At this time, the problem is converted to the treatment method when the construction party does not cooperate with the completion acceptance
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According to Item 4 of Article 3 of several opinions on strengthening the quality management of residential projects issued by the former Ministry of housing and urban rural development, the property right certificate can be handled only after the completion acceptance and filing of residential projects
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In case of the employer’s bankruptcy, the administrator may file a lawsuit to the court on behalf of the employer to require the contractor and the construction party to perform the obligation of assistance
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Therefore, in the construction contract of construction project, organizing completion acceptance is not only the right of the employer, but also the obligation of the employer
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【 [reason] The nature of the claim for construction project price in the bankruptcy procedure is different due to the different time of the claim
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After the people’s court accepts the bankruptcy case, the administrator may take various measures to promote the resumption and continuation of the project under construction in order to maximize the value of the debtor’s property
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【 Reference basis] 《 Enterprise Bankruptcy Law Article 42 The following debts incurred after the people’s court accepts the bankruptcy application are joint beneficial debts: (1) debts arising from the request of the administrator or the debtor for the other party to perform the contract that has not been performed by both parties（ 2） Debts arising from the management of the debtor’s property（ 3） Debts arising from the unjust enrichment of the debtor（ 4） Labor remuneration and social insurance expenses payable for the debtor’s continued business and other debts arising therefrom（ 5） Debts arising from personal damage caused by the performance of duties by the manager or relevant personnel（ 6） Debts arising from damage to the debtor’s property.
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The claim for construction project price generated before the people’s court accepts the bankruptcy case enjoys special priority
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If the construction party does not cooperate with the acceptance and does not submit the materials required for the acceptance, the manager may request the people’s court for coordination or bring a lawsuit to the people’s court
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Therefore, if the administrative organ recognizes the alternative measures, it can be entrusted by the administrator or the administrator requests the court to entrust the appraisal institution to carry out the appraisal according to its provisions, and handle the filing after obtaining the safety appraisal report
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In the process of handling bankruptcy cases, the importance of completion acceptance lies in that only after the completion acceptance report is obtained can the completion acceptance record be handled, and then the relevant property right certificate can be handled
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According to paragraph 1 of Article 16 of the regulations on the quality management of construction projects, after receiving the completion report of construction projects, the construction unit shall organize relevant units such as design, construction and project supervision to conduct completion acceptance
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The materials to be submitted for the completion acceptance and handling the completion acceptance filing specified in paragraph 2 of Article 16 and paragraph 1 of Article 49 of the regulations on the quality management of construction projects and Article 5 of the administrative measures for the completion acceptance filing of housing construction and municipal infrastructure include technical archives and construction management materials Main building materials used in the project, mobilization test reports of building components, fittings and equipment, quality qualification documents signed by the construction unit, project warranty and other materials that need to be provided by the contractor
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When the debtor, i.e
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The completion acceptance requires the cooperation of the contractor
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If the Contractor fails to perform the cooperation obligation, under normal circumstances, the employer may bring a lawsuit to the court
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If the administrative organ does not recognize the effectiveness of alternative measures, at this stage, it can only solve this dilemma through litigation
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On the premise of not violating the legal provisions and not damaging the legitimate rights and interests of other creditors, the manager can issue a written guarantee to win the cooperation of the construction party in the acceptance work
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If the requirements of the construction party exceed the scope guaranteed by the price priority of the construction project, the manager cannot issue a written guarantee
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However, due to the strong professionalism of the construction contract of the construction project, in general, there are some problems, such as being easy to be rejected because the application is not clear or the judgment is not enforceable
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Therefore, no matter whether the claim for the construction project price is established before or after the acceptance of the bankruptcy case, it can be paid off in priority compared with the ordinary bankruptcy claims, and this priority is a legal right, and its rights shall not be derogated from in the bankruptcy proceedings without the consent of the construction project contractor
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As for whether the contractor should bear the liability for breach of contract due to his failure to perform the obligation of assistance, it can be solved separately after the manager disposes of the construction project
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In the bankruptcy procedure, the long-time litigation procedure conflicts with the legislative goal of the bankruptcy law
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Therefore, even if the manager does not issue a written guarantee, Nor shall it prevent the Contractor from exercising its rights
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According to Article 279 of the contract law (article 799 of the civil code), after the completion of the construction project, the employer shall carry out the acceptance in time according to the construction drawings and instructions, the construction acceptance standards and quality acceptance standards issued by the state
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If the construction party refuses to deliver the built project without a written guarantee and does not cooperate with the project acceptance, what should be done? 【 [answer] The priority of project price is a legal right, and there is no need for written guarantee
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Cooperation in completion acceptance shall be the Contractor’s obligation
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Therefore, completion acceptance is very important for construction projects
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After the completion of the project, the construction party requires the manager to issue a written guarantee for the priority of the project payment
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If the Contractor does not cooperate and assist, the completion acceptance and filing cannot be completed
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Use the safety appraisal report instead of the completion acceptance report to handle the completion acceptance filing
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After handling the property right certificate, the administrator can dispose of the debtor’s property in time to maximize the value of the bankruptcy property
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In practice, the contractor may refuse to cooperate with the employer in handling the completion acceptance as a means to require the employer to pay the project price, especially when the employer is in bankruptcy, the contractor is more likely to achieve the goal of maximizing his rights by this means
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Of course, since the priority of compensation for the construction project price is a legal right, the written guarantee issued by the manager will not substantially affect the interests of all parties in the bankruptcy proceedings
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In practice, some places have tried to replace the completion acceptance report with the housing construction safety appraisal report
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For example, item 3 of Article 3 of the measures of Dongguan Construction Bureau on the handling of disputes over the filing of project completion acceptance stipulates: “if the construction unit refuses to submit relevant completion acceptance materials, The construction unit may entrust an appraisal institution with judicial appraisal qualification to issue a housing construction safety appraisal report
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The purpose is for the interests of all creditors, and it should also belong to the category of mutual benefit debt
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Therefore, in order to win the construction party’s support for the project completion acceptance, the manager can also issue a letter of guarantee with prompt and explanatory significance without violating the legal provisions, To ensure the smooth progress of bankruptcy proceedings
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The project acceptance shall be the right of the employer, and the manager, as the manager of the employer’s property, shall organize the completion acceptance
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At this time, if the manager decides to continue to perform the original construction contract, the claim right for the construction project price arising from the continued performance belongs to “the debt arising from the manager or the debtor requesting the other party to perform the contract that has not been performed by both parties”, which belongs to mutual debt according to Article 42 of the enterprise bankruptcy law
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the employer, goes bankrupt, it can constitute an exclusive right and can be paid off in priority in terms of the value of the construction project
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Hoping to solve this problem by litigation procedure may not be the best choice
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According to Article 286 of the contract law (article 807 of the civil code), the price of the construction project can be paid preferentially with the price converted or auctioned for the project
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According to paragraph 1 of Article 43 of the enterprise bankruptcy law, the mutual benefit debt shall be paid off by the debtor’s property at any time
The key to this solution lies in the recognition of the effectiveness of the appraisal report by the administrative organ and the full understanding of the authority and independent status of the manager
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” According to this provision, even if the Contractor does not cooperate with the completion acceptance, the manager can also obtain the completion acceptance record by means of entrusted appraisal
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If the manager signs a new construction contract, it belongs to the debt borne by the transaction with a third party for the continued operation of the bankrupt enterprise
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