civil Final Judgment No. 337: Regarding the question of whether the total cost of the project should drop by 5%. Fujian Jiuding believes that its 5% concession commitment is based on a fixed interim price. The appraisal agency will obtain the cost based on the actual project volume and change the pricing basis. It should not drop by 5%. This court believes that the "Construction Project Construction Contract" signed by the two parties stipulates that the contract price of a single building is RMB 6279,953.08. After the total price drops by 5%, the price of a single building is RMB 5965,955.43; there are 16 buildings in the fifth section, with a total price of RMB 100,479,249.28. After the price drops by RMB 954,55286.82. The settlement terms are based on the lump-in price. The prerequisite for both parties to reach an agreement is "this total price", that is, based on the lump-in price. This case determines the project price through judicial appraisal, which changes the prerequisite for submission. Therefore, Fujian Jiuding’s claim that the total cost of the project should not be reduced by 5%.
35. The contract is invalid. Will the audit fee agreement in the contract be implemented in accordance with the reference?
Answer: You can refer to the execution.
Reference case: (2020) Supreme Court Civil Final Judgment No. 398: Jiangsu Construction Company and Jiali Development Company have agreed that "If the amount of the construction cost submitted by Jiangsu Construction Company exceeds 5% of the audit reduction, Jiangsu Construction Company shall bear the audit fee." In this case, the amount of project reviewed by Jiangsu Construction Company was 162875655.42 yuan, the amount after review was 132716459.65 yuan, and the amount of reduced amount was 30159195.77 yuan, with a review reduction rate of 18.52%, far exceeding the 5% 8143782.77 yuan. The difference between the two was 22015413 yuan. The "Construction Project Cost Consulting Contract" stipulates that "the benefit consulting fee is charged at 3% of the reduction amount". Jiali Development Company spends an additional audit fee of 660,462 yuan on the part of the Jiangsu Construction Company's excess audit reduction rate exceeding 5% (the calculation formula is: 22015,413 yuan × 3% = 660,462 yuan). Therefore, when both parties have clearly agreed, the parties' autonomy of will should be respected and should not be discretionary without a certain basis.The first instance court failed to determine the burden of audit fees in accordance with the contract. The lack of factual and legal basis is required, and this court corrects it. The audit fee of 660,462 yuan exceeding the audit reduction shall be fully included in the paid project payment.
36. If the contract is invalid and the contract stipulates that the labor insurance fund is not counted, can it be implemented in accordance with the agreement?
Answer: It can be executed in accordance with the convention.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1145: The construction contract in the case involves the construction project 4.2.2 Billing principle, fee collection standard, item 4 stipulates that "the labor insurance fund is not charged and paid by the owner", 4.3.5 stipulates that "the labor insurance fund is paid by Party A on behalf of the government to Party B, and Party A will deduct it from Party B's settlement amount according to the corresponding amount returned to Party B. The government's return of Party B's labor insurance fund is responsible for issuing the return procedures for Party B. If Party B refuses or does not issue the return procedures within the time specified by Party A within the time limit specified by Party A, Party A has the right to deduct it from the project payment or warranty amount". Accordingly, it is not improper for the appraisal agency to fail to include the labor insurance fund in the total cost of the project in accordance with the above contract. Sijian Company claims that HSBC Xiang Company should pay it to it with insufficient basis and cannot be established.
37. If the contract is invalid and the contract stipulates that the contractor has the right to increase or decrease the project, can the agreement be implemented in accordance with reference?
Answer: You can refer to the execution.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1145: Regarding expected profit losses. Sijian Company appealed that HSBC Xiang Company unilaterally changed the scope of the project and should bear the expected profit loss of Sijian Company. This court believes that Article 7.4 of the construction contract involved in the case stipulates that "Party A has the right to increase or decrease relevant engineering projects within the scope of the general contracting of the project of this plot, and Party B must implement the relevant engineering instructions." Accordingly, HSBC Xiang Company has the right to reduce engineering projects, and the Sijian Company's claim is insufficient and cannot be established.
38. If the contract is invalid and the contract stipulates that fees will be collected according to the category of second-class engineering and second-class enterprises, can the agreement be implemented in accordance with reference?
Answer: You can refer to the execution.
Reference case: (2020) Supreme Court Civil Final Judgment No. 1145: Questions about the fee withdrawal standards. Sijian Company appealed that the projects involved in the case should be charged according to the first-level enterprise and type project. Article 11, Paragraph 1 of the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Construction Contract Disputes Cases (II)" stipulates that "if the parties concluded several construction contracts for the same construction project are invalid, but the construction project quality is qualified and one party requests to settle the construction project price in reference to the actual performance of the contract, the people's court shall support it." In this case, the two construction contracts involved in the case and the "Memorandum" should be deemed invalid due to violation of the mandatory provisions of the law. The parties all agree to settle the project funds in accordance with or refer to the contract signed on April 30, 2013. The contract stipulates that the fees will be withdrawn according to the category of second-class engineering second-class enterprises, so the Sijian Company's claim is insufficient and cannot be established.
39. The contract is invalid and it is agreed that if the final reduction of the settlement price exceeds 5%, the 10% of the excess shall be deducted from the settlement price as a fine. Can this agreement be implemented in accordance with reference?
