How can I still get the project payment from more than ten years ago?
Research on construction contract dispute cases will tell you the answer!
Construction project construction contracts are relatively complicated due to long cycles, large investments, and most of them are hidden projects and strong professionalism. Once a dispute arises, the main construction party often refuses to pay the project payment based on the reasons of the main body, quality, construction period, etc., which leads to the huge project payment being owed for many years due to the construction party's shirk responsibility and cannot collect the payment.
After multiple collections failed, when the lawsuit was filed with the court, the construction party refused to pay the case, which resulted in the construction party losing the right to win, which ultimately led to the inability to recover the debt. In response to this, the big data report will tell you how to collect the final payment of the project that has been accumulated over the years, how to dominate the construction project contract disputes litigation, win the lawsuit, and recover the debts owed over the years.
1. Data analysis of litigation limitation disputes related to construction contracts
Big data report data source
Case source: Case library
Case origin: Construction project construction contract disputes
Document type: Judgment
Court believes that including: Litigation statute of limitations
Number of cases: 12980
Case annual case volume trend
This search obtained construction project construction contract disputes Before January 30, 2019, a total of 12,980 judicial documents were found. From the distribution of the year above, it can be seen that the change in the number of cases of construction project construction contract disputes under the current conditions is a trend of increasing year by year (the number of cases in 2018 has not fully disclosed all judicial documents). The reason for this trend is related to the prosperity of the construction industry market and real estate since 2012.
Geographical Distribution of Disputes
As of January 30, 2019, from the perspective of regional distribution, the current cases of construction contract disputes in Jiangsu Province (1,194 cases), Shandong Province (1,086 cases), and Guangdong Province (976 cases), accounting for 9%, 8%, and 7%, respectively. Among them, Jiangsu Province has the largest number of cases, reaching 1,194.
Industry distribution
As of January 30, 2019, the current industry distribution of construction project construction contract disputes is mainly concentrated in the construction industry (7,858 items), real estate industry (495 items), manufacturing industry (1,882 items), wholesale and retail industry (1,184 items), leasing and business services industry (622 items). The proportions are construction industry (55.87%), real estate industry (17.77%), and manufacturing industry (13.4%).
Program Classification
As of January 30, 2019, the current distribution of trial procedures under construction contract disputes. There were 7,079 first-instance cases (54.54%), 5,728 second-instance cases (44.13%), and 149 retrial cases (1.15%).
can be calculated from this that the first instance appeal rate is about 81%. It can be seen that most parties in construction engineering construction contract cases choose to appeal after losing the case.
Referee result
•First instance referee result
Through visual analysis of the first instance referee result, we can see that under the current conditions, there are 5,265 cases supported in all/partial terms, accounting for 80%; 1,021 cases rejected, accounting for 16%; and 267 cases supported in the others, accounting for 4%. From this point of view, it is still the plaintiff who wins the case for most construction contract disputes, and the proportion of rejection of all is not high.
•Secondary judgment results
Through the visual analysis of the results of the second-instance judgment, we can see that under the current conditions, there are 3,966 cases that maintain the original judgment, accounting for 74%; there are 1,323 cases that change judgments, accounting for 25%; there are 59 cases that have the other cases, accounting for 1%. The second-instance retrial rate exceeded one-quarter, and the proportion of cases of retrial was higher than that of other cases.
visualization of the target amount
Through the visual analysis of the target amount, we can see that the number of cases with the target amount is below 500,000 yuan, with 6,677 cases, 2,695 cases with 1 million to 5 million yuan, 1,785 cases with 500,000 to 1 million yuan, 572 cases with 5 million to 10 million yuan, and 308 cases with 10 million to 20 million yuan. The amount of the construction contract dispute between construction projects is mainly between 500,000 yuan and 5 million yuan, and the amount of the subject matter is relatively large.
trial period visualization
Through visual analysis of the trial period, we can see that the trial time under the current conditions is more in the range of 31-90 days, with an average time of 161 days. It reflects that the construction project construction contract has a long cycle and is relatively complex in the case, and has the characteristics of a longer trial limit than the trial limit of a general case.
