The non-uniform standards of law application have resulted in prominent contradictions between different judgments in similar cases.
Therefore, this paper puts forward the ways to solve the three difficult problems in the judicial application of paragraph 1 of article 793 of the Civil Code: first, how to understand the scope of “referring to the agreement on project price in the contract”; Second, how to deal with the “management fee”; Third, how to deal with damage compensation.
The work of legislation should turn to the theory of interpretation.
1218 case holds that “the terms agreed on the payment node between the two parties do not belong to the applicable contract agreement.” [6] For another example, for the understanding of the agreement on “management fee” (2016) supreme law min Shen No.
Summary: paragraph 1 of article 793 of the civil code inherits and improves the provisions of Article 2 of the judicial interpretation of construction projects.
Key words: claim for restitution of unjust enrichment due to invalid discount compensation of construction contract of construction project I.
What remains unchanged is that the trial rules of “referring to the contract agreement” to determine the project price are consistent, that is, the introduction of the civil code has not eliminated the disputes in judicial practice, how to understand “referring to the contract agreement on the project price” is still uncertain, and the connotation and extension of relevant concepts have not reached a unified position.
1535 case, the management fee clause belongs to the reference scope of the contract, and the party who collects the management fee can claim it.
1192 case holds that “the payment time of discount compensation should also be based on the project payment time agreed in the contract”, while [5] (2019) supreme law minshen No.
By analyzing the nature of the Contractor’s rights, this paper clarifies the misunderstanding of “claim right in contract”, and makes it clear that the nature of the right of discount compensation is “claim right for return of unjust enrichment”, and then deduces three basic principles for understanding discount compensation: at the standard level, subjective value is the main, while objective value is the auxiliary; On the boundary of the scope, the subjective value is the upper limit for all compensation; On the exception rule, the system of payment for illegal reasons is applicable.
[4] In contrast, the changes in paragraph 1 of article 793 of the civil code are: first, the right enjoyed by the contractor is discount compensation; second, the “agreement on project price” is a qualifier of the reference scope of the contract.
[1] Due to the supervision and management of construction activities by law and judicial interpretation and the maintenance of construction market order, most of the chaos has caused the strongest negative evaluation of the effectiveness of the contract.
[2] The difficult problem that the people’s court must respond to is how to determine the project price when the construction contract of the construction project is invalid.
For example, whether the “payment time” is within the scope of reference, (2020) supreme law Minzhong No.
“After a code comes into force, it should be properly applied as far as possible from the theory of interpretation.
Chaos in the field of construction project emerges in endlessly and continues despite repeated prohibitions, such as the construction project violates the mandatory provisions of the bidding law, the Contractor does not have the qualification of construction enterprise, and the employer has not obtained the planning license of construction project, etc.
[8] (2020) Supreme People’s court case No.
raising of problems.
14) (hereinafter referred to as the judicial interpretation of construction projects), which came into force on January 1, 2005, stipulates that if the construction contract of construction projects is invalid, the contractor has the right to “request to pay the project price with reference to the contract”.
In entity, the rules for project pricing by reference to the contract in the invalid construction contract of construction project can be retained.
[7] (2020) Supreme People’s court case No.
According to statistics, in 2020, of the 126 disputes over construction contracts in the second instance of the Supreme People’s court, 48 were found to be invalid, accounting for 38.1%.
According to the reasons for the invalidity of the contract: there are 24 violations of the mandatory provisions of the bidding law, 20 violations of the qualification restrictions of the construction industry (including borrowing qualification, subcontracting and illegal subcontracting), and 4 violations of the requirements of the license, and the litigation claims of all cases are related to the project price.
It no longer follows the old expression and is revised to “compensate the Contractor by referring to the agreed discount on the project price in the contract”.
[9] It can be seen that the highly concise and abstract legislative language of “referring to the agreed discount compensation of project price in the contract” stipulated in paragraph 1 of article 793 of the civil code endows judges with greater discretion.
242 held that the contract was invalid, and the party receiving the management fee fulfilled its management obligations, which belongs to the scope of discount compensation.
[3] The first paragraph of article 793 of the civil code of the people’s Republic of China (hereinafter referred to as the civil code) which came into force on January 1, 2021 has been significantly revised.
In terms of expression, the “payment of project price by reference to the contract” is amended to “compensation to the Contractor by reference to the agreed discount of project price in the contract”.
In this regard, Article 2 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 (fashi [2004] No.
The actions of judges have become the most important hub for the combination of civil code and social life.” [10] In view of this, how to correctly understand and apply paragraph 1 of article 793 of the civil code in vivid judicial cases needs more comprehensive and detailed theoretical deduction and case study..
However, the differences of understanding on “referring to the agreement on project price in the contract” in judicial practice have not been eliminated, and the contradiction of different judgments in similar cases still exists.
7019 holds that it is not within the scope of reference and the party charging the management fee cannot claim.