Answer: You can refer to the execution.
Reference case: (2020) Supreme Court Civil Administration Ruling No. 3989: Regarding the question of whether the original judgment is correct to deduct 1005,232.3 yuan in fines of 10% of the 10% difference in the cost difference of inflated projects. The agreement in the "Construction Contract" involved in the case that the 10% excess of the completion settlement price reported by the construction worker should be deducted from the total settlement price as a fine as a fine, which belongs to the contract settlement clause. The original judgment shall deduct the above amount as a fine based on the performance of the contract between the two parties, which does not violate the law.
40. If the contract is invalid, but the contractor agrees to suspend or idle work, the contractor will not bear the losses of suspension or idle work. Can the agreement be implemented in accordance with reference?
Answer: Based on (2020) Supreme Court Civil Final Judgment No. 1145, it can be implemented with reference.
41. If the contract is invalid and the contract stipulates that the relevant construction content will not be measured separately, can the agreement be implemented in reference?
Answer: You can refer to the execution.
Reference case: (2020) Supreme Court Civil Final No. 912: According to the provisions of the "Technical Specifications" of the bidding document, Kawagoe Company has the obligation to ensure road traffic. The maintenance and maintenance of temporary roads will not be measured separately. The supervisor and owner's approval will not be priced. Kawagoe Company's claim to measure separately has no factual basis and cannot be established.
08 Claim and visa
42. Does the contractor lose his right if he fails to claim within the agreed period?
Answer: There are no clear provisions on this regard.
Reference case: (2020) Supreme Court Civil Final Judgment No. 348: According to Article 13 of the Construction Contract, "When the plan is delayed due to the following reasons and the impact on the annual project schedule cannot be eliminated through adjustments, the plan can be appropriately reduced after confirmation by Party A (Hami Hexiang Company) and the supervisor:
(3) There is a shortage of materials supplied by Party A due to Party A, resulting in the construction being unable to proceed normally" and Article 13.2 of "Party B (China Railway 10)" The Ninth Bureau) submitted a written report on the delayed plan within 14 days after the situation in Article 13.1. The plan can only be reduced after confirmation by Party A (Hami Hexiang Company) and the supervisor. "China Railway 19th Bureau failed to submit evidence confirmed by Hami Hexiang Company and the supervisor to prove its claim. Therefore, the China Railway 19th Bureau's fact that the first instance court found that Hami Hexiang Company failed to supply fire products on time and caused the suspension of work in China Railway 19th Bureau also quoted Article 13 of the "Construction Contract" to rule that China Railway 19th Bureau had lost power and was incorrect, and this court did not support it.
43. If the construction content added by the contractor itself, if the supervisor and the employer know but have not raised any objections, can it be deemed that the employer and the contractor have reached a change of the relevant construction content?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Final Judgment No. 483: Kaichuang Company appealed that the contract stipulated that the contractor shall not change the original project design, and that the construction drawings did not design fiber mesh cloth at the junction of different walls. The construction increased by Sanjian Company on its own should not be borne by Kaichuang Company. After investigation, it was found that the fiber mesh cloth objectively existed. Although the acceptance specifications did not require the construction project, the supervision unit and Kaichuang Company knew that Sanjian Company had constructed in this way but did not raise any objections. The first instance court found that the two parties reached an agreement on the construction method and there was no obvious improper handling, which was maintained by this court.
44. If the visa for the relevant construction content does not comply with the agreement, but the contractor has actually constructed, can the contractor claim part of the construction project payment?
Answer: Can claim.
Reference case: (2020) Supreme Court Civil Rebate No. 336: Regarding the question of whether the three expenses involved in the visa form that fails to perform the sealing procedures in the appraisal opinion should be included in the project payment, the two parties agreed in the "Construction Project Construction Contract" that for visas that directly lead to the increase or decrease of project prices, delayed construction periods, or advancement, except for the engineer visa sent by the contractor, the seal must be stamped by the contractor before it can take effect. Regarding the visa form in the "Uncertainment Part" of the appraisal opinion, which was not stamped as required by the contract, it was confirmed by the signature of Jin, an engineer sent by Jiaxin Company. When Jiaxin Company did not submit sufficient evidence to prove that the part of the project was constructed by other construction workers or the above-mentioned visa was a false visa, although Jiaxin Company did not stamp the seal, it was impossible to deny the fact that the part of the construction project was completed by the metallurgical company. Therefore, from a fair perspective, the part of the project and the corresponding 1383,694.68 yuan project price should be determined.
45. If the material price difference visa does not comply with the agreement, can the material price difference be included in the project price?
Answer: No.
Reference case: (2020) Supreme Court Civil Appointment No. 336: For the "uncertain part" of the appraisal opinion, the contractor must submit the "Material Quotation List" for bulk materials seven working days before the material procurement, and after approval by the contractor, the contractor and the supervision unit organize the market investigation to conduct a market investigation.Other sporadic materials that are determined shall be settled according to the unit price of "Guizhou Province Cost Information (Zunyi Region) Material Price" or the unit price negotiated by both parties. Since the market price of materials continues to change with the market conditions, the recognition of this part of the price difference should be strictly grasped in accordance with the contract agreement between the two parties. Since this part of the visa has not been confirmed by the contractor Jiaxin Company, this court will not support the two expenses of 1089,170.5 yuan and 125,624.72 yuan for the "uncertainty part" of the appraisal opinion.