2. Analysis of the statute of limitations for construction project contract disputes
In the process of queuing project funds, the construction party refused to pay the project owed on the grounds that the money was owed for many years and the case had passed the statute of limitations. To this end, we will give a detailed introduction to the calculation period of the statute of limitations:
1. If the payment period is agreed in the contract, the limitation period shall be calculated from the time when the rights are known or should have been known to be infringed
Article 137 of the General Principles of Civil Law stipulates that "the limitation period shall be calculated from the time when the rights are known or should have been known to be infringed." The construction contract shall determine the payment time based on the contents of the contract. When the payment period stipulated in the contract expires, the debtor fails to fulfill his payment obligations, and the statute of limitations shall begin to be calculated at this time.
2. If the payment period is not agreed in the contract, the limitation period shall be calculated from the date on which the debtor clearly stated that he would fail to perform his obligations
The limitation period shall be calculated from the date on which the creditor requests the debtor to perform his obligations expire, but if the debtor clearly stated that he would fail to perform his obligations when the creditor claimed his rights for the first time, the limitation period shall be calculated from the date on which the debtor clearly stated that he would fail to perform his obligations. If the payment period is not agreed in the construction construction contract, the statute of limitations shall be calculated from the date when the debtor expresses no repayment.
3. If the project general contracting contract stipulates that payment is paid in installments according to advance payment, progress payment, completion payment and warranty payment, then the statute of limitations for each period of project payment is the final payment after the expiration of
If the payments paid in several stages are the same contract payment, it can be calculated from the expiration of the last payment. If the nature of the payments paid at each stage is different, such as design fees, equipment fees, project fees, etc., each should be divided into different time limits.
In addition, from practice, if the project payment contract has not yet reached the settlement conditions stipulated in the contract, even if the previous phased prepayment has exceeded the statute of limitations, the court often fails to determine the statute of limitations as deemed that it has not exceeded the statute of limitations.
4. If the parties have not agreed on the payment time or the agreement is unclear, the following time shall be deemed as the payment time
According to Article 18 of the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Construction Contract Disputes Cases", "Interest is paid from the date of the project payable. If the parties have not agreed on the payment time or the agreement is unclear, the following time shall be deemed as the payment time:
(I) If the construction project has been actually delivered, the date of delivery;
(III) If the construction project has not been delivered, the date of submission of the completion settlement documents;
(I) If the construction project has not been delivered and the project price has not been settled, the date of the parties' lawsuit."
5. If the construction contract is declared invalid, the limitation period shall be calculated from the time the contract is confirmed to be invalid
The invalidity of the contract is invalid from the beginning. After the contract is confirmed to be invalid, the parties' request for returning property and compensating for losses shall apply. The basis for the claim after the contract is invalid is not based on the contract, so it cannot be calculated from the date of expiration of the performance period of the original contract. The parties' right to claim for return of property and compensation for losses arising from the invalidity of the contract is the legal consequences arising from the invalidity of the contract. Only after the contract is confirmed to be invalid, the right to claim for unjust enrichment caused by the invalidity of the contract is established.
6. Under the premise of no other payment conditions, if the amount of the claim and the debt is unknown, the statute of limitations has not started to be calculated
project funds have not been settled, and there is no clear amount of the claim and the debt relationship has not been finalized, so the statute of limitations has not yet begun to be calculated.
7. The debtor partially fulfills the debts that have expired the statute of limitations, and the rest cannot be recalculated. Although the Supreme People's Court confirms in the retrial case of the construction engineering design contract dispute between Chengdu Panda Wanguo Mall Co., Ltd. and Hong Kong DCA Qi Wucheng Architectural Firm [(2017) Supreme People's Court Civil Resignation No. 63] that after the statute of limitations expires, the creditor's claims are converted into natural debts. , the debtor partially reimburses the claims with the expiration of the statute of limitations, and cannot restore or resurrect the remaining statute of limitations. However, courts at all levels also have different views on this issue. Some courts believe that the debtor partially repays the debts whose statute of limitations expire, resulting in the legal consequences of interrupting in .
8. If the limitation period is exceeded, the creditor and the debtor have reached a new repayment agreement. The limitation period is calculated again. The repayment agreement reached by the parties on the original debt is a new creditor-rights and debt relationship. The repayment agreement should be protected by law, that is, the purpose of rescuing the limitation period and recalculating the limitation period.
9. If the enterprise's inquiry letter has the intention of collecting debts, it can constitute an interruption of the statute of limitations
If the creditor sends a letter of inquiry letter to the debtor within the statute of limitations period, the debtor confirms the amount of the debt in the statute of limitations and stamps it with the official seal, it can usually be used as the basis for interrupting the statute of limitations.
