Therefore, There is a dispute over which one should prevail in the settlement of project price.
If the administrative audit conclusion or financial review opinion is directly accepted by the construction unit, it is obviously against the principle of autonomy of will, and there is a suspicion of forced transaction.
In this regard, the Supreme People’s Court (2012) MTZ No.
The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization.
205 held that (1) according to the provisions of the audit law, the audit of the project construction unit by the national audit institution is an act of administrative supervision, and the legal relationship between the auditor and the auditee due to the national audit is different from the civil legal relationship between the parties in this case.
How should the construction unit settle the project funds if it delays or fails to audit? 4.
The audit conclusions made by audit institutions should be specific administrative acts, and their legal nature is administrative legal relations.
As it happens, the author recently encountered such cases.
Its purpose is to supervise whether the financial revenues and expenditures of construction units are true.
When writing the case analysis report, the author combed and summarized whether the audit conclusion can be used as the relevant issues of project price settlement.
The construction contract of construction project is a civil legal relationship between the construction unit and the construction unit.
The audit conclusion or financial review opinion shall not affect the existence of the settlement agreement..
Raising problems for national construction projects or financial capital investment projects, when settling the project funds, the employer often refuses to settle with the contractor on the ground that the audit conclusion of the audit department has not been completed.
The settlement and confirmation by both parties shall be deemed as a change to the settlement terms agreed in the original contract, which does not violate the mandatory provisions of laws and regulations and is legally binding on both parties.
Sometimes, even if the settlement has been made, the audit conclusion issued by the audit department is inconsistent with the settlement amount of both parties, and the audit price is mostly lower than the amount determined in the settlement agreement of both parties.
[reference case: Supreme People’s Court (2007) min Yi Zhong Zi No.
Now I share it as follows.
If the agreement on the audit institution is not clear in the contract, how to settle the project price? Legal analysis of the above disputes 01 if the project price agreed in the contract is inconsistent with the audit conclusion or financial review opinion of the audit department, which one shall prevail? To solve this problem, we must first understand the nature of the audit conclusion or financial review opinion of the audit department? According to Article 3 of the audit law, “audit institutions shall conduct audit supervision in accordance with the functions, powers and procedures prescribed by law.” Article 22 stipulates: “audit institutions shall exercise audit supervision over the budget implementation and final accounts of government investment and construction projects mainly invested by the government.” It can be seen from the above articles that the audit of government investment and construction projects mainly invested by the government is an activity for audit institutions to exercise state power to manage administrative affairs.
In practice, it is found through case retrieval that the main types of disputes over whether the audit conclusion or financial review opinion is used as the basis for project price settlement are: 1.
The author also holds this view, but in addition, there is another reason that, according to Article 77 of the contract law, the parties can change the contract by consensus.
If the project price agreed in the contract is inconsistent with the audit conclusion or financial review opinion of the audit department, which one shall prevail? 2.
If the construction project contract is invalid, can the terms agreed in the contract that take the audit conclusion as the basis for settlement bind both parties? 5.
Therefore, in a civil contract, the parties’ agreement on accepting administrative audit as the basis for determining the civil legal relationship should be specific and clear, rather than interpreting the presumption.
Therefore, the true meaning of the parties shall be fully respected in this case, and the settlement agreement between both parties shall be taken as the final settlement basis.
(2) Under the condition that both parties have confirmed the project settlement price through the settlement agreement and have basically fulfilled it, the audit report made by the national audit institution shall not affect the effectiveness of the settlement agreement between both parties.
Which one shall prevail if the audit conclusion or financial review opinion is inconsistent with the settlement agreement reached by both parties? 3.
It is considered that the parties have agreed to accept the intervention of the audit act of the state organ in the civil legal relationship when the contract is signed.
Can the consequences arising from the administrative legal relationship be directly accepted by the construction unit? The answer I think is yes or no.
The law also fully respects the agreement between the parties.
Therefore, in case of any inconsistency between the contract and the audit conclusion, unless the contract clearly stipulates that the audit conclusion or financial review opinion shall be the basis for both parties to settle the project funds, the contract shall prevail.
The reason is that Article 8 of the contract law stipulates that “a contract established according to law shall have legal binding force on the parties.
The object of supervision of audit institutions is the construction unit rather than the construction unit.
81] 02 which one shall prevail in case of inconsistency between the audit conclusion or financial review opinion and the settlement agreement reached by both parties? In this case, the contract originally agreed to take the audit conclusion or financial review opinion as the basis for settlement, and then both parties settled the accounts by themselves and reached an agreement or jointly entrusted an appraisal institution to conduct appraisal, while the audit conclusion or financial review opinion was inconsistent with the settlement agreement and appraisal conclusion reached, resulting in disputes.
It is an administrative supervision power.
A contract established according to law shall be protected by law.” In addition, according to the first paragraph of Article 16 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, if the parties have agreed on the pricing standard or method of construction projects, the project price shall be settled in accordance with the agreement The core of the contract lies in the autonomy of will.
