There is a view that discount compensation has the nature of loss compensation.
Under the arrangement of the general and separate system of the civil code, the rule of invalidity of construction contract in the first paragraph of article 793 has become the subordinate rule of Article 157.
[Jiangsu Lawyer Wang Yulin, provide you with professional legal advice, Tel: 13770656055] paragraph 1 of article 793 of the Civil Code stipulates that the construction contract of the construction project is invalid, but if the construction project passes the acceptance, the contractor can be compensated by referring to the contract on the project price.
The provision of Article 153 of the civil code on the invalidity of civil legal acts in violation of laws and administrative regulations maintains the consistency between public law and private law from the macro perspective of the integrity of the legal system..
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The author believes that the discount compensation here does not take the fault as the element and the complete filling of the loss as the standard.
The legal consequences of the invalidity of a civil legal act include the return of property, discount compensation and loss compensation.
The above rules are intended to confirm or peel off the “residual value” in the invalid legal act, so as to realize the relaxation of the invalid legal act system, which is in line with the modest position of public power intervening in the field of private law.
Although the conversion rules and recognition rules of invalid legal acts stipulated in the traditional civil law outside the region (such as articles 140 and 141 of the German Civil Code) are not clearly stipulated in the civil code, the priority compensation rules of pledge and liquid terms stipulated in articles 401 and 428 of China’s civil code also reflect the concept of conversion of invalid legal acts.
Therefore, when the construction contract of the construction project is invalid, the right to claim for the return of discount shall be based on the acceptance of the construction project, so as to ensure the consistency of the constituent elements between the right to claim for the compensation of discount and the right to claim for the return of unjust enrichment.
When the construction contract of the construction project is invalid, the qualified construction project delivered by the contractor is the property obtained by the employer due to invalid legal acts, which should be converted and priced according to the objective value of the construction project.
It stipulates that “if it is impossible or unnecessary to return, discount compensation shall be made.” It can be seen that discount compensation is an alternative way of liability for returning property.
No matter what reason it occurs, there is no reason to completely deny the normative effect of the party’s expression of will on the debt of unjust enrichment.
However, the debt of unjust enrichment has the attribute of civil law.
In the case of invalid construction contract of construction project, if the contractor has constructed and the construction project has passed the acceptance, the factual basis of discount compensation is performance act, not legal act.
“Referring to the agreement on project price in the contract” is formally expressed as “effective treatment of invalid contract”, and its legitimacy can be proved from the following three aspects: 1 The relaxation of the system of invalidity of legal acts.
The claim for the return of property takes the specific object previously paid as the object, and there may be de facto or legal obstacles to the return of the specific object, and it is also possible that the return of property needs to pay too high cost for both parties.
The invalid legal act has no legal binding force from the beginning.
This is the rule of invalid discount compensation for construction contract of construction project, which originates from the provisions of Article 2 of the original interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contract of construction project.
There is a kind relationship between invalid contract and invalid legal act.
Therefore, the basis of the claim right of discount compensation is not the claim right of compensation, but the claim right of unjust enrichment return.
The act of performance itself constitutes a legal fact and produces a legal obligation of unjust enrichment, which is different from the voluntary creditor’s right based on the legal act.
The system of invalid legal act is the most severe measure to regulate legal act, which reflects the maximum intervention of state public power in private law autonomy.
The partial invalidity rules of civil legal acts stipulated in Article 156 of the civil code, the invalidity rules of exemption clauses stipulated in article 506 and the independence rules of dispute settlement clauses stipulated in article 507 separate the invalid clauses or effective clauses through the “cutting method” in both positive and negative directions.
Since the construction project is a real estate attached to the land with the use right of the employer, when the construction contract of the construction project is invalid, the responsibility form of property return can not be applied to the labor or property paid by the contractor, and the interest relationship can only be adjusted by means of discount return.
The coordination of private law autonomy and public law compulsion.
The legitimacy of “referring to the agreement on the project price in the contract”, since the legal basis of the claim for discount compensation lies in the claim for the return of unjust enrichment, the scope of return should be determined according to the rules of the return of unjust enrichment.
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The fundamental feature of invalid legal act is to deny the right to claim performance.
The consideration of compensation is to exempt the responsibility of property return, so as to reply to the change of interests due to the previous payment.
Since the construction project that has not passed the acceptance shall not be delivered for use, the employer can be recognized as having the interests of the construction project in the legal sense only after the construction project passes the acceptance.
basis of claim for discount compensation Article 157 of the general provisions of the civil code makes a general provision on the legal consequences of the invalidity of a civil legal act.
The first paragraph of article 793 of the civil code adjusts the expression of the above judicial interpretation requesting payment of project price to discount compensation, which makes the logical relationship between the rules of invalid consequences of construction contract of construction project and the rules of invalid consequences of legal act clearer.
When the construction contract of the construction project is invalid due to the violation of administrative regulations, not due to the imbalance of consideration or the distortion of intention, understanding the agreement on the project price as the settlement agreement reached by the parties in advance on the amount of unjust enrichment does not violate the basic value of the civil law.
In these cases, it is impossible or unnecessary to return the property, and the claim for the return of property is transformed into the claim for discount compensation.
However, it can not be considered that all the expressions of intention of the parties have no legal significance.
