If there is such an agreement, whether it means that the settlement of the project payment “should be based on the administrative audit conclusion” is actually not the case.
With regard to “audit clauses”, the Regulations on Guaranteeing Payment of Small and Medium sized Enterprises (administrative regulations) issued by the State Council clearly stipulates that “government agencies, public institutions and large state-owned enterprises shall not compulsorily require the audit results of audit institutions as the basis for settlement, unless otherwise agreed in the contract or otherwise stipulated by laws and administrative regulations.” According to this provision, if Party A and Party B agree in the contract that the project settlement is based on the government audit conclusion, which is effective in principle, Party A can decide to pay less or even not to pay the project fund according to the audit conclusion.
After the dispute between the two parties over the project payment, the Supreme People’s Court made a judgment that no matter whether the project involved in the case is subject to the audit of the national audit institution according to law, the audit conclusion of the national audit institution can not be considered, It can become the natural basis for determining the settlement between the two parties in this case, so Party A’s claim to take the government financial audit as the basis for settlement is not accepted.
Concluding remarks: Jianyong Dianjing is bound to have an administrative supervision act of financial evaluation audit for state-owned investment projects.
In the (2012) MTZ No.
Difficult civil and commercial cases under the jurisdiction of the intermediate people’s courts and the courts under their jurisdiction in 18 cities of Henan Province.
However, it should be noted that such clauses must clearly contain the words “government audit”, and even specify the specific audit department in the contract as the case may be.
Whether the results of the government’s approval procedure can be used as the basis for settlement of the project funds depends on the attitude and intention of both parties in the actual performance.
We promise to keep confidential the difficult cases collected.
Hebei Higher People’s Court, the Supreme Court: the priority of project price compensation is superior to mortgage rights, monetary claims and other rights, but inferior to the survival rights of commercial housing consumers.
Finally, both parties appealed to the court for a large dispute over the total project price.
After hearing, the Supreme People’s Court held that: from the background of the project in this case, the main factor of government intervention is that the disputed project is a government invested project.
Because the term “audit” is often used in practice with two meanings, one is “administrative audit”, that is, “audit” in this paper; The other refers to the audit conducted by a third-party intermediary jointly entrusted by the Employer or the Employer and the Contractor, which is not “audit” in the sense of the Audit Law.
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Unclear agreement can not be regarded as an audit clause.
Jingcheng lawyers are now soliciting the following difficult and complicated civil and commercial cases nationwide.
The determination and payment of the project price involve the civil legal relationship between the two parties to the contract, and should be subject to the intention of both parties.
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205 case, the construction contract agreed that “the final settlement price shall be subject to the owner’s audit”.
Many times, when Party B signs a contract with Party A, when transferring from the Jianyong Project Payment Center, it will agree on similar terms such as “must be audited”, “subject to the owner’s audit”, and “the contractor must cooperate with the audit”.
However, administrative supervision is the internal process of government departments and institutions, and the settlement of project funds is a civil act between the construction unit and the construction unit, which cannot be confused.
However, if both parties are willing to settle the project funds by administrative supervision such as “financial evaluation audit”, they should also comply with their wishes.
Henan Provincial Court: unifying the thinking of construction project case adjudication, The Supreme Court shall be strictly prevented from different judgments in the same case: 11 Supreme Laws on the fixed price judgment of construction project contract: the Employer shall not oppose the main obligation to pay project funds by issuing invoices, providing completion data and other ancillary obligations | 4 Supreme Court judgments on construction project claims+practice guidance Jingcheng legal person solicits difficult and complicated civil and commercial cases nationwide, but only the best and the only one, and pushes each other sincerely.
For another example, in the (2016) Supreme Famin Shen No.
In practice, it depends not only on the specific contract terms, It also depends on the settlement and audit after the completion of the project.
For the cases that meet the requirements, we will rely on the collective wisdom of the Jingcheng Resumption Meeting to conduct in-depth and detailed research and argumentation on the cases, and provide you with the most professional problem solutions and legal risk prevention suggestions.
Civil and commercial cases of the first, second and retrial of Henan Higher People’s Court and the Fourth Circuit Court of the Supreme Law.
Therefore, in order to protect its rights and interests, Party B should have a sense of precaution when signing the contract and refuse to agree on such terms.
Only the words “audit” should not be presumed to be government audit clauses.
More Wonderful Supreme Court: Does the construction contractor sue twice for the same project price and amount? Supreme law: If the appraisal report does not objectively and comprehensively reflect the actual situation of the project, it should not be used as the basis for determining the project funds.
1198 case, there was an agreement that “administrative audit is required” in the construction contract, but it did not explicitly mention that “the audit conclusion is the basis for settlement”.