09 Pay the amount by house
46. If the project payment is fulfilled after the expiration of the period of the project payment, if the contractor fails to provide all the transferee information to the contractor after the expiration of the reasonable period after the agreement is signed to the date of the closing of the proposed closing house to the day when the proposed closing house is sealed, can the contractor claim the liquidated damages for the overdue payment period?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 903: Article 60, Paragraph 2 of the Contract Law of the People's Republic of China stipulates: "The parties shall follow the principle of honesty and trustworthiness and fulfill their obligations such as notification, assistance, and confidentiality based on the nature, purpose and transaction habits of the contract." Xindongyang Company and Riyuexin Company signed two "Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-Pin-P On May 5, 2017, the eight houses involved in the two "Project Compensation Agreements" were filed for seizure by the creditors of Riyuexin Company, which made it difficult for Riyuexin Company to register the commercial housing sales contract for New Dongyang Company or its designated third party to handle the registration of the commercial housing sales contract or the transfer of house ownership for the 8 houses. According to the above-mentioned laws, Xindongyang Company shall provide Riyuexin Company with necessary information to the house transferee within a reasonable period after signing the agreement, and assist Riyuexin Company in handling the registration of commercial housing sales contracts or the transfer of house ownership. This court comprehensively considers the signing time of the two "Package Project Fund Agreement" and the actual capping time of the other 25 houses involved in the two agreements, and determines that the reasonable period expires on September 5, 2015, as appropriate. Xindongyang Company did not provide evidence to prove that it had provided all the transferee information of the 8 houses to Riyuexin Company from September 5, 2015 to May 5, 2017, and Riyuexin Company refused to register for the commercial housing sales contract or transfer of house ownership for its designated transferee. Therefore, the reason why the 8 houses failed to actually reach the cap during this period cannot be attributed to Riyuexin Company. Riyuexin Company shall not bear the overdue payment penalty for the proposed project price of the 8 houses. According to the calculation of the housing area and unit price stated in the two "Popular Project Payment Agreements", the total amount of the 8 houses to be covered is 3992,064 yuan [4 units (701, 1201, 1501, 3001) × 153.54 square meters × 3450 yuan + 2 units (1202, 1402) × 132.54 square meters × 3450 yuan + 2 units (1004, 1804) × 138.94 square meters × 3450 yuan], Riyuexin Company should not pay overdue payment liquidated damages of 1596,825.6 yuan (3992,064 yuan × 2% × 20 months) from September 5, 2015 to May 5, 2017 (total 20 months). Riyuexin Company’s appeal against this is established. The amount of liquidated damages determined by the first instance court is incorrect and this court corrects it. Riyuexin Company should pay a total of RMB 19926809.7 for progress payment penalty (21523635.3 yuan-1596825.6 yuan) to Xindongyang Company.
47. If the basic content of the agreement on using the house to pay for the payment is unclear, can it be determined that the agreement on using the house to pay for the payment?
Answer: No.
Reference case: (2019) Supreme Court Civil Administration Ruling No. 5468: Regarding whether the two parties have reached an agreement to pay off the debt with property. In this case, the "Supplementary Agreement on the Construction Contract of Changji Commercial Plaza Construction and Safety Engineering" signed by the two parties on September 18, 2011 stipulates: "After the completion of this project, after the settlement and review is completed, Party A (Monqi Real Estate Company) cannot pay Party B (He Xingxiang Construction Company) on time and in quantity within the time agreed in the contract, Party A may transfer the completed finished products (such as shopping malls and property-owned hotels) that can be put into use to the name of Party B at the equivalent price of Party B's owed. The transfer price will drop by 15% according to the local market conditions. Party A cooperates with Party B's marketing free of charge, and the property management will be managed by Party A."When the agreement was signed, the construction of the project involved had just begun. The two parties had not yet formed a creditor-debtor relationship, and the house had not been built. The basic contents that should be included in the debt repayment agreement were not determined. During the actual performance of the contract between the two parties, there was a situation where Monkey Real Estate Company used the completed commercial housing to compensate the project payment, but the two parties signed a commercial housing sales contract, and made a clear and clear agreement on the location, area and price of the house that compensated the project payment, and determined the specific amount of the project payment payment. Based on this, the second instance court determined that the "Supplementary Agreement on the Construction Contract of Changji Commercial Plaza Construction and Announcement Engineering Construction Project" involved in the case does not have the basic content of the debt repayment agreement. It cannot be considered that both parties reached an agreement to compensate the project debt compensation for the arrears of the project involved in the case. This determination is not improper and this court maintains it.
48. Is the housing payment agreement signed by the employer and the contractor valid before the expiration of the project payment period?
Answer: Regarding this issue, there are no clear provisions on the judicial interpretations of relevant laws and regulations. If some people believe that the public announcement has not been completed, they can refer to Article 24 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases"; if some people believe that the public announcement has been completed, they can refer to the "full" Minutes of the Civil and Commercial Trial Work Conference of the State Court (2019) Handled the relevant provisions of Article 71 of the "Assignment and Guarantee" (2019).
