The first paragraph of article 793 of the Civil Code stipulates that 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, that is, the rules for compensation for invalid discount of the construction contract of a construction project, It 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 contracts of construction projects.
According to this idea, when considering whether it is reasonable to take the contract price as the discount compensation standard, the essence is to evaluate the priority of respecting the interests expressed by the parties and the interests protected by the mandatory provisions.
At present, the judicial practice has made a positive response to the discount compensation method of “reference contract”.
For example, in the civil judgment of second instance (2017) supreme law Minzhong No.
When the project quality is qualified, because the construction laws and regulations stipulate the sanctions in the administrative law after undermining the order of the construction market, it is not inappropriate to give priority to the interests expressed by the parties, and it will not make the parties have no fear or encourage illegal acts.
From the perspective of legislative intent and judicial practice, The price agreed by reference to the contract is the main discount compensation method after the construction contract is invalid, and there shall be no dispute.
On the one hand, the quota is issued by local construction competent departments, which has considerable credibility; On the other hand, the quota is determined by the local construction competent departments according to the average construction cost in the local construction market, reflecting the average market price during this period.
The first step is to calculate the quantity of labor, materials and machinery required for the sub items item by item according to the sub items specified in the quota, and apply the quota unit price (or unit valuation table) to determine the direct project cost; The second step is to determine indirect costs, indirect costs, profits and taxes according to the specified charging standards; The third step is to summarize the direct engineering cost, indirect cost, profit and tax to determine the construction and installation project cost.
Therefore, the construction contract of construction project is not only adjusted by civil law, but also regulated by public laws such as construction law, bidding law and so on.
It is precisely because these public laws limit the scope of party autonomy of both parties to the construction contract and conflict with the parties’ private law rights and interests, resulting in repeated prohibition of illegal sites in the construction market.
For a whole building, there is almost no similar thing in the market that can refer to and directly determine the market price.
At present, in practice, the following three methods are usually adopted for discount compensation of construction projects: / / 01 with reference to the price discount compensation agreed in the contract, paragraph 1 of article 793 of the civil code determines that after the construction contract is invalid at the legal level for the first time, the discount compensation can be made with reference to the contract price.
From the perspective of comparison of legal interests, it is reasonable to support the discount compensation with reference to the price agreed in the contract for the invalid construction contract in violation of the mandatory provisions of laws and administrative regulations.
quota pricing method) issued by the local construction administrative department for discount compensation.
From the perspective of construction contract, the interests protected by mandatory provisions are mainly the order of construction market and the quality and safety of construction projects.
Therefore, the subject matter of construction contract of construction project is different from those in the market and has specific characteristics of the subject matter.
In fact, for the construction contract, it is inevitable to take the price agreed in the contract as the standard of discount compensation when it is invalid.
There are two kinds of norms to be referred to in the calculation process: one is the construction quota for dividing the divisional and subdivisional works into the quantity of labor, materials and machinery of the foundation, and the other is the unit price quota of basic labor, materials and machinery..
518, The Supreme People’s court held that “in this case, although the contract involved in the case was found invalid due to violation of legal provisions, the construction contract of construction project is the true expression of intention of both parties, has been actually performed, and the project involved in the case has been put into use after the overall completion acceptance, so the calculation of project price with reference to the contract is in line with the actual situation of this case.” According to paragraph 2 of article 511 of the civil code, “if the price or remuneration is unclear, it shall be performed according to the market price at the place of performance at the time of conclusion of the contract; if the government fixed price or government guided price should be implemented according to law, it shall be performed according to the provisions.” Paragraph 2 of Article 16 of the judicial interpretation of construction contract of construction project (I) stipulates: “If the quantity or quality standard of the construction project changes due to the design change, and the parties cannot reach an agreement on the price of this part of the project, the project price may be settled by referring to the pricing method or pricing standard issued by the local construction administrative department at the time of signing the construction contract.” After the construction contract is invalid, it is reasonable to use the pricing method or pricing standard (i.e.
The so-called quota pricing method can be divided into three steps.
Professional · efficient · integrity —- —- —- —- —- —- —- —- —- professional · efficient · honest engineering construction is related to social and public interests.
The value of property is generally determined according to its market price, but for construction projects, it is not easy to determine the market price.
The construction contract of construction project is a contract formulated by the employer and the contractor to complete specific construction tasks of construction project and clarify the relationship of mutual rights and obligations.
From the perspective of interest jurists, legal norms are the choice and evaluation of legislators after weighing the conflict of interest.
In a large number of construction contract dispute cases, the contract involved is considered invalid by the court.
The employer agrees on the special requirements such as the shape, function and quantity of construction project in the contract.
