Article 793 [treatment of invalid construction contract and unqualified acceptance] if the construction contract of a construction project is invalid, but the construction project has passed the acceptance, the contractor may be compensated at a discount according to the contract agreement on the project price
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If the construction contract of the construction project is invalid and the construction project experience is not qualified, it shall be handled according to the following circumstances: (1) if the repaired construction project passes the acceptance, the employer may request the contractor to bear the repair cost（ 2） If the experience of the repaired construction project is unqualified, the contractor has no right to ask for compensation according to the contract
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If the employer is at fault for the loss caused by the disqualification of the construction project, he shall bear the corresponding responsibility
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Article 793 of the civil code has no corresponding provisions in the contract law, which is based on the absorption and revision of articles 2 and 3 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes
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This article changes the judicial interpretation of “after completion acceptance” to “after acceptance” and “paying the project price according to the contract” to “referring to the contract about the project price discount compensation”, which makes the expression of the article more accurate, standardized and more in line with the situation in practice
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At the same time, this article is also related to Article 157 of the civil code, which reflects the application of the general provisions in specific fields
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Judgment rules of similar cases 1
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If the construction contract of a construction project is found to be invalid, but the project has passed the completion acceptance, the employer shall pay the project price according to the contract agreement, However, the labor and construction materials of the constructor have been materialized in the construction project
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According to Article 2 of the Supreme People’s court’s interpretation on the applicable law for the trial of construction contract disputes, the construction project contract is invalid, but the construction project has passed the completion acceptance, and the contractor requests to refer to the valid contract for treatment, The cost of the project involved should be calculated according to the contract, and the contractor should not get more benefits than when the contract is valid
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Case No.: (2011) min Ti Zi No
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235 trial court: Supreme People’s court case source: Supreme People’s court Bulletin No
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11, 2013 (total No
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205) 2
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Settlement can be made according to the agreed way after the construction contract is determined to be invalid The gist of the case: the construction contract that must be bid but not be bid is invalid because it violates the mandatory provisions of the law
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If both parties clearly agree in the contract that the audit conclusion of the audit institution shall be used as the basis for settlement, even if the contract is invalid, the true intention of both parties shall be respected, and the settlement shall be made according to the audit conclusion made by the audit institution according to law
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Case No.: (2017) Yu 01 min Zhong No
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5550 trial court: Chongqing first intermediate people’s court, The employer shall be liable for the discount compensation to the Contractor — gist of the case of Shengyuan Group Co., Ltd
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v
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Weifang yajuyuan investment real estate Co., Ltd
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over the construction contract of the construction project: after the construction contract of the construction project is invalid, the employer shall be liable for the discount compensation to the contractor
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If the acceptance of the project is qualified, the calculation of the discount compensation can be calculated according to the pricing method agreed in the construction contract, because the pricing method agreed in the construction contract is in line with the construction market and close to the actual value of the construction project
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Case No.: (2017) Supreme People’s court No
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360 trial court: Supreme People’s court case source: civil trial guidance and reference (volume 2018) 4, However, if the construction project has passed the completion acceptance, the project price shall be paid according to the contract
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Gist of the case of construction contract dispute between Hongshan company and Qingyuan company: the construction contract of the construction project is invalid, but the construction project has passed the completion acceptance, unless both parties agree to settle according to the fixed price or market price, Otherwise, the project price shall be paid according to the contract
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Case source: civil trial guidance and reference, Volume 4, 2011 (total volume 48) 5
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Although there are defects in the project quality, the contractor paid the repair cost to repair, He advocates the achievement of the conditions of project funds — the gist of the case of Jiangsu Nantong Liujian Construction Group Co., Ltd
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v
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Tangshan Tonghua Real Estate Development Co., Ltd
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over the construction contract of construction project: the construction contract of construction project has come into effect, and the judgment is invalid, although the project has not passed the acceptance, and the project quality has defects, However, the repair cost of the contractor has been confirmed and paid in a separate judgment, and the contractor requests the employer to pay the project payment according to the contract
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Case No.: (2019) Supreme People’s court No
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504 trial court: Supreme People’s court case source: China judicial document website date: October 086, 2019 The gist of the case: the actual construction person is a natural person, does not have the construction qualification, and the construction contract between him and the employer is invalid
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If the quality of the construction project is unqualified, the actual constructor has no right to claim the project payment according to the construction contract
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If the employer contracts the project to an individual without construction qualification, he should foresee the invalidity of the contract and the defects of the project quality, and if the employer fails to strictly perform the statutory structural acceptance obligations, he should bear the corresponding civil liability for the unqualified project quality and the losses caused
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Case No.: (2017) Supreme People’s court No
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247 trial court: Supreme People’s court case source: China judicial documents website date: January 157, 2019
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The construction contract of the construction project is invalid, The prerequisite for the contractor to request to pay the project price according to the agreement is that the project has passed the completion acceptance or has passed the completion acceptance after the repair, The construction contract of construction project is invalid, but the clearing and settlement clause in the contract is an independent agreement, which should be used as the basis for settling the project price
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If the construction contract is invalid, the prerequisite for the contractor to request to pay the project price according to the contract is the completion acceptance or the completion acceptance after repair
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When the construction project has not passed the completion acceptance and has not been repaired, the conditions for the employer to pay for the project are not fulfilled
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Case No.: (2018) chuanminchu No
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47 trial court: Sichuan Provincial Higher People’s court case source: China judicial document website release date: January 18, 2020
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If the construction contract of the construction project is invalid and the contractor refuses to repair the project with quality defects, the contractor has no right to claim the employer to pay for the project – Gansu Gaoshan new energy Co., Ltd
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v
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Xuji Group Co., Ltd Case gist of Shandong Dahai Group Co., Ltd
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construction contract dispute appeal case: the construction contract is invalid because the employer fails to perform the bidding procedure.
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