Reference Case: (2019) Supreme Court Civil Expo Ruling No. 6801: Although the "Execution Agreement" stipulates the matter of housing payment, and China Construction Second Bureau and Howard Johnson Company also signed a "Commercial Housing Sales Contract", from the "Execution Agreement" "In view of: …4. Party A (Howard Johnson Company) now promises to voluntarily Repay the debts owed to Party B (China Construction Second Bureau), and ensure the fulfillment of the promise by conditional "house payment" and court seizure" and other methods. After the agreement that Howard Johnson will repay part of the funds, China Construction Second Bureau will apply to the Quanzhou Intermediate People's Court to terminate the seizure of the property that is deducted by the corresponding value, and terminate the "Commercial Housing Sales Contract" of the property that is deducted by the corresponding amount of the debt. According to the act of Howard Johnson's signing the "Commercial Housing Sales Contract" is to raise the obligation to pay the project payment to China Construction Second Bureau. For guarantee, the "Commercial Housing Sales Contract" involved in the case is not a true expression of intention between the parties. Based on this, the second-instance judgment determined that the two parties agreed in the "Execution Agreement" that if Howard Johnson fails to repay the loan as scheduled, the debts owed to China Construction Second Bureau shall be invalid and not improper because it violates the relevant provisions of the "Property Law of the People's Republic of China" and the "Guarantee Law of the People's Republic of China".
49. After the expiration of the project payment period, is the housing payment agreement signed by the employer and the contractor valid?
Answer: Valid in principle.
Reference case: Summary of the judgment of the "Construction Contract Dispute between Tongzhou Construction Corporation and Inner Mongolia Xinghua Real Estate Co., Ltd. and Inner Mongolia Xinghua Real Estate Co., Ltd." issued by the 9th issue of the Supreme People's Court, 2017: The understanding of the effectiveness and performance of debt repayment should be based on respecting the autonomy of the parties. Generally speaking, unless the parties have clearly agreed, the parties shall not accept the debt-based debt-based debt-based agreement signed by the parties after the expiration of the debt repayment period, or obtain property rights such as ownership and use of the debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt-based debt- As long as the intentions of both parties are true and the content of the contract does not violate the mandatory provisions of laws and administrative regulations, the contract is valid.
50. After the expiration of the project payment period, if the employer and the contractor agree to offset the payment with the house and the agreement to change the debt, can the contractor continue to claim the project payment?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 197: Regarding the issue of using housing to offset the effectiveness of project payments.Judging from the agreements in the "Conciliation Agreement" and "Supplementary Agreement of Settlement", all parties have not agreed that the deposited house must be handled to Nantong Sanjian Company or its designated assignee in order to achieve the effect of offsetting the project payment; Judging from the contents of the "Ge Yunhuafu Residential Account Detailed List", "Ge Yunhuafu Shop Account Detailed List" submitted by Zhengzhou Zhuotai Company and Changge Zhuotai Company in the first instance, most of the residential houses have been issued, a small number have not obtained certificates, and all the shops have signed contracts and have not obtained certificates; Judging from the "Certificate" issued by Dong Mouxiang on September 25, 2017, he entrusted Zhengzhou Zhuotai Company and Changge Zhuotai Company to handle the houses, parking spaces and storage rooms that have been accrued to the project payment to a third party. All those who have not completed the online signing and real estate registration procedures have signed transfer agreements and transferred them to third parties for use. The above facts show that Zhengzhou Zhuotai Company and Changge Zhuotai Company have actually fulfilled the obligation to use houses to offset the project payment, and the purpose of using houses to offset the project payment has been achieved. If the transfer procedures have not been completed, the relevant rights holder shall claim the rights separately. Nantong Sanjian Company cannot deny the effectiveness of using houses to offset the project payment on this ground. Although most of the houses, parking spaces and storage rooms that cover the project payment were agreed by Dong Mouxiang, Zhengzhou Zhuotai Company and Changge Zhuotai Company, Nantong Sanjian Company has expressed understanding of Zhengzhou Zhuotai Company and Changge Zhuotai Company's payment of 345694099.52 yuan (including housing project payment) to Dong Mouxiang in the "Conciliation Agreement" and "Supplementary Agreement". It should be deemed that Nantong Sanjian Company has recognized the housing project payment handled by Dong Mouxiang. Therefore, Nantong Sanjian Company denies the validity of the project payment on the grounds that the house involved in the case did not go through the property registration procedures in accordance with the agreement to Nantong Sanjian Company or its designated assignee, and then appealed to Zhengzhou Zhuotai Company and Changge Zhuotai Company to still pay the corresponding project payment lack factual basis and this court does not support it.
"Construction Contract Dispute between Tongzhou Construction Corporation and Inner Mongolia Xinghua Real Estate Co., Ltd. and Inner Mongolia Xinghua Real Estate Co., Ltd." issued by the 9th issue of the Supreme People's Court in 2017: See the previous article for details of the summary of the judgment.
