Judgment rule 1
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The actual construction date recorded in the supervision regular meeting record can be used as the basis for determining the commencement date Written records such as supervision record form can prove the actual commencement date of the project
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The actual construction date stated in the regular supervision meeting is regarded as the commencement date of the project involved in the case, which conforms to the provisions of relevant judicial interpretation
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Case No.: (2019) Supreme People’s Court of justice No
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3651: Supreme People’s court case source: selected by Faxin 2
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The project has been constructed without construction license and thus subject to administrative punishment, which does not affect the determination of the actual commencement date Gist of retrial case of construction contract dispute of Yiyang Ziyang business investment and Development Co., Ltd.: the determination of the commencement date should adhere to the principle of seeking truth from facts, based on the date agreed in the contract and recorded in the construction license, and taking the date closest to the actual construction site as the commencement date according to the objective actual situation of the project
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The fact that the project has been actually constructed and subject to administrative penalty before obtaining the construction license does not affect the court’s determination of the actual commencement date
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Case No.: (2018) Supreme People’s court No
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442 trial court: Supreme People’s court case source: selected from Faxin 3, The starting date should be the time when the starting conditions are met, However, the time of obtaining the construction permit is inconsistent with the commencement date specified in the project commencement report and the commencement report
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In combination with the relevant circumstances of the case, if the time of obtaining the construction permit meets the commencement conditions, the date can be regarded as the commencement date
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Case No.: (2015) minshenzi No
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201 trial court: Supreme People’s court case source: China judicial documents website release date: June 304, 2015, The date when the conditions for commencement are fulfilled shall be regarded as the date of commencement
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Gist of the case of retrial of the construction contract dispute between Wenquan shunkaida Mining Co., Ltd
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and Bozhou Shengyuan Electric Power Co., Ltd.: if the contractor is unable to enter the construction site according to the time agreed in the contract due to the lack of construction conditions due to the employer’s reasons, the contractor has reasonable reasons to postpone the construction period, The actual commencement date shall be the date when the commencement conditions are fulfilled
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Case No.: (2011) minshenzi No
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48 trial court: Supreme People’s court case source: selected by Faxin 5
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If the parties have disputes about the commencement date, the commencement date can be determined by comprehensive quality acceptance report, completion acceptance certificate, supervision diary, site meeting minutes, etc Gist of the appeal case of construction contract dispute of Yancheng Shengcheng Real Estate Development Co., Ltd.: the commencement date stated in the project quality acceptance report and the completion acceptance certificate is before the date of issuing the construction permit of the project involved and the date stated in the commencement report issued by the supervisor, and according to the supervisor’s diary The site meeting minutes show that the project has the conditions to start before the previous start date, so the start date can be determined by comprehensive quality acceptance report, completion acceptance certificate, supervision diary and site meeting minutes
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Case No.: (2019) suminzhong No
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93 trial court: Jiangsu Higher People’s court case source: selected by Faxin, Take the actual construction time as the commencement date — the case gist of the appeal case of the construction contract dispute between Gansu tengtai Highway Construction Co., Ltd
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and Gansu Xinhai Water Conservancy Technology Development Co., Ltd.: Although the project involved in the case actually obtained the construction land planning permit and the construction project planning permit later, However, both parties have no objection to the fact that the contractor enters the site according to the commencement date agreed in the contract, so it can be determined that the actual construction time is the commencement date
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Case No.: (2019) GMZ No
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289 trial court: Gansu Provincial Higher People’s court case source: selected by Faxin 7
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In case of dispute over the commencement date, the commencement date can be recognized as the actual commencement date in the relevant instructions issued by the quality supervision department recognized by both parties Bengbu Changda real estate Development Co., Ltd Gist of Tang Guijun’s appeal case on construction contract dispute of construction project: if the actual commencement date specified in the quality related description of the project involved in the case issued by the local construction project quality supervision station is recognized by both parties or the contrary evidence is not submitted for refutation, it can be recognized as the actual commencement date accordingly
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Case No.: (2018) wanminzhong No
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340 trial court: Anhui Higher People’s court case source: China judicial documents website release date: August 028, 2018
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If the parties have agreed on the commencement time for many times, the commencement date shall be determined by the true intention of both parties The gist of Fujian Minnan Construction Engineering Co., Ltd
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construction contract dispute case: both parties have changed the starting time of the construction period for many times, and the starting time of the construction period should be determined according to the real intention of both parties, that is, the commencement date
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Case No.: (2016) minminzhong No
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165 trial court: Fujian Higher People’s court case source: Faxin selected judicial point of view 01 construction license is not the only evidence to determine the commencement date
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According to the judicial interpretation, construction license is not the only evidence to determine the commencement date
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The construction permit of construction project is the certificate of construction permission issued by the competent department of construction to the construction unit, which indicates that the construction project meets the corresponding starting conditions
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Whether or not to obtain the construction license is the issue of whether or not to obtain the administrative license for construction
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The issue of commencement time involves civil law issues such as whether the parties should bear the responsibility for breach of contract
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The actual commencement date is a matter of fact, which should be subject to the occurrence of objective facts
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In the process of construction project, there are many factors that affect the start-up conditions
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Sometimes, after obtaining the construction permit, the contractor cannot enter the site for construction immediately due to various reasons
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The starting time recorded in the construction permit may be earlier than the actual construction time of the contractor
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Sometimes, the contractor has entered the site for construction, and the employer obtains the construction permit later, and the commencement date specified on it is later than the Contractor’s entry time《 Article 64 of the construction law of the people’s Republic of China on the construction license belongs to the administrative management scope of the competent department of construction
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If the construction starts without the construction license, the competent department shall instruct it to make corrections
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If the construction fails to meet the requirements for commencement, the competent department shall instruct it to suspend the construction immediately or impose a fine
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However, this does not necessarily have a substantial impact on the commencement date
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If the contractor has actually entered the site for construction and takes the absence of construction permit or the delay in the issuance of construction permit as the defense reason for the delay of construction period, it is necessary to further prove that the construction can not be started due to the lack of construction permit, or the construction is suspended by the construction department
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Therefore, if the employer or the supervisor does not issue the notice of commencement, and there is no relevant evidence to prove the actual commencement date, the construction permit can be taken as a consideration, but the actual construction time can not be ignored, and the construction permit can be taken as the only basis to determine the commencement date
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02 impact of commencement conditions on commencement date and extension of construction period the review of commencement date is mainly related to extension of construction period
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If there is no legal or agreed reason, the employer and the Contractor shall not postpone the construction period at will
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In the process of performing the contract, one of the circumstances that the contractor can postpone the project date is that the commencement date is not specified in the notice to commence.
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