If the contractor claims that the liquidated damages are too high, the court can adjust it according to law
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The Contractor shall complete the project construction according to the construction period agreed by both parties, otherwise the expenses caused by the construction period delay caused by the contractor, including liquidated damages and construction period delay losses, shall be borne by the contractor
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5
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Guangxi mining construction company claims that its shutdown losses include the wages payable to the management personnel of the construction team during the shutdown, wage compensation for workers of each team, rental loss of construction machines and tools, parking loss of construction materials, rental loss of construction tools, house rent, etc., totaling 18714188.2 yuan, and submits the statistical table of shutdown loss compensation to the first instance.
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Q: is the responsibility for construction delay determined by the appraiser? A: No, according to article 5.7.6 of code for appraisal of construction project cost (GB / t51262-2017), how the construction period delay belongs shall be determined by the court or arbitration institution according to law
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Time Haoting company not only claims liquidated damages for construction delay according to the contract, but also claims the actual losses caused by its delayed delivery, which is lack of legal basis
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The court of first instance has found that the construction of phase I project is delayed by nearly nine months compared with the construction period agreed in the construction contract of construction project signed by both parties, and Duban company puts forward that the above reasons for construction period delay cannot be established, so it shall bear the liability for compensation for construction period delay
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Q: if both the employer and the contractor are at fault for the delay of construction period, does the employer support the contractor to bear the liability for breach of contract for the delay of construction period? A: not supported
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2
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When it comes to the cost of construction delay, this paper discusses the construction delay caused by the contractor
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As stipulated in Article 9 (5) of the guidelines for entrusted appraisal of construction contract dispute cases of Jiangsu Higher People’s Court (minutes of the judicial committee of Jiangsu Higher People’s Court [2019] No
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Q: if the contractor violates the construction period agreement, can the employer impose a fine on the contractor? A: Yes, the legal nature of the fine belongs to liquidated damages
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It was not improper for the court of first instance to support the losses actually incurred by time Haoting company
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Q: if the employer claims that the Contractor’s labor period is delayed, and the contractor believes that the addition of construction content leads to the extension of construction period, but the evidence submitted by the contractor is not enough to prove his claim, should the contractor apply for construction period appraisal? A: Yes
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For example, Article 47 of the operating procedures for judicial appraisal of construction contract disputes in the first civil division of Jiangsu Higher People’s Court (December 21, 2015) stipulates that the employer claims the Contractor’s liability for breach of contract for delayed completion, and the contractor defends the extension of the construction period by increasing the work content of the contract, but the evidence submitted is insufficient to prove it, The Contractor shall apply for appraisal of the construction period
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According to relevant laws and regulations, 1533 judgment documents of construction contract dispute cases tried by the Supreme People’s court and the guiding judicial documents of some local courts, the author combs the 15 issues related to the construction period as follows for reference
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5, discussed and adopted at the 35th plenary meeting of the judicial committee of Jiangsu Higher People’s Court on December 27, 2019), the following matters:, The appraisal institution may request the entrusted court to clarify: (5) the basis for determining the agreed construction period and the actual construction period
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Q: can the loss of construction delay and liquidated damages for construction delay be claimed at the same time? A: No
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1、 Duration appraisal 1
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4
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The court of first instance did not determine its claim of late delivery loss on the ground that the evidence submitted by Dayuan company could not prove that its claim of loss had actually occurred, According to the agreement of both parties that the liquidated damages of RMB 10000 per day shall be borne for overdue delivery, it is considered that the loss of overdue delivery is RMB 1.19 million
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The reasons for construction delay include the Contractor’s reasons and non contractor’s reasons
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If the parties require adjustment in accordance with Article 114 of the contract law of the people’s Republic of China, the people’s court shall support it
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Question: is the basis for determining the construction period determined by the appraiser? A: the basis for determining the construction period belongs to the scope of judicial power exercised by the people’s court and cannot be determined by the appraiser
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3
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and Guangxi mining Construction Group Co., Ltd
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and Wanli Construction Co., Ltd
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Although Dayuan company submitted the house purchase contract, supplementary agreement for payment of liquidated damages, receipt and other evidence to prove its claim of late delivery loss of 2371715 yuan, it did not provide evidence to prove that the liquidated damages had been actually paid
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Secondly, the identification of delay delivery loss
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Q: if the evidence submitted by the employer is insufficient to prove the loss of construction delay, can the court determine the loss of construction delay with reference to the liquidated damages for construction delay? A: Yes
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2、 Construction delay loss and liquidated damages for construction delay 6
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9
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8
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For example, in the civil judgment of second instance on the construction contract dispute between Hebei Shidai Haoting Real Estate Development Co., Ltd
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For example, in the civil judgment of the second instance on the construction contract dispute between Ordos Dayuan Real Estate Development Co., Ltd
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For example, Article 27 of the opinions of the higher people’s Court of Jiangsu Province on Several Issues concerning the trial of construction contract dispute cases of construction projects (discussed and adopted at the 44th meeting of the Judicial Committee on December 17, 2008) stipulates that the employer may impose a fine on the contractor due to the construction period and other circumstances in the construction contract of construction projects, This Agreement shall be regarded as the liquidated damages clause agreed by the parties in the contract
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746), the Supreme People’s court held that the identification and bearing of economic losses of both parties
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Q: what are the main contents of construction period appraisal? Answer: according to article 5.7.6 of code for appraisal of construction project cost (GB / t51262-2017), the appraiser shall determine whether the construction period is delayed and the specific time of delay; The appraiser can put forward suggestions on the attribution of responsibility for construction delay from a professional perspective
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According to the existing evidence in this case, for the North Jiayuan phase I residential building and garage project, times Haoting company paid a total of 4110962.55 yuan to the house owner through fee reduction, and the court recognized the above amount
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Q: which units can do duration appraisal? A: at present, there are no regulations on the qualification management of construction period appraisal; The mainstream practice of judicial practice is to entrust cost consulting enterprises to carry out construction period appraisal
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The non contractor’s reasons include the employer’s reasons, force majeure, adverse material conditions, unusually bad weather conditions, etc
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973), the Supreme People’s court held that the final delivery time of the project involved in the case was September 28, 2011, nearly four months later than the completion time promised in the letter of commitment, Wanli company shall bear the liability for breach of contract for delayed handover
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For example, in the civil judgment of second instance on the construction contract dispute between Daozhen green real estate development Co., Ltd
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and Duban Construction Co., Ltd
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Therefore, the Contractor shall complete the project construction according to the construction period agreed by both parties, otherwise the expenses caused by the construction period delay caused by the contractor, including liquidated damages and construction period delay losses, shall be borne by the contractor
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871), the Supreme People’s court held that in this case, in combination with the cost of phase I project and the paid project funds, it should be considered that Shidai Haoting company has not defaulted on the payment of project funds, The construction delay of residential building and garage of North Jiayuan phase I project is not caused by objective factors such as engineering drawing design change
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Source: paragraph 1 of article 788 of the civil code of Haitan Tego stipulates that a construction project contract is a contract in which the contractor carries out the project construction and the employer pays the price
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Li Jianke’s Thoughts on reading Construction period will also produce creditor’s rights and debt relationship, which can be divided into legal debt and agreed debt
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Of course, the theoretical circle believes that the supervision organization can also do construction period appraisal
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