51. After the expiration of the project payment period, if the employer and the contractor agree to pay the payment with the house. If the change of the debt has not been agreed, can the contractor continue to claim the project payment?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Administration Ruling No. 2381: Regarding the question of whether the project funds for the mortgage of the house involved in the disputed house should be included in Ruitaihua Company’s paid project funds. The disputed house has not been transferred, and the agreement reached by both parties on the house to settle the debt by the house has not been actually implemented. Based on the original construction contract relationship, the housing company claimed to Ruitaihua Company that the 11634,740 yuan owed project payment involved in the disputed house was based on the legal basis. Ruitaihua Company's reason for claiming that this part of the funds should be included in the paid project payment is not valid, and this court does not support it.
"Construction Contract Dispute between Tongzhou Construction Corporation and Inner Mongolia Xinghua Real Estate Co., Ltd. and Inner Mongolia Xinghua Real Estate Co., Ltd." issued by the 9th issue of the Supreme People's Court in 2017: See the previous article for the summary of the referendum.
10 Quality deposit
52. Should the contractor return the quality deposit when the defect liability expires?
Answer: There are no clear provisions on this regard.
Reference case: (2020) Supreme Court Civil Final Judgment No. 483: Regarding quality deposit. Kaichuang Company advocated a 4% deduction of quality deposit from the project cost, but the first instance court did not support it, and Kaichuang Company filed an appeal. This court believes that Article 8, Paragraph 1, Paragraph 1, Article 2 of the Judicial Interpretation of Construction Engineering stipulates that if the party agrees to return the project quality deposit after the project quality deposit is expired and the contractor requests the contractor to return the project quality deposit, the people's court shall support it. Article 2, Paragraph 3 of the "Regulations on the Management of Quality Margin of Construction Projects" stipulates that the liability period for defects is generally 1 year, with a maximum of no more than 2 years, and shall be agreed in the contract by the contractor and the contractor. In this case, the two parties agreed on the quality warranty period of each project, and agreed that the quality deposit was 4% of the contract cost. It was reserved at the completion and settlement of the project. After the warranty period of the civil engineering, installation and waterproofing projects expired, it will be refunded to the contractor without interest within 14 days after the expiration of the warranty period according to the cost ratio.Other warranty projects shall be responsible for the contractor until the warranty period expires, and the reserved quality deposit for the underground garage project shall be recovered within 30 days after the warranty period expires. The responsibility period for quality defects shall be calculated from this date. In accordance with the provisions of the "Regulations on the Management of Quality Margins of Construction Projects" and the agreement between the two parties, as of December 27, 2019, all projects in this case have passed the warranty period, and the quality deposit withheld should be refunded and the warranty interest should be paid. The first instance of the handling of the quality deposit was correct. Kaichuang Company's appeal request lacks factual and legal basis, and this court does not support it.
(2020) Supreme Court Civil Final Judgment No. 191: Regarding the issue of warranty, the cost of the project involved in the case is 151,970,358.04 yuan. According to the agreement between the two parties that "Party A reserves 5% of the total cost of the project settlement of Party B, as the project quality warranty, the warranty period is 5 years", and the agreement that "the warranty does not pay interest, and pay after deducting the warranty fees that have occurred, 3% will be returned after the warranty period expires, 1% will be returned after the warranty period expires, and 1% will be returned after the warranty period expires, and 5% will be returned after the warranty period expires. Other warranty responsibilities and related matters are implemented in accordance with the provisions of the contract text", the warranty shall be 7598,517.9 yuan and shall be returned as agreed. Because Wanjing Company claimed that all Nantong Second Construction was withdrawn at the end of 2014, the shopping mall part of the project began to open on November 28, 2015, and the office building part began to be used in May 2015, the first instance court decided that the project involved in the case had been delivered to Wanjing Company for use by Nantong Second Construction on January 1, 2015, and the warranty period should be calculated from January 1, 2015. Therefore, Wanjing Company can currently retain a 1% warranty of 1519,703.58 yuan.
53. The warranty period starts cannot be determined. Can the contractor claim a quality deposit?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 375: Regarding the issue of project funds recognition. According to the "Construction Project Construction Contract", within 20 working days of settlement review and finalization, Jin Hongyu Company shall pay 98% of the project payment to Luzhou Qijian, and the remaining 2% shall be used as a quality warranty. After the warranty period expires for two years, Jin Hongyu Company shall pay 80% of the project quality warranty; within 20 working days after the warranty period expires for five years, Jin Hongyu Company shall pay the remaining quality warranty. The project cost determined by the "Construction Project Settlement Statement" on January 10, 2018 was 83008,020 yuan. The amount of the project requested by Luzhou Qijian includes the refund of the quality warranty, but because the project involved in the case has not been completed and accepted, and the owner's use time is unclear, the warranty period starts cannot be determined, and the quality warranty should be temporarily deducted according to law. Therefore, Jin Hongyu Company should pay the project price of Luzhou Qijian in this case to be 83008020×98%=81347,859.6 yuan.
11 Other
54. If the contractor pays the project payment to a non-specified account and the payee uses the money for the project involved in the case, can the money paid by the contractor be deemed to be paid as the project payment?
Answer: Yes.
