Click the blue word above to bring good luck!! Lawyer Feng Weihua first class constructor (municipal public) lawyer Feng Real Estate and construction engineering team real estate and construction engineering company law economic contract criminal defense after the construction contract is terminated, the construction unit can require the owner to pay the expected profit according to the profit rate specified in the quota
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Trial gist the people’s court may determine the expected benefits according to the profit rate in the local quota, but the contract price as the profit base shall be deducted from the construction cost
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Case index (2014) min Zhong Zi no.1434 – Fuqing Branch of industrial and Commercial Bank of China Limited and Fuzhou Rihui Construction Engineering Co., Ltd
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dispute focus on the determination of expected profit loss in the second instance of construction contract dispute case 》It is the true intention of the parties, and the content does not violate the mandatory provisions of laws and administrative regulations, so it is legal and effective
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Both parties shall fully perform their obligations as agreed
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The suspension of the project due to the adjustment of the government’s planning distance is not within the scope of force majeure agreed by both parties in the contract
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Article 44.6 of the general terms of litigation contract stipulates that the party at fault shall compensate the other party for the loss caused by the termination of the contract
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According to the first paragraph of article 113 of the contract law on the amount of compensation for losses including the benefits that can be obtained after the performance of the contract, it is not improper to determine in the first instance that the profit rate of the project in dispute is 2% according to the provisions of Fujian Province construction and installation engineering cost quota, but the contract price as the profit base should be deducted from the part of the project that has been constructed, that is (9554597 yuan – (727272.88 yuan + 36067.52 yuan)] × 2% = 8791256.6 yuan × 2% = 175825.13 yuan
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After the termination of the contract, if the contract has not been performed, the performance shall be terminated; if the contract has been performed, the party concerned may, according to the performance and the nature of the contract, request restitution or take other remedial measures, and has the right to claim compensation for the losses
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If the contract is terminated due to breach of contract, the person with the right to terminate may request the breaching party to bear the liability for breach of contract, unless otherwise agreed by the parties
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After the termination of the main contract, the guarantor shall still bear the guarantee liability for the civil liability of the debtor, unless otherwise stipulated in the guarantee contract
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Article 584 where a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, thereby causing losses to the other party, the amount of compensation for losses shall be equivalent to the losses caused by the breach of contract, including the benefits that may be obtained after the performance of the contract; however, it shall not exceed the possible losses caused by the breach of contract that the party in breach of contract foresaw or should have foreseen at the time of conclusion of the contract
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Project management – lawyers suggest that in previous lawsuits, construction companies often have this idea: “we didn’t do it, how can we make a profit?” According to the final judgment of Fujian Higher People’s court, even if the construction unit does not do it, it can ask the owner to pay the overdue profits
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In my opinion, it is questionable to determine the profit rate of the project in dispute as 2% according to the direct application of the “Fujian Construction and installation engineering cost quota”
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The reason is that the benefit after the expiration of the time limit refers to the loss that is expected or should be foreseen when the contract is concluded
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Therefore, the most direct evidence to judge the overdue benefits should be the comprehensive unit price analysis table of divisional and itemized bill of quantities in the tender document of the construction unit
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Therefore, the construction unit should pay special attention to the preparation of the table when bidding, especially when bidding by unbalanced quotation
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In the process of project management, the construction unit must pay attention to collect the evidence that the owner’s breach of contract leads to the construction can not continue, so as to obtain the right to terminate
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This is the premise of claiming the interests after the termination
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Feng zhongruo, lawyer accountant, private fund manager, lawyer Feng, real estate and construction engineering team, real estate and construction engineering criminal defense, economic contract tax planning.
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