Author: Chen Zhao Li, Jiangsu Yun law firm partner Cliff
Article 13 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Cases Concerning Construction Contract Disputes (Law [2004] No. 14) stipulates that “the construction project shall not be completed and accepted, and the contractor shall use it without authorization. If part of the quality does not conform to the agreement, it shall not be supported; however, the contractor shall bear civil liability for the quality of the foundation engineering and the main structure within the reasonable service life of the construction project."
The Interpretation and Application of the Judicial Interpretation of the Construction Contract for the Construction of the Supreme People's Court, edited by the First Chamber of the Civil Trial of the Supreme People's Court, interprets Article 13 as if the contractor has used the unexperienced construction project without authorization, and there are quality problems. Should be responsible for it. However, regardless of whether the construction project has been accepted or not, the contractor still has to bear the responsibility if the construction project has problems in the quality of the foundation engineering and the main structure during the reasonable service life. Therefore, the construction project has not been completed and accepted. After the contractor has used it without authorization, the contractor has not assumed the responsibility for the project quality warranty except for the civil liability of the foundation engineering and the main structural quality. It has once become the mainstream view of the judicial practice.
However, the above understanding and application are obviously biased, and it is unfair to the contractors, which has caused more and more legal people to reflect. The contractor’s unauthorized use of the construction project is regarded as completion acceptance, and the purpose is to prevent the contractor from delaying the completion acceptance, and to delay the completion settlement and pay the engineering price to damage the contractor’s interests, and the legal presumption of “considered” completion acceptance is sufficient For its legislative purposes, it is not necessary to waive the contractor’s warranty obligations. For example, the Shanghai court held the same view in the case of Shanghai Weiheng Waterproof and Insulation Engineering Co., Ltd. v. Yuekang Pharmaceutical Group Shanghai Pharmaceutical Co., Ltd. Construction Engineering Contract Dispute, and the contractor used the uncompleted acceptance project without authorization. At that time, it is deemed that the project has been completed and accepted, and the contractor shall bear the legal consequences after receiving the engineering experience in advance. The contractor may request the contractor to pay the project payment, and the contractor shall not defend against the failure to complete the acceptance. The contractor shall still be responsible for the foundation and main structure of the project within the life of the project. For the quality problems of other parts of the project, the contractor shall bear the warranty liability from the date of the use of the self-issued contractor in advance of the statutory or agreed warranty period. The case was published in the People's Court report on April 1, 2015, but it still failed to reverse the inherent thinking mode that the judicial practice community has long formed.
We have not been able to see the Supreme People's Court make a clear statement on this issue, but finally found that the Supreme People's Court held the same view in one of its recent cases. The Supreme People's Court made a dispute on the construction contract dispute between Qiqihar City Extraordinary Building Decoration Engineering Co., Ltd. and Tailai County Juyang Shopping Center Co., Ltd. and Tailai County Xinyu Real Estate Development Co., Ltd. on November 30, 2016. (2016) Supreme People's Republic of China No. 23 civil judgment held that “the company that is the contractor’s unexperienced and unauthorised use of the project should bear the legal consequences of the legal acceptance of the project, and the extraordinary company’s quality of the project The warranty obligation is in accordance with the contractual agreement and legal provisions of both parties.” “Juyang Company shall open the business after the completion of the project, and shall, according to the above-mentioned agreement, be recognized as having passed the test from the date of actual use, and the extraordinary company shall not Responsible for quality rework responsibility during construction or experience failure, only the warranty quality of the project involved in the warranty period and within the scope of warranty, bear the warranty responsibility."
It should be noted that, in view of the fact that the company’s counterclaims require the extraordinary company to bear the quality responsibility arising from the unqualified quality of its construction project, it is not to appeal to the extraordinary company to fulfill its warranty obligations and assume the warranty responsibility. The Supreme People’s Court rejected this. Its claim for this claim. It can be seen that it is of utmost importance to correctly clarify the rights and obligations of the parties and accurately define the parties' claims, facts and reasons!
We know that it is difficult for a single case to completely change the status quo. Before the Supreme People's Court clearly stated its attitude, the debate will continue. It is expected that the Supreme People's Court will abolish the provisions of Article 13 of the Judicial Interpretation No. 14 of 2004 [2004].
Attachment: Qiqihar City Extraordinary Building Decoration Engineering Co., Ltd. and Tailai County Juyang Shopping Center Co., Ltd., Tailai County Xinyu Real Estate Development Co., Ltd. construction project contract dispute appeal, application for civil judgment
Supreme People's Court
Civil Judgment
(2016) Supreme Court No. 23
Retrial applicant (first-instance plaintiff, counter-claimed defendant, second-instance appellant): Qiqihar City Extraordinary Building Decoration Engineering Co., Ltd. Address: No. 3, 1-2, Building 21, Yuying Community, Jianhua District, Qiqihar City, Heilongjiang Province.
Legal representative: Jin Jinbiao, the company manager.
Entrusted litigation agent: Li Zhonghua, lawyer of Heilongjiang Baishuo Law Firm.
Entrusted litigation agent: Jiang Xiaoguang, lawyer of Heilongjiang Hongnuo Law Firm.
Respondent (defendant in first instance, plaintiff in counterclaim, appellee in second instance): Tailai County Juyang Shopping Center Co., Ltd. Place of residence: No. 538, Jianshe Road, Tailai County, Qiqihar City, Heilongjiang Province.
Legal representative: Liu Yujie, general manager of the company.
