Therefore, the invalidity of the contract means that the agreed contents have lost their effectiveness, and the liquidated damages are naturally difficult to produce contract binding force between the parties.
In combination with the provisions of the above judicial interpretation, the employer’s request to require the contractor to pay liquidated damages or compensate for the reasonable expenses of repair, rework and reconstruction on the ground that the project quality does not comply with the contract or legal provisions is an independent request, which shall be handled through counterclaim or another lawsuit.
The reason why counterclaim and defense need to be distinguished is that they have different effects on the parties.
Based on this particularity, the contract is invalid.
If the size of the loss cannot be determined, and one party requests to determine the size of the loss with reference to the quality standard, construction period, project price payment time, etc.
Whether as the maritime litigation agent of the parties, there is also a problem to pay attention to here – the choice of litigation methods for quality liquidated damages and counterclaim and defense.
When the contractor claims the project price through litigation, the employer often puts forward problems in the project quality, and then requests to reduce the price or compensate for violations There have been some disputes over whether the payment should be handled according to counterclaim or defense.
The special standards or requirements related to project quality shall be agreed by the parties in the special conditions of contract”.
There is no dispute, but the employer’s claim that the project quality does not comply with the contract The author would like to emphasize the importance of signing the construction contract, how to set and refine the quality terms of the construction project, how to identify the non-compliance of the construction project quality with the agreement, and how to bear the liability for breach of contract, whether in the civil code Or the rules set in the first judicial interpretation of construction engineering all highlight the problem of “agreement”, such as “quality does not meet the agreement” and “reference to the contract agreement”, which require the parties to pay attention to and refine the parts when signing the construction contract, which is of positive significance to the performance of the contract and the handling of contract disputes..
Moreover, article 5.1.1 of the general conditions of contract in the 2017 model text of construction contract stipulates: “the project quality standard must meet the requirements of the current national specifications and standards for project construction quality acceptance.
However, one problem is that the proportion of invalid construction contract of construction project is still high compared with other contracts.
Article 5.1.3 stipulates: “If the project quality fails to meet the standards agreed in the contract due to the contractor, the employer has the right to require the contractor to rework until the project quality meets the standards agreed in the contract, and the Contractor shall bear the increased expenses and / or delayed construction period”.
If it constitutes a counterclaim, it does not produce res judicata and can sue the court again for the facts of the defense; if it constitutes a counterclaim, the counterclaim plaintiff can apply for property preservation measures, but if it only raises a defense, it must face a future judgment Risk of unenforceability.
If a counterclaim is constituted, it needs to pay legal fees, but the defense does not have this requirement; if a counterclaim is constituted, the counterclaim plaintiff needs to provide various materials that meet the prosecution conditions, and the defense only needs to It is necessary to provide evidence to prove its factual claim; if it constitutes a counterclaim, it belongs to the judgment of the main text of the judgment and has res judicata and cannot be sued again.
However, in the field of Construction Engineering, the construction process of construction engineering is that the contractor combines labor and labor The process from the materialization of building materials to the construction project.
In the “special conditions of contract” of the model text The contractor can also specify the calculation method and amount of quality liquidated damages, which also constitutes the contract basis for the employer to claim liquidated damages.
agreed in the contract, the people’s court may The judgment shall be made by combining the fault degree of both parties and the causal relationship between fault and loss.
Therefore, the principle of return of invalid restoration can not be applied and can only be compensated at a discount.
According to the judicial interpretation of Construction Engineering (I) Article 6 provides that: “If the construction contract of a construction project is invalid and one party requests the other party to compensate for the loss, it shall bear the burden of proof on the other party’s fault, the size of the loss and the causal relationship between the fault and the loss.
Therefore, the quality penalty refers to the way in which the contractor pays a certain amount of money to the employer as the liability for breach of contract when the construction project quality does not meet the contract due to the contractor.
Therefore, it is necessary to consider that when the contract is invalid, the terms of quality liquidated damages are determined in the loss In the theory of contract invalidity, the invalidity of the contract is of course invalid, invalid from the beginning and determined invalid.
“This is the application of liability for breach of contract in construction contract dispute cases.
Of course, in the above forms of liability for breach of contract, there should also be liquidated damages.
The size of loss can be determined by referring to the way agreed in the contract, and” referring to the contract agreement “according to the viewpoint in the understanding and application of judicial interpretation of construction by the Supreme Court A restrictive understanding should be made, which is only limited to the agreement on the pricing standard in the contract.
Quality is the lifeline of construction project, so whether the quality is qualified or not is the key factor affecting how to deal with construction contract disputes.
If the overdue payment is caused after repair, rework or reconstruction, the constructor shall be liable for breach of contract.
Therefore, in view of the quality problems of construction projects, in addition to the general rules on liability for breach of contract, article 801 of the civil code specifically stipulates the way to bear the liability for breach of contract “if the quality of construction projects does not meet the agreement due to the reasons of construction workers” – free repair, rework and reconstruction.
To ensure that the construction quality meets the standards agreed in the contract is not only the main payment obligation of the contractor, but also the fundamental purpose of the employer to conclude the contract.
The property obtained by the employer is the Contractor’s construction project in form, but in fact it is the Contractor’s labor and construction materials invested in the project construction.
Article 12 of the first judicial interpretation of construction engineering stipulates: “if the construction project quality does not meet the agreement due to the Contractor’s reason, the contractor refuses to repair, rework or reconstruct, and the employer requests to reduce the project price, the people’s court shall support it”, Understanding and application of the Supreme Court’s judicial interpretation on Construction Engineering The point of view is: the tendency opinion is that the defendant’s claim to reduce the project payment is a defense and there is no need to file a counterclaim.
If the quality of the project undertaken by the Contractor fails to meet the standards agreed in the contract, the Contractor shall pay liquidated damages in accordance with the contract.
In the construction project contract, if the liquidated damages are agreed between the employer and the constructor, it shall be applied preferentially, so as to determine the responsibility of the employer or the constructor in case of unqualified construction project quality.
