The employer’s failure to obtain the construction land use certificate or the construction permit of the construction project shall not affect the validity of the construction contract of the construction project.
13、 If the construction contract of the construction project is invalid, but the completion acceptance of the project is qualified, who has the right to request to determine the project price with reference to the contract? The construction contract of the construction project is invalid, but the completion acceptance of the project is qualified.
11、 Who has the right to sign and confirm relevant materials related to quantities and prices during construction? We should strictly grasp the visa and confirmation of relevant materials in the process of project construction.
In order to correctly try such cases, the first civil trial court of a high court has made in-depth research and widely solicited opinions.
3、 How to determine the validity of the terms agreed by the parties on the valuation method of the project price? Although the determination method of the project price agreed in the construction contract of the construction project is inconsistent with the valuation basis of the construction project, but does not violate the mandatory provisions of laws and administrative regulations, the agreement shall be deemed to be valid.
In recent years, with the rapid development of economy and society, construction contract disputes of construction projects occur frequently, and new situations and problems emerge one after another.
If there is no commencement notice or commencement report, it shall be determined by the actual commencement time.
10、 What evidence can be used as the basis for the settlement of quantities and prices? The supplementary agreement, meeting minutes, project contact list, project change order, project reconciliation visa and other correspondence, records and other written evidence formed by both parties in the construction process of the construction project can be used as the basis for calculating the quantities and identifying the project price.
If the commencement conditions are still not met after the notice to proceed or the commencement report is issued, it shall be determined by the time when the commencement conditions are achieved.
However, if the quality of the foundation works and the main structure of the project is unqualified due to the Contractor’s construction, the employer may still refuse to pay or request to delay the payment of the project price.
7、 If the employer has signed to confirm that the acceptance is qualified, can he raise a defense against the quality problem and claim for delay or non payment of the project price? If the employer has organized the acceptance and signed on the relevant documents to confirm that the acceptance is qualified, and then refuses to pay or requests to delay the payment of the project price on the ground that the project quality is defective, this claim cannot be established.
12、 Can the quantities and prices of the lump sum contract be adjusted? The construction contract of the construction project adopts the fixed total price lump sum method.
1、 How to identify internal contract? How to determine its effectiveness? If the contractor of the construction contract of a construction project signs a contract with its subordinate branches or registered employees, contracts all or part of the project to its subordinate branches or employees for construction, and provides support in terms of capital, technology, equipment, manpower, etc., it can be recognized as an internal contract of the enterprise; If a party claims that the internal contract is invalid on the ground that the contractor of the internal contract has no construction qualification, it will not be supported.
If the parties require adjustment based on the increase or decrease of the actual quantities, if there is an agreement, it shall be handled as agreed.
If there is no agreement and the lump sum scope is clear, the project price can be adjusted accordingly; If the scope of lump sum contract is unclear, the party claiming adjustment shall bear the burden of proof.
If there is no explicit authorization, the visa and confirmation of the legal representative, project manager and on-site person in charge have legal effect; The visa and confirmation of other personnel have no legal effect on the employer, unless the contractor proves that the personnel have corresponding authority.
6、 How to determine the extension of construction period? If the employer claims that the construction period cannot be postponed only because the Contractor fails to apply for the postponement of the construction period within the specified time, the claim cannot be established.
However, if the contract clearly stipulates not to apply for the extension of the construction period within the specified time, it shall be deemed that the construction period is not extended, and the contract shall be followed.
9、 Is the adversarial claim raised by the employer on the ground of project quality a defense or a counterclaim? If the contractor appeals for payment of the project price, and the employer requests to reduce the project price on the ground that the project quality does not meet the contract or the national mandatory quality standards, it shall be treated as a defense; If the employer requests the contractor to compensate for the losses, it shall be treated as a counterclaim.
5、 How to determine the commencement time? The commencement time of the construction contract of the construction project is based on the commencement notice or commencement report.
Except for the legal representative and the personnel expressly authorized by the agreement, the visas and confirmation of the quantities and prices made by other personnel have no legal effect.
If the construction project has not been completed and accepted, and the employer has not used it in advance without authorization, and the employer raises an objection to the project quality and provides preliminary evidence, the appraisal procedure can be started.
2、 How to determine the validity of the construction contract of the construction project signed without obtaining the “four certificates”? If the employer fails to obtain the construction land planning permit or the construction project planning permit and signs the construction contract with the contractor, the contract shall be deemed invalid; However, those who have obtained the construction land planning permit and the construction project planning permit before the end of the court debate of the first instance or have been verified by the competent department for completion can be recognized as valid.
According to the spirit of Article 2 of the interpretation of the Supreme People’s Court on Several Issues concerning the application of law in the trial of disputes over the construction contract of the construction project, the contractor or the employer can request to determine the project price with reference to the contract..
4、 How to determine the validity of the terms that the warranty period agreed by the parties is lower than the minimum warranty period stipulated by law? If the warranty period of the project under normal use conditions agreed in the construction contract of the construction project is lower than the minimum period stipulated by the state and the province, the agreement shall be deemed invalid.
8、 How to grasp the start of the project quality appraisal procedure? We should strictly grasp the start of the project quality appraisal procedure.
Now it answers some prominent questions in the trial of such cases for reference when handling cases.
