Link to article of the law: Article 3 of the provisions of the Supreme People’s Court on Several Issues concerning the application of the limitation of action system in the trial of civil cases Article 3 the people’s court will not support the party who did not raise a defense against the limitation of action during the first instance and raised it during the second instance, unless it can prove that the claim of the other party has expired the limitation of action based on new evidence.
Q5.
If the employer fails to pay within the time limit, the contractor may, in addition to the fact that the nature of the construction project is not suitable for conversion or auction, negotiate with the employer to convert the project into price, or request the people’s court to auction the project according to law.
if no defense of limitation of action is raised during the first instance, can the defense raised during the second instance be supported by the court? No.
if the employer has put the project into use before the completion acceptance, can it refuse to pay the project payment on the ground that the project has not passed the completion acceptance, and how to determine the completion date? The employer shall not refuse to pay the project payment for this reason.
If it is difficult to determine the contract actually performed, and the party concerned requests to compensate the Contractor by referring to the agreement on the project price in the finally signed contract, the people’s court shall support it.
However, if more than 20 years have elapsed since the date when the right was damaged, the people’s court shall not protect it.
The creditor mentioned in the preceding paragraph is the lien holder, and the movable property in his possession is the property under lien.
if the project funds have not been settled, how to determine the starting time of the limitation of action of the contractor? When the project funds have not been settled, it is often difficult to determine the exact time when the project funds should be paid, and it is difficult for the contractor to know the exact time when the rights have been infringed, so the limitation of action is generally not calculated.
Q3.
Where there are other provisions of the law, such provisions shall prevail.
if the construction contract is deemed invalid, can the contractor claim the project payment from the employer? sure.
The limitation period shall be calculated from the date when the obligee knew or should have known that the right was damaged and the obligor.
The price of the construction project shall be paid in priority from the price converted or auctioned by the project.
Under special circumstances, the people’s court may decide to extend the time limit upon the application of the obligee.
Article 24 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): several construction contracts of construction projects concluded by the parties with respect to the same construction project are invalid, but the quality of the construction project is qualified.
Where there are other provisions of the law, such provisions shall prevail.
Link to article: Article 157 of the Civil Code: after a civil legal act is invalid, revoked or determined not to be effective, the property obtained by the actor due to the act shall be returned; If it is impossible or unnecessary to return, it shall be compensated at a discount.
However, if there is evidence that one party knows or should have refused to settle, it shall be calculated from the date when its informed rights have been damaged.
can the contractor refuse to deliver the construction project on the ground that the employer has not paid off the project payment? No.
The employer shall compensate the Contractor by referring to the agreed discount of the actually performed contract on the project price.
Article 793 of the civil code, the construction contract of a construction project is invalid, but if the construction project passes the acceptance, the contractor may be compensated by referring to the agreement on the project price in the contract.
If the contract letting party is at fault for the losses caused by the unqualified construction project, it shall bear corresponding liabilities.
Link to article of law: Article 447 of the Civil Code: if the debtor fails to perform its due debts, the creditor may retain the debtor’s movable property that has been legally in possession, and has the right to receive priority payment on the movable property.
If the construction contract of a 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 costs; （2） If the experience of the repaired construction project is unqualified, the Contractor shall not have the right to request for compensation by referring to the agreed discount of the project price in the contract.
Q2.
The Contractor shall not exercise the lien on the real property, but shall have the priority to be paid for the construction project price.
Q1.
In case of any of the following circumstances in article 195 of the civil code, the limitation of action shall be interrupted, and the limitation of action shall be recalculated from the time of interruption and the conclusion of relevant procedures: (1) the obligee makes a request for performance to the obligor; （2） The obligor agrees to perform its obligations; （3） The obligee brings a lawsuit or applies for arbitration; （4） Other circumstances that have the same effect as bringing a lawsuit or applying for arbitration.
If the construction project is used by the employer without the completion acceptance, the date of transfer of possession of the construction project shall be the date of completion..
Q4.
If one party requests to compensate the Contractor by referring to the agreed discount of the actually performed contract on the project price, the people’s court shall support it.
Where there are other provisions of the law, such provisions shall prevail.
However, it shall be excluded if the new evidence can prove that the claim right of the other party has expired the limitation period.
Article 807 of the civil code, if the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable time.
Link to article of the law: Article 188 of the civil code of the people’s Republic of China has a three-year limitation of action for requesting the people’s court to protect civil rights.
If a party fails to raise a defense against the limitation of action in accordance with the provisions of the preceding paragraph and applies for retrial or raises a defense against retrial on the ground that the limitation of action has expired, the people’s court shall not support it.
The party at fault shall compensate the other party for the losses incurred thereby; If both parties are at fault, they shall bear their respective responsibilities.
