Case introduction 1.
Since the commencement date stated in the commencement report is March 3, 2015, the commencement date of the project shall be subject to this.
Guoan Company applied to the Supreme Court for retrial.
Guoan Company defends that the construction permit is the certificate of construction, and the construction period is calculated according to the date of the construction permit.
According to the construction contract, “the commencement time shall be subject to the commencement order issued by the Employer and the Engineer”, which is the true meaning of both parties, shall be legal and effective and binding on both parties.
How to determine the commencement date is an important factual issue to determine whether there is a delay in the construction period.
3、 The transportation company claimed the liquidated damages for the construction period based on the breach of the construction period of Guoan Company.
The construction permit is a certificate with administrative effect issued by the administrative department.
Which date is the commencement date? The Supreme Court and the Shandong High Court held that the commencement date is subject to the commencement date in the commencement report.
Reading prompt: The issued commencement order specifies the commencement date permitted by the Employer.
In January 2015, the Employer’s Transportation Company signed the Construction Contract for Construction Project with the Contractor Guoan Company, agreeing that the scope of work shall be subject to the construction drawings, and the commencement time shall be subject to the commencement order issued by the Employer and the Engineer.
We summarized the practical points of this case as follows for practical reference.
In fact, the completion acceptance of the project was completed in August 2017.
Changes in laws and judicial interpretations will also lead to changes in judicial rules.
In case of any dispute, how should the commencement date be determined and when should the construction period be calculated? This paper reveals the rules of adjudication in similar cases through typical cases of the Supreme Court.
If the contractor defends that the permitted commencement date specified in the construction permit is the actual commencement date, it will not be supported.
Guoan Company only disputed the allocation of responsibility for the delay of the construction period, and did not apply for a retrial of the fact of the delay of the construction period.
Legal analysis The focus of the dispute in this case is that the commencement date of the commencement report is inconsistent with the construction permit.
The core reasons are as follows: 1.
Supreme Court: Which should be used to determine the commencement date between the notice to commence and the construction permit? Author | Li Shu, Tang Qinglin, Li Xiaoyu, Beijing Yunting Law Firm * Editor’s note: Since the implementation of the Civil Code in 2021, the Supreme People’s Court has issued the Judicial Interpretation of Construction Engineering (I), which is specifically aimed at many new, frequent and important legal issues in the field of construction engineering.
The authors of this book series are all professional lawyers in the front line of Beijing Yunting Law Firm, with profound theoretical foundation and rich practical experience.
Compared with other documents such as the construction contract and the completion acceptance report, it has higher evidentiary power.
Although it can usually reflect the actual commencement date, it should be determined according to the provisions of laws and judicial interpretations in judging the commencement date, and the commencement date stated in the construction permit cannot be used as the actual commencement date of the project.
2、 The General Transportation Company issued a commencement report, stating that Guoan Company should start construction on March 3, 2015.
Although the time for the project to obtain the construction permit is later than the commencement date of the commencement report, it does not affect the determination of the commencement date.
After the commencement report issued by the transportation company, the State Security Company shall carry out on-site construction according to the instructions of the commencement report.
The title selection and writing style of this book series are based on the actual case analysis, trying to find the most direct solution for the difficult and complex legal problems often encountered in practice from the practical needs.
The commencement date is subject to the commencement date specified in the commencement notice.
The construction permit is the legal certificate for the construction unit to carry out the project construction, which specifies the permitted commencement date.
It was deemed that it had no objection to the fact of the delay of the construction period, so it rejected its retrial application.
5、 The Supreme Court held that the project involved in the case was commenced on March 3, 2015 and completed on November 13, 2017, with a total delay of 385 days.
At the same time, a large number of cases have been handled, and the experience of handling cases has also been summarized.
Summary of practical experience: The professional lawyer teams of Tang Qinglin and Li Shu of Beijing Yunting Law Firm have handled and analyzed a large number of legal issues involved in this article, and have rich practical experience.
2、 The construction permit is not the only evidence to determine the commencement date.
There is no project overdue, and it does not assume responsibility.
However, sometimes both the Employer and the Contractor enter the site for construction in advance without obtaining a permit in order to catch up with the construction period.
First, for the Employer, the notice to start issued by the Employer or the Supervisor is the direct evidence to determine the commencement date.
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In fact, on June 2, 2015, the General Transportation Company obtained the planning permit for the project, which stated that the permitted commencement date was August 7, 2015.
To this end, we have sorted out the typical cases and adjudication rules that have occurred in recent years, combined with our practice in handling a large number of similar cases, summed up the corresponding experience, and formed the monograph “Legal Practice of Construction Projects: Litigation Risk and Compliance Response”, which will be published in China Legal Publishing House, and we will summarize some of the articles into a series and push them.
The construction period is 600 days, and must be delivered before October 15, 2016.
The determination of the commencement date based on the commencement report is the consensus of both parties in the construction contract, and the commencement date should be determined based on this.
Although the provisions of laws and judicial interpretations are relatively clear, there are great disputes between the Employer and the Contractor on the criteria for judging the commencement date.
Don’t forget the past, the teacher of the future.
4、 Shandong High Court and Rizhao Intermediate Court believe that how to determine the commencement date is the focus of controversy in this case.
Taking this case as an example, the following practical experience is summarized from the perspective of both parties.
The reason is that the construction period is calculated from the date of the commencement report, and Guoan Company has a breach of the construction period.
The gist of the judgment is that if the contractor enters the site for construction according to the notice to start issued by the Employer, and there is no construction site that does not meet the construction conditions, the commencement date specified in the notice to start issued by the Employer shall be the actual commencement date.
