Article 9 if the parties have disputes over the actual completion date of a construction project, the people’s court shall determine it in accordance with the following circumstances: (1) if the construction project has passed the completion acceptance, the date on which the completion acceptance is qualified shall be regarded as the completion date; (2) if the contractor has submitted the completion acceptance report and the employer delays the acceptance, the date on which the Contractor submits the acceptance report shall be regarded as the completion date The date of completion; (3) if the construction project is used by the employer without authorization without completion acceptance, the date of transfer of possession of the construction project shall be regarded as the date of completion
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1、 The original article content Article 14 of the original judicial interpretation of construction project, if the parties have disputes on the actual completion date of the construction project, they shall deal with them separately according to the following situations: (1) if the construction project has passed the completion acceptance, the date of the completion acceptance shall be the completion date; (2) if the contractor has submitted the completion acceptance report and the employer delays the acceptance, the Contractor shall submit the acceptance report The date of receiving the report shall be the date of completion; (3) if the construction project has not been completed for acceptance and the employer uses it without authorization, the date of transferring possession of the construction project shall be the date of completion
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2、 Article changes in this article, the “separate treatment” is amended to “be recognized”
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3、 Lawyer’s interpretation of this article is about how to determine the actual completion time of construction project
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This article has the following meanings: if the parties have disputes on the actual completion date of the construction project, if the construction project is excellent or qualified after the completion acceptance, the date of the completion acceptance shall be regarded as the completion date; if the construction project is unqualified after the acceptance, the Contractor shall carry out rectification in accordance with the standards agreed in the contract or relevant engineering quality and technical specifications, and meet the requirements of the contract If the contractor has already submitted the completion acceptance report and the employer delays the acceptance for various purposes, the time for the completion acceptance may be delayed
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At this time, the date when the Contractor submits the acceptance report shall be regarded as the date for the completion of the project; if the construction project has not been completed If the project acceptance is used by the employer without authorization, the date of transfer of possession of the construction project shall be taken as the standard for determining the completion date
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The completion acceptance of construction project should meet the following conditions: 1
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Complete the contents of the construction project design and the contract; 2
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Have complete technical files and construction management data; 3
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Have the site test reports of the main building materials, building purchased parts and equipment used in the project; 4
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Have the quality qualification documents signed by the survey, design, construction, project supervision and other units; 5
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Have the construction documents Project warranty signed by the company
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The “Regulations on the quality management of construction projects” promulgated by the State Council has completely changed the traditional practice of project completion acceptance by quality supervision institutions on behalf of the government
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Instead, the construction units are responsible for organizing the design, construction, project supervision and other relevant units to carry out the completion acceptance
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The quality supervision institutions no longer undertake the responsibility of directly participating in the project quality inspection on behalf of the government
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The construction unit is in the leading position in the acceptance, and the function of the quality supervision organization has been desalinated
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“Construction contract and contract pricing management measures” also stipulates: “the contract awarding party shall reply within the agreed period after receiving the completion settlement documents
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If there is no reply within the time limit, the completion settlement documents shall be deemed to have been approved
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If the time limit for the above matters is not clearly stipulated by both parties in the contract, the time limit may be 28 days
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” “Civil Code” and “construction law” only stipulate in general: “only after the completion of a construction project has passed the acceptance can it be delivered for use; those that have not passed the acceptance or have not passed the acceptance shall not be delivered for use.” It does not specify the consequences or responsibilities of the employer’s unauthorized use of the unaccepted project
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In other words, the current effective laws and regulations do not stipulate that the quality problems of the project without acceptance shall be borne by the employer
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However, there is no doubt that the employer should bear certain legal responsibility for using the unaccepted project without authorization
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Article 58 of the regulations on the quality management of construction projects issued by the State Council stipulates: “in violation of the provisions of these regulations, the construction unit shall be ordered to make corrections and be fined not less than 2% but not more than 4% of the contract price of the project; if losses are caused, it shall be liable for compensation in accordance with the law: (1) without organizing the completion acceptance, it shall be delivered for use without authorization; (2) if the acceptance is unqualified, it shall be delivered for use without authorization (3) acceptance of unqualified construction projects as qualified projects
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” It can be seen from this article that the employer should be punished severely for unauthorized use of construction projects that have not been accepted
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The employer should be aware of the illegality of this act and have subjective fault
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When the employer has the fault of using the construction project in advance without acceptance, he should bear the corresponding legal responsibility for his fault
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It is obviously inappropriate for the employer to use the project without acceptance, but refuse to pay the project funds on the ground that the project has not been completed and accepted in case of dispute
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Therefore, it is reasonable and legal to take the date of transfer of possession of the construction project as the date of completion
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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)
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Reference book: understanding and application of judicial interpretation of construction contract of the Supreme People’s court, people’s court press, September 2, 2015
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Understanding and application of judicial interpretation of construction contract of the Supreme People’s court, people’s court press, 1st edition, January 2019
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Guo Junfu, a member of the Communist Party of China, is an intern lawyer and patent agent of Beijing Dacheng (Shijiazhuang) law firm
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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..
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