If the statute of limitations has been exceeded, the creditor will send a letter of inquiry to the debtor. If there is an intention to collect the debt in the content of the statute of inquiry, it can be regarded as a letter of collection. If the debtor signs and seals this type of inquiry to confirm, it will be regarded as a reconfirmation of the original debt, and the statute of limitations can be recalculated.
10. The warranty fee is special and should be treated separately and the statute of limitations for litigation is calculated separately.
There has always been controversy in practice about the nature of the warranty. One view believes that it should belong to part of the project payment. Based on this view, it can be believed that all project debts will be calculated from the expiration of the warranty; but another view believes that the nature of the warranty and the project payment are not exactly the same, and have their own characteristics. The warranty should be treated separately and the limitation period for the litigation is calculated separately. Most of the views in practice are to calculate the statute of limitations separately from the warranty amount and the project payment.
3. Distribution of burden of proof for interruption of litigation of construction contracts
General Principles of Civil Law and the Supreme People's Court's "Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial)" mainly stipulates the length of the limitation period, calculation and suspension, interruption and extension of the litigation period from the perspective of substantive law. It does not clearly stipulate which party should bear the burden of proof under various circumstances. Many courts' general practice in handling is that if the defendant filed a plaintiff's lawsuit that has exceeded the legal protection period, the plaintiff will require the plaintiff to provide evidence to prove the fact that it has not exceeded the legal protection period, otherwise it will be ruled to lose the case.
But some courts believe that the statute of limitations exceeding the statute of limitations shall be submitted by the defense. For example, the judgment No. (2016) Jing 0118 Minchu No. 7689 issued by the People's Court of Miyun District, Beijing on December 8, 2016, this court believes that it wrote: "Tishizhuang Village Committee does not recognize the construction facts of Li Lianzhong and the opinion that Li Lianzhong's lawsuit has exceeded the statute of limitations. Because it fails to provide corresponding evidence, this court will not accept it."
In a lawsuit, if the defendant claims the statute of limitations defense, he must prove the facts on which the statute of limitations are based, that is, the facts of the beginning and expiration of the statute of limitations period must be proved, including the claim that the reason for the statute of limitations is terminated. When a dispute arises between the two parties over when the limitation period begins and whether it expires, and it is difficult for the court to accurately confirm the determination, the party (i.e., the defendant) who filed the limitation period shall bear the adverse legal consequences.
4. How to interrupt the statute of limitations
To avoid the case having passed the statute of limitations so that in the future litigation process, you can win the lawsuit and gain the initiative in the case, the following methods can be adopted to achieve the purpose of interrupting the statute of limitations:
1. Directly send a written statute of limitations to the debtor, and the other party signs and stamps the statute of limitations to prove that it has been received.
2. Call for payment, but keep the recording evidence.
3. Postal express (EMS) delivery, keep the mailing form and the postal company's express delivery receipt, and prove that the letter has been submitted.
4. Email delivery is also a legally recognized method, but there must be evidence to prove the ownership relationship between the email address and the recipient.
5. If you find a witness to testify, you can make notarization if necessary.
6. Certificate of partial repayment of the other party within the statute of limitations. (But it is necessary to prove that the debt is repayed)
7. Prosecution or arbitration. (The withdrawal of the lawsuit will not affect the statute of limitations and validity of interruption of the statute of limitations)
8. During the statute of limitations, an agreement on the performance of the debt is reached, such as a new repayment agreement, a guarantee agreement, etc., or the debtor is invited to confirm the debt, the debtor requests to postpone the performance, and the debtor submits a debt repayment plan, etc.
9. During the limitation period of the lawsuit, the company's letter of inquiry is signed and sealed by both parties.
5. Remedy methods that exceed the statute of limitations
If the case has passed the statute of limitations, as the construction party, the following methods can be adopted to achieve the purpose of interrupting the statute of limitations and recalculating the statute of limitations:
1. The debtor reconfirms the debt. According to the judicial interpretation of the Supreme Court, if the debtor reconfirms the debt, the debt after reconfirmation is still protected by law. The specific measures are: issue a letter of refund (or a letter of inquiry with a statement of intention to refund), which will be signed or sealed by the debtor.
2. Although the statute of limitations has exceeded the "new debt"
, the creditor and the debtor have reached a new repayment agreement on the debt (such as re-arrangement of payment term, debt performance method, discount payment, etc.), and reach a new repayment agreement, that is, the new debt is determined through a new contract and the statute of limitations is re-calculated.
(Bond Full Network)
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