(2020) Supreme Court Civil Final Judgment No. 483: Should the 15,000,000 yuan collected by Yu Moude be deemed to have been paid? Sanjian Company appealed that Sanjian Company had never entrusted Yu Moude to borrow or receive project funds from Kaichuang Company. The contract stipulated a special account for the project funds, and the funds were used for the special purpose. The 15,000,000 yuan collected by Yu Moude had nothing to do with Sanjian Company. After investigation, Yu Moude collected 15,000,000 yuan from Kaichuang Company, issued 7 IOUs and 1 receipt, all of which were stamped with the seal of the Sanjian Company's project department. The receipt states: "I have received 500,000 yuan in total for the project funds for the Chen Yang New Territories project of Kaichuang Company today, and this money is transferred to Yu Moude CCB card 6217×××." Kaichuang Company attached the "Monthly Project Payment and Distribution Approval Form" after the IOU and receipt, and notes: "According to the requirements and suggestions of President Yu (Yu Moude) whether this payment can be paid directly to the individual, so as to reduce the deduction of management fees and other expenses of Sanjian Company in order to pay full amount to workers and prevent workers from causing trouble." Yu Moude was questioned by the Sixth Brigade of the Economic Investigation Detachment of Xi'an Public Security Bureau on August 28 and September 27, 2018, when he was asked by the Sixth Brigade of the Economic Investigation Detachment of Xi'an Public Security Bureau, he stated that Sanjian Company knew that the 1,500,000 yuan was used to pay the wages of migrant workers, pay suppliers and pay project management staff.This court believes that although the contract between the two parties stipulates a special account, the above facts show that the 15,000,000 yuan received by Yu Moude has been actually used for the project involved in the case. The first-instance judgment included the funds paid by Kaichuang Company, and there was no obvious improperness and this court maintained it.
55. If the contractor signs the fine issued by the contractor but does not explicitly confirm that it is acceptable, can the fine be deemed to be paid?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 871: Times Haoting Company and Supervision Company fined Du Ban Company 203,500 yuan. Although the fine form is signed by the construction staff of Duban Company, it does not express the intention of confirming the amount of the fine, so it cannot be determined that Duban Company agrees to the fine amount of Times Haoting Company. The RMB 203,500 cannot be included in the payment.
56. If the contractor illegally subcontracts and the contractor claims the project price to the contractor in addition to the project price settled by the subcontractor and the contractor based on the construction project construction contract, can it be supported?
Answer: Except for the increase in construction contract based on the construction project, it will not be supported.
Reference case: (2020) Supreme Court Civil Final Judgment No. 781: Should the earthwork part be added to 3376,0009.72 yuan. This court believes that the above amount should not be increased by part of the earthwork project funds. The reasons are: First, as mentioned above, because Fujian Zhongsen Company illegally subcontracts the projects involved in the case, it should not obtain the improper benefits arising from illegal subcontracting. Fujian Zhongsen Company recognized the use of the earthwork quantity stated in the "Xu Dong's Earthwork and Machinery Settlement Form for Rebuilding Buildings" as the earthwork quantity involved in the case, and recognized that the cost of earthwork engineering 215,67,496.85 yuan recorded in the table was settled based on the project volume according to the fixed unit price agreed between it and Huale Industry and Trade Company. Because the settlement price of earthwork between Fujian Zhongsen Company and Huale Industrial and Trade Company was 215,67,496.85 yuan, the first-instance judgment of this case will increase the 215,67,496.85 yuan. According to the agreement of the "General Contract for Engineering Contract" between Fujian Zhongsen Company and Wuhan Zhongsen Hua Company, it will be used as the settlement price of earthwork between Fujian Zhongsen Company and Wuhan Zhongsen Hua Company, and it has fully protected the interests of Fujian Zhongsen Company. Fujian Zhongsen Company's appeal request to increase the additional 3376,009.72 yuan on this basis is an improper interest that exceeds the actual cost of earthwork projects and should not be supported and protected.
57. Are items that are not included in the bill of quantities but have been included in the construction design drawings fall into missed items?
Answer: It does not belong.
Reference case: (2020) Supreme Court Civil Final Judgment No. 912: The construction design drawing is designed with a bridge to fill a 30cm thick sand and gravel permeable layer. The design drawing has been provided to the bidder during the bidding. At this time, the contract quantity list is not included. It can also be considered that the bidder has considered the quotation according to the bidding documents and contract agreements. If the owner does not agree to make the change, Kawagoe Company's request for direct measurement lacks basis, and its appeal reason cannot be established.
58. The bill of quantities description stipulates that if the subitem is not listed, the cost shall be deemed to be allocated in the unit price or total price of the relevant subitem of the contract project. Are the relevant sub-items missing?
Answer: It does not belong.
Reference case: (2020) Supreme Court Civil Final Judgment No. 912: Appraisal Opinions According to Article 2.4 of the Bill of Quantity Description of the Construction Contract Document, if the work that is not listed and does not be measured after the subitem is listed, the expenses shall be deemed to have been allocated to the unit price or total price of the relevant sub-item of the contract project. It is determined that this item will not be billed separately. The first instance of the appraisal opinion is accepted and there is no inappropriateness. Kawagoe Company did not provide evidence that the Yangtze River Design Company and the Eighth Bureau of Water Conservancy and Hydropower promised to measure the item separately, and its appeal reason was not valid.
