Article 10 the extension of the construction period agreed by the parties shall be confirmed by the employer or the supervisor’s visa
.
Although the contractor has not obtained the confirmation of the extension of the construction period, it can prove that he has applied for the extension of the construction period from the employer or the supervisor within the time limit agreed in the contract and the reasons for the extension are in line with the contract
.
If the contractor claims the extension of the construction period on this ground, the people’s court shall support it
.
If the parties agree that the Contractor fails to apply for extension of the construction period within the agreed time limit, it shall be deemed that the construction period is not extended, and it shall be dealt with in accordance with the agreement, except that the employer agrees to extend the construction period after the agreed time limit or the contractor proposes a reasonable defense
.
1、 The content of the original article is the original article 6 of the judicial interpretation of construction project (2)
.
2
.
The article has not changed
.
3
.
Lawyer’s interpretation
.
1
.
Project visa refers to the signing certificate formed by the contractor and the employer according to the contract in the process of the performance of the construction contract for the compensation of expenses other than the contract price, the extension of the construction period and the compensation for losses caused by various reasons
.
2
.
The claim period is different from the limitation of action and exclusion period
.
First of all, from the analysis of the purpose of establishing the claim period, in the construction contract disputes, because the contract parties are lazy to claim for a long time, it is easy to lead to the loss of evidence, which makes it difficult to find out the true situation of the claim event, and increases the time and money costs of the contract parties
.
The introduction of claim system can fix the facts and form evidence through written documents such as notice of claim intention and claim report, so as to provide basis for future dispute settlement
.
Secondly, the time limit of claim is stipulated by the parties, and the limitation of action and the period of exclusion are stipulated by law
.
The elimination of substantive rights should be stipulated by the mandatory law, which is agreed by the parties and sufficient to produce the effect
.
Thirdly, when the limitation of action expires, the party loses the right to win the lawsuit, and when the period of exclusion expires, the party’s substantive rights are extinguished
.
At the end of the claim period, the parties may not lose the right to win and substantive rights
.
3
.
The first paragraph of this article conflicts with the engineering practice, which increases the burden of proof of the contractor
.
According to Article 19.2 (2) of the general conditions of contract in the construction contract of construction project (model text) (gf-2017-0201), if the employer fails to reply after receiving the Contractor’s claim, it shall be deemed that the Contractor’s claim is approved
.
According to paragraph 1 of this article, if the contractor applies for extension of construction period within the agreed time limit and the employer fails to reply, the contractor still needs to prove that the reason for extension of construction period is in line with the contract, which is more stringent for the contractor
.
4
.
The agreement that “if the Contractor fails to apply for extension of the construction period within the agreed time limit, it shall be deemed that the construction period shall not be extended” belongs to the clause of “claim for loss of right after the time limit”
.
General contract clause 19.1 (1) in the construction contract of construction project (model text) (gf-2017-0201) stipulates that if the Contractor fails to issue a notice of intention to claim within the agreed period, he will lose the right to claim additional payment and / or extend the construction period
.
However, in judicial practice, the court often does not recognize the general contract terms that affect the major rights and obligations of the parties
.
Therefore, it is suggested that “claim for loss of right after the expiration of the time limit” should be specially stipulated in the special contract terms or other contract documents
.
In addition, if only the time limit of claim for construction period is agreed, and it is not clear that “if the application for extension of construction period is not submitted within the agreed time limit, it is deemed that the construction period is not extended”, the Contractor’s claim for overdue construction period will not result in loss of right
.
5
.
Paragraph 2 of this article, on the premise of admitting “losing the right to claim for overdue compensation”, also uses the proviso to set an exception – “except that the employer agrees to extend the construction period after the agreed time limit or the contractor puts forward a reasonable defense”
.
The so-called “reasonable defense” is usually understood as a reasonable reason for the Contractor’s failure to file a claim within the agreed time limit
.
However, the first people’s Court of the Supreme People’s court held in the original construction project judicial interpretation (2) understanding and application that as long as the contractor can prove that his failure to file an application for extension of the project within the agreed time limit does not affect the fact determination of responsibility for the construction period, and the construction period is smooth If the reason for delay is in line with the contract, it can support the Contractor’s claim for extension of labor period
.
Remarks: the new interpretation refers to the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases (1) (issued on December 29, 2020 and implemented from January 1, 2021) and the original construction project judicial interpretation refers to the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases (January 1, 2005) The original judicial interpretation of construction project (2) refers to the Supreme People’s court’s interpretation of applicable law in the trial of construction contract disputes (2) (implemented on February 1, 2019)
.
Reference book: understanding and application of judicial interpretation of construction contract of the Supreme People’s court, people’s court press, September 2, 2015
.
Understanding and application of judicial interpretation of construction contract of the Supreme People’s court, people’s court press, 1st edition, January 2019
.
Guo Junfu, a member of the Communist Party of China, is an intern lawyer and patent agent of Beijing Dacheng (Shijiazhuang) law firm
.
He once served as a military supervisor and military legal adviser of the central war zone Procuratorate of the Chinese people’s Liberation Army, a section level cadre of the Department of housing and urban rural development of Hebei Province, a law enforcement supervisor of the Department of housing and urban rural development of Hebei Province, a public lawyer of the Department of housing and urban rural development of Hebei Province, an inspector of urban rural planning of Hebei Province, a founder of the legal expert database of Hebei Province, a member of the intellectual property professional committee of Beijing Dacheng Law Firm, and a member of the army to lawyer Federation He is the initiator of the intellectual property research group, Deputy Secretary General of the legal expert committee of Hebei affordable housing association, invited legal experts from many provincial industry associations, and member of China law society..
.
