udgment rules of the Supreme People's Court on the cases of construction projects
Construction contract is invalid, but the acceptance of qualified for settlement
The Contractor shall not gain more benefit than the contract is in effect
The referee essence: in view of the special nature of the construction project, the contract invalid occurs in the judicial practice, but the contractor labor and construction materials have been materialized to building projects, as long as the passescompletion inspection, according to the January 1, 2005 implementation of the "Regulations of the Supreme People's Court on the trial of the construction contract dispute case engineering applicable legal interpretation" of article second, "the construction contract is invalid, but the construction passescompletion inspection, the Contractor's request according to the contract agreed to pay the price of the project, shall support the" provisions of the employer and the Contractor shall refer to the contract computing projects.
Rules of adjudication: the construction contract of the construction project is invalid, but if the construction project has been checked and accepted by the project, the construction cost shall be calculated according to the contract. But the contractor should not gain more benefit than the contract is in effect.
I believe most people are responsible for the operation and know the construction contract by the court to void but the construction project after final acceptance, the contractor may refer to the original contract price of the project to settle this rule, but you probably don't know the contractor may require settlement but not more effective than the interests of the contract the Supreme People's court in the trial of a construction project the judicial rules. That is to say, when the construction contract is invalid, can only be settled in accordance with the terms of the contract was signed, and the contractor cannot claim in accordance with the cost quota or apply to the judicial cost of settlement payments to market price information after the incident. Following the above rules, the Justice Department will share with you an actual case of the Supreme People's court.
[2010] real case, Momou anchored a company (a construction qualification) and in the name of a company and a Real Estate Company in Dongguan (hereinafter referred to as company B) signed the "Dalang Nagafu Business Plaza construction contract" and other construction contract contract, determine the scope and the fixed price of 54 million 800 thousand yuan, the existing quota as cost calculation of reference, in addition to the provisions of the contract can be adjusted to the circumstances, any change in market prices will not become the reason for the price adjustment (project cost unless otherwise stipulated in the contract are to fall 16.5%). The contract, if a company the project subcontracted to other units and individuals, company B is found, immediately terminate the contract, and the confiscation of deposit, and by a company to bear all the losses incurred from company B. After that, both in the performance of the contract process in a dispute. Momou and company B company to court, asked to pay the remaining B projects and downtime caused additional losses.
First instance litigation, due to the parties involved in the amount of the project failed to reach an agreement, Mo applied for the court of first instance commissioned a qualified cost consulting company in Dongguan conducted a judicial cost appraisal. The company issued two copies of the project cost appraisal according to the court, one is according to the parties agreed in the contract pricing method for pricing, the finished project including tax cost of 52989157.84 yuan, the other is a category according to the actual amount of work done and construction, according to material quota and differential settlement, the tax the cost is 69066293.11 yuan. The difference between the two is 16077135.30 yuan. When the construction cost certificate is issued, the court of first instance shall hold a cross examination, and the parties concerned shall have no objection to the amount of work determined by the appraisal institution. However, the contract for the settlement of the project cost appraisal contract shall not be verified, and the actual amount of works shall be determined according to the result of the quota and the material difference, while the second party's opinion of the quality of the project is just the opposite. In the course of the trial, the court of first instance consolidated the merits of the case and the matters needed for judgment to be summed up as follows: first, the validity of the contract in the case; and two, how to determine the project money in the case...... Wait until five. Finally, after the court held that, first, the case led to the contract invalid root cause is that Mo and a company. A company knowingly without construction qualification and still make its construction project illegal, but still the implementation of the above behavior, therefore, should bear all the fault liability. Two, due to the fault of Mo and a company resulting in invalid contracts, it should not be more effective than the contract, but also more benefits. But because the project acceptance, it should be in accordance with the actual amount of work done on both sides of the contract settlement method to calculate project cost, project cost increase, decrease or change should also refer to the contract and the identification unit to calculate the usual practice......
Mo and a company refused to accept the verdict, appealed to the higher people's Court of Guangdong province. In the course of the trial, the high court found out the relevant facts in the same instance, and made a decision to reject the appeal and uphold the original judgment.
Mo and a company dissatisfied with the Guangdong Provincial Higher People's Court of second instance judgment, the Supreme People's Court of People's Republic of China to apply for retrial. The facts found by the Supreme Court are the same as those of the first instance and the second instance. And the case in the retrial of the dispute focused on 1, the original judgment for the validity of the contract after the determination of the responsibility is appropriate. 2, involved in the project should be how to calculate?. Including (1) the project should be in accordance with the contract settlement or just settlement; (2) the court of the "contract cost evaluation report" whether through cross examination; (3) the appraisal report identified for the project amount is wrong.
Finally, the Supreme Court's decision is as follows: 1