59. If the technical data archiving fee is not agreed to be borne by the contractor, can the contractor not bear it?
Answer: Yes.
Reference case: (2020) Supreme Court Civil Final Judgment No. 483: Regarding technical data archiving fees. Kaichuang Company claimed that the project cost appraisal should be deducted from the technical data archiving costs. The first instance was not supported, and Kaichuang Company appealed. This court believes that the contract does not stipulate the filing fee, and Kaichuang Company’s claim lacks a contract basis, and the first instance is handled correctly, and this court will also uphold it.
60. The contractor has delivered the project to the employer for use. The employer refuses to pay the project payment on the grounds that the contractor has not delivered the completion information. Is this claim valid?
Answer: Not valid.
Reference case: (2019) Supreme Court Civil Final Judgment No. 1622: Construction projects are usually carried out in accordance with the process of construction, submitting completion acceptance report, passing completion acceptance, submitting completion settlement materials, completing completion settlement, and project delivery and use. However, the project involved in the case was delivered and used in advance on September 15, 2012, that is, Dongyang Sanjian Company has fulfilled the main obligations stipulated in the construction contract. Qinghai Taiyang Company defended its main obligations to pay the project funds with the secondary obligations of Dongyang Sanjian Company to deliver the completion materials, which is inconsistent with the principle of fairness of equal rights and obligations and is not reasonable.
61. Can the contractor refuse to pay the project payment on the grounds that the contractor has not issued an invoice?
Answer: No.
Reference case: (2020) Supreme Court Civil Final Judgment No. 158: Issuing a project payment invoice is an accompanying obligation to fulfill the contract in this case. Compared with the main obligations of Century Jia and the Company to pay the project payment, the two do not have a reciprocal relationship, and issuing a project payment invoice is not a prerequisite for paying the project payment agreed by both parties. Therefore, the first instance court found that Century Jiahe's defense of China Railway Construction Engineering Group's failure to issue in time was not valid and there was no improper reason.
Article 13 of the Jiangsu Higher People's Court's Answers to Several Issues Concerning the Trial of Construction Contract Disputes Cases (June 26, 2018)" stipulates that if the contractor refuses to pay the project payment on the grounds that the contractor has not issued an invoice, it will not be supported, unless otherwise explicitly agreed by the parties.
62. If the back-to-back clause is valid and one party fails to fulfill the relevant obligations, can it be considered that the back-to-back conditions have been achieved?
Answer: It can be regarded as accomplished.
Reference case: (2020) Supreme Court Civil Final Judgment No. 106: The "Subcontract" and supplementary agreement signed by China Construction First Bureau and Qiyue Company are the true intentions of both parties. The content does not violate the mandatory provisions of the law and is legal and valid. (1) Regarding whether the project funds in this case have met the payment conditions, the disputes on this issue are mainly in three aspects: one is whether the project involved in the case has been completed, the second is whether the audit conditions attached to the payment of the project funds claimed by China Construction First Bureau were achieved, and the third is whether the "back-to-back" conditions attached to the payment of the project funds claimed by China Construction First Bureau were achieved. Regarding whether the "back-to-back" payment terms have been achieved, China Construction First Bureau proposed that the two parties agreed that if the project payment is not paid by Dadong Construction, China Construction First Bureau will not be subject to payment obligations. However, the exemption of China Construction First Bureau should be based on its normal performance of obligations such as assisting in acceptance, assisting in settlement, and assisting in withdrawal of payments. As the person responsible for collecting funds for Dadong Construction, China Construction First Bureau did not provide effective evidence to prove that it had actively fulfilled the above obligations after stamping and confirming that the project involved in the case was completed and before the litigation of this case, and urged Dadong Construction to accept, audit, settlement, and collection of payments. On the contrary, the testimony of Fang, a staff member of China Construction First Bureau, confirmed that China Construction First Bureau was subjectively inadvertently slapped in performing its duties, rejected Qiyue Company's request, and never actively claimed rights from Dadong Construction. This situation belongs to the situation where the parties improperly prevented the conditions from being fulfilled for their own interests in the contract stipulated in Article 45, paragraph 2 of the Contract Law of the People's Republic of China. It is deemed that the conditions have been fulfilled. Therefore, the arguments of China Construction First Bureau on the failure of the "back-to-back" conditions and that China Construction First Bureau does not have the obligation to pay are insufficient. In addition, China Construction First Bureau claimed that Zhang Qiyue Company did not pay the workers' wages in full, but it failed to provide evidence; it claimed that Zhang Qiyue Company failed to fulfill its promise not to have debt disputes with non-party members, but the disputes have been resolved. Therefore, none of the above claims of China Construction First Bureau are valid. The first instance court found that the project funds involved in the case had met the payment conditions and there was no improperness, and this court upheld it.
63. "This contract is only used as a filing function and is not used as the basis for construction settlement" Does it affect the use of the filing contract as the settlement basis?
Answer: It does not affect.
