Both parties also agreed on the payment method in the payment agreement, and the remaining unpaid items will be paid in installments in the next nine months.
It undertakes the responsibility of returning property and compensating losses according to the degree of fault.
Article 807 If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period of time.
It is not a debt agreed in the contract and has the attribute of ordinary creditor’s rights.
and Party B real estate Co., Ltd.
signed the construction project construction contract (hereinafter referred to as the “construction contract”), which agreed that Party A should contract the Qingdao a project contracted by Party B, and agreed on the provisional project price and pricing basis.
After the signing of the construction contract, Xinxing company constructed project a and completed part of the project.
In judicial practice, we prefer the second view.
In practice, it is not uncommon for the construction contract of construction project to be invalid based on the improper subject, untrue or illegal expression of intention.
After hearing by the court, the construction contract signed between company a and company B is indeed invalid due to violation of the mandatory provisions of the law.
In this case, company B put forward a similar view and argued that the construction contract of the construction project is invalid.
If the construction contract of the construction project is invalid and the construction project experience is unqualified, 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 shall not have the right to request the discount compensation according to the contract on the project price.
“The priority to be paid for the construction project price is the legal priority given to the Contractor by the law to ensure that the Contractor receives remuneration for his own labor achievements.
The legal analysis of whether the exercise of the priority right to compensation of project price is affected by the effectiveness of construction contract has diametrically opposed views in theory and practice.
In terms of the nature of rights, as a kind of security interest, the right of priority of project price is subordinate to the agreed creditor’s right of construction project payment.
If the contract letting party fails to pay within the time limit, the contractor may negotiate with the contract letting party to discount the project, or apply to the people’s court to auction the project according to law.
Another view holds the opposite view, that according to the provisions of article 793 of the civil code, the contractor can claim the project payment with reference to the contract price, so it can naturally enjoy the priority of compensation for the project price.
Although according to Article 793 of the civil code, if the construction project passes the acceptance, the contractor can be compensated at a discount according to the contract on the project price, at this time, the nature of the remuneration received by the contractor has changed, not because of the project price agreed in the contract, but because of the loss compensation available according to law, The priority of project price is a legal priority.
This view is also reflected in the judgment of (2015) minshen Zi No.
One view is that after the construction contract of the construction project is invalid, the contractor no longer has the priority of compensation.
2311 case, in which the Supreme Court held that the validity of the construction contract of the construction project is the premise for the contractor to claim the priority of compensation for the project price.
556 case, in which the courts of first and second instance supported the claim of priority of compensation for the project price of company A.
At this time, can the contractor continue to claim the priority of compensation for the project price? Let’s take a look at the specific cases below.
Article 38 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (I) If the quality of the construction project is qualified and the contractor requests the price of the construction project to be repaid in priority with the price converted or auctioned, the people’s court shall support it.
The current main creditor’s right does not occur from the beginning because the contract is invalid, and the right of priority of project price does not exist.
Even if the construction contract of the construction project is invalid, company B shall bear the liability for discount compensation according to Article 2 of the judicial interpretation of the construction contract of the construction project (now the civil code) Article 793) It is stipulated that if the construction contract of the construction project is invalid, the project price can be calculated with reference to the construction contract.
The court of second instance held that giving the priority right to compensation of the project price to company a is in line with the contract law The legislative purpose stipulated in Article 286..
If the contract letting party is at fault for the losses caused by the unqualified construction project, it shall bear corresponding responsibilities.
Both parties confirmed that according to the settlement agreement, the total price of project a was RMB 100000000, the price paid by company B was RMB 60000000, and the project price still needed to be paid to company a was RMB 40000000.
From May to August 2013, emerging companies withdrew one after another.
Therefore, the contractor in the invalid contract shall not enjoy the priority of compensation for the construction project price.
If the contract is confirmed to be invalid, the parties shall bear the responsibility of returning the property and compensating for the losses according to the degree of fault, that is, it has the attribute of ordinary creditor’s rights.
On April 22, 2014, company a and company B separately signed the settlement agreement, in which both parties jointly confirmed and agreed that in project a, the final settlement total price of the construction contract for the actually constructed works completed by the contractor is RMB 100000000, which has deducted all quality repair costs up to the date of signing the settlement agreement.
That is, the liability for discount compensation is calculated with reference to the project price, and the calculation basis is still the labor, materials and management costs paid by the contractor, which belongs to the protection scope of the priority right to compensation of the construction project price.
Click the blue “seven methods garden” above to pay attention! Previously, the scope of the right subject of the priority of compensation for construction project price was briefly introduced in the article “scope of the right subject of the priority of compensation for construction project price”.
The court of second instance held that according to Article 286 of the contract law (now article 807 of the civil code): “If the contract letting party fails to pay the price as agreed, the contractor may urge the contract letting party to pay the price within a reasonable time.
The above dispute case between company a and company B over the project payment originated from the (2018) supreme law Minzhong No.
This view holds that the construction contract of the construction project is invalid, and the agreement on the project price is naturally invalid.
For the price of a construction project, priority shall be given to the price converted or auctioned for the project.
Since then, company B has paid company a 25000000 yuan, and the remaining 15000000 yuan has not been paid in accordance with the payment agreement.
Contractor company a should not enjoy the priority of compensation for the construction project price.
The price of the construction project shall be discounted for the project, except that it is not suitable to discount or auction according to the nature of the construction project Or the auction price has priority to be paid.
On the same day, company a and company B signed the payment agreement.
Then, can company a claim priority compensation for the remaining funds? Relevant laws provide for article 793 of the civil code 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 on the project price.
Specific case: on October 16, 2009, Party A Construction Development Co., Ltd.
In this regard, company B argued that the construction contract between the two parties was invalid, so company a did not enjoy the priority of compensation for the project price.
Company a appealed to the court to require company B to pay the remaining 15 million yuan of project funds and the corresponding overdue interest (hereinafter referred to as the “remaining funds”), and requested the court to confirm that Xinxing company has the priority to be compensated for the construction project price.
According to Article 3 of the reply of the Supreme People’s Court on the priority of compensation for construction project price, the project price of priority compensation includes the actual expenses such as staff remuneration and material payment that the contractor should pay for the construction project, excluding the losses caused by the Contractor’s breach of contract.
If the employer fails to pay within the time limit, except that it is not suitable to discount or auction according to the nature of the construction project, the contractor may negotiate with the employer to discount the project, or may request the people’s court to auction the project according to law.