Reference case: (2021) Supreme Court Minsheng Rule No. 66: In this case, there is no sufficient evidence to prove that Donghui Company had collusion, or that the company had illegal acts that resulted in the bid invitation process that resulted in the bid invalidity. Therefore, the second instance court held that the 5.10 contract was not invalid due to violation of mandatory laws. The two parties filed the contract. The 5.10 contract was a valid contract, and the reason was sufficient, and this court confirmed it. The 5.8 contract is inconsistent with the registered winning contract. Therefore, the 5.8 contract is invalid due to violation of Article 46 of the Bidding Law of the People's Republic of China on "the tenderer and the winning bidder shall enter into a written contract in accordance with the bidding documents and the winning bidder's bid documents within 30 days from the date of issuance of the bid notice. The tenderer and the winning bidder shall not enter into other agreements that deviate from the substantive content of the contract." Article 21 of the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Construction Engineering Construction Contract Disputes Cases" (Fashi [2004] No. 14) stipulates: "If the construction contract signed by the parties separately for the same construction project is inconsistent with the substantive content of the registered winning contract, the registered winning contract shall be used as the basis for the settlement of the project price." The premise for the application of this provision is that the registered winning contract is a valid contract; before the acceptance analysis, the second instance court uses the legal and valid 5.10 contract as the basis for settlement of the project involved in the case, and the facts and laws are sufficient, and this court recognizes it. The content stated at the end of the 5.10 contract that "this contract is only used as a filing function and is not used as the basis for construction settlement" clearly violates the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Construction Contract Disputes Cases" (Fashi [2004] No. 14) Article 21 regarding the maintenance of the legal effect of the winning contract and the purpose of regulating the construction market. Therefore, the second instance court believes that the notes on the 5.10 contract do not affect the contract as the settlement basis for the project involved in the case, and that the factual and legal basis are sufficient, and this court recognizes it. The content of Zhonghui Company’s notes on the 5.10 contract can exclude the contract as the basis for settlement, and the claim that the 5.8 contract actually performed as the basis for settlement should be used as the basis for settlement. Without factual and legal basis, this court will not support it.
64. If the progress payment is not agreed to be paid on the premise of the project quality, and if the project quality is not up to standard, should the contractor pay the progress payment?
Answer: Payment should be paid.
Reference case: (2020) Supreme Court Civil Final Judgment No. 337: According to the "Construction Project Construction Contract", the payment of the first phase progress payment does not set other prerequisites except for the main body cap. Fujian Jiuding’s obligation to rectify project quality issues is that after Jia Hongyuhe pays the progress payment of the first phase of the project, it will not affect the payment of the progress payment of the first phase of the project.
65. Is it a new litigation request for the contractor to reduce the payment of the project price based on the project quality defects?
Answer: This issue is controversial in judicial practice.
Reference case: (2020) Supreme Court Civil Final Judgment No. 766: The request of Yuansheng Company to reduce or refuse to pay the project price based on the project quality defect is an independent lawsuit filed by Zhongsheng Company and Zhongsheng Company Yangxin Branch requesting payment of the project price.
Tips: Article 8, item (1) of the "Guidelines for the Trial of Construction Contract Cases of Jiangsu Higher People's Court Construction Engineering (2010)" is considered not to be a new litigation request and falls within the scope of the contractor's exercise of the right of defense.
66. Does drought belong to force majeure?
Answer: It does not belong.
(2020) Supreme People's Court Minsheng No. 6115: In this case, Bada Garden Company and Chengzhang Company, as enterprises with professional greening engineering construction qualifications and technology, should have corresponding foresight and response capabilities for possible drought weather during seedling planting and their impact on seedling planting. At the same time, according to the "Construction Site Visa Form", "Close and Review Report" and "Report" involved in the case, Kunming University of Science and Technology actively assisted in seeking water sources after the drought weather and proposed self-rescue plans such as digging holes at the bottom of the Laoyu River, increasing water intake pumps, and water pumps, and bears relevant construction costs. There is no fault for the losses caused by the death of seedlings.In addition, the "Report" involved in the case was produced by Bada Garden Company and Chengzhang Company. The cause of the death of the seedlings in the case was also unilaterally stated by Bada Garden Company. There is no evidence to prove that drought is the only cause of the death of the seedlings in the case. Wu Mouzhong advocated that drought was force majeure, and Kunming University of Technology should bear 7.55 million yuan in deaths in seedlings. It cannot be established without factual and legal basis.
Through the above analysis, we can see that the relevant issues in project price disputes are relatively complex, and the contractor considers many relevant factors when claiming project price, including similar cases heard by the Supreme People's Court, judicial documents issued by local courts, whether the actual construction worker is a natural person, whether the agreement is not to be calculated, whether the construction project construction contract is invalid, whether the labor fee is not adjusted, whether the management fee (subcontracting profit) has agreed on the pricing method, whether the agreed pricing method is clear, and whether it is an unfinished project. Therefore, the author suggests that construction units and construction units attach great importance to project price disputes in construction project construction contract disputes, refine relevant contract regulations, and try to avoid such disputes.
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Source: Haitan Tege, Civil and Commercial Law Think Tank, Supreme People's Court Judicial Case Research Institute
Editor: Shi Hui
Review: Fu Dehui
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