Attorney attorney: Li Jiali, lawyer of Heilongjiang Hongping Law Firm.
The second-instance appellee (defendant in the first instance): Tailai County Xinyu Real Estate Development Co., Ltd. Address: Construction Street, Tailai County, Qiqihar City, Heilongjiang Province (for grain storage).
Legal representative: Liu Yujie, general manager of the company.
Attorney attorney: Li Jiali, lawyer of Heilongjiang Hongping Law Firm.
Re-appraisal applicant Qiqihar City Extraordinary Building Decoration Engineering Co., Ltd. (hereinafter referred to as the extraordinary company) and the respondent Tailai County Juyang Shopping Center Co., Ltd. (hereinafter referred to as Juyang Company), second-instance appellee Tailai County Xinyu Real Estate The development of a limited liability company (hereinafter referred to as Xinyu Company) construction project contract dispute, refused to accept the Heilongjiang Provincial Higher People's Court (2015) Hei Min Zhong Zi No. 48 civil judgment, applied for retrial. On December 18, 2015, the Court made a civil ruling on (2015) Min Shen Zi No. 3034 to review the case. The court was ruled by the chief judge of the Second Circuit Court, Dong Hua, as the presiding judge, and the trial judge Gao Yi and the trial judge Zhang Zhihong formed a collegiate bench. The assistant judge Miao Jia assisted in handling the case. The clerk Huang Tingting served as the court record and publicly heard the case. . The legal representative of the extraordinary company, Jin Jinbiao, the entrusted litigation agent Li Zhonghua, Jiang Xiaoguang, Ju Yang Company and Xinyu Company entrusted litigation agent Li Jiali to attend the lawsuit. The case has now been tried.
The extraordinary company applied for retrial, saying that Article 7 of the “Construction and Renovation Contract” signed by the two parties on June 14, 2012 should be allocated according to the construction progress. However, during the construction process, Juyang Company did not make the payment according to the contract, and the extraordinary company was responsible for the renovation. The project has been put into use after the renovation. The representative of Juyang Company signed a letter of approval on the settlement statement. According to the contract, the receipt of the materials by Juyang Company within five days is considered as settlement. Therefore, after the completion of the project, Juyang Company has voluntarily accepted and settled the settlement, and should pay the amount of the construction due. On the grounds that the funds were not returned, Juyang Company delayed the payment of the remaining construction funds until the lawsuit, and did not propose any other reasons for not paying the construction money. During the trial of the first instance, Juyang Company objected to the construction quality, and the time for quality appraisal exceeded the one-year warranty period agreed upon in the contract. In the case that the extraordinary company disagreed, the court of first instance adopted the application of Juyang Company to conduct quality appraisal and support for the project, which violated the contractual agreement and legal provisions of both parties. Article 6 of the "Construction and Renovation Contract" clearly stipulates that the project shall not have any use behavior after passing the test, otherwise it shall be deemed that the project has been accepted and accepted. Article 13 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Project Construction Contract Disputes (hereinafter referred to as the Judicial Interpretation of Construction Projects) clearly stipulates that the construction project has not been completed and accepted, and the contractor has used the part without authorization. If the quality does not conform to the agreement, it does not support it. Therefore, the request: 1. The Heilongjiang Qiqihar Intermediate People's Court (2013) Qi Minchu Zi No. 34 Civil Judgment and the Heilongjiang Provincial Higher People's Court (2015) Hei Min Zhong Zi No. 48 Civil Judgment; 2. The Judiciary Juhui Company pays extraordinary The construction cost of the company is 6,143,800 yuan, and the liquidated damages are paid at the daily interest rate of 0.1% until the payment of the project payment; 3. The first-instance, second-instance, retrial litigation costs and appraisal fees are borne by Juyang Company and Xinyu Company. As Xinyu Company is also the opposite party of the contract, it shall jointly bear the responsibility for paying the above-mentioned unpaid construction funds and liquidated damages with Juyang Company.
Juyang Company contends that the part of the extraordinary company retrial appeal that exceeds the first-instance petition should not be included in the scope of the case, and no reply is made. The defenses in the scope of the original trial appeal are as follows: 1. On the quality of the renovation project. 1. According to the appraisal opinion, the sub-items and sub-parts of the ceiling construction of the extraordinary company do not meet the quality standards stipulated by the relevant national standards. The quality of the actual project is unqualified and needs to be repaired according to the proposed repair plan. Losses due to quality problems account for one-third of the total cost, which is a major quality problem. Ceiling ceilings, gypsum board sheds, bathroom partitions, etc. are all subject to decoration and decoration. The quality problems that arise are irrelevant to whether they are used or not. Even if it is not experienced, the completed decoration and decoration works should conform to the quality standards set by the state, and should meet the standards agreed by both parties. 2. Juyang Company did not use it without authorization, but could not operate within the expected time due to delays in the construction period. The extraordinary company took the initiative to find the Juyang company to negotiate and request to open the business immediately. In the original trial, witnesses appeared in court and witnessed the project. prove. 3. The decoration contract does not belong to the construction project construction contract, and the judicial interpretation of the construction project does not apply to the case. Even if the provisions of the judicial interpretation of construction projects are applicable, Juyang Company never advocates that the quality of the extraordinary company's decoration works does not conform to the contractual agreement of both parties, but advocates that it does not meet the national quality standards, and gives the majority of companies, businesses and customers to come to shop. Consumers have brought major security risks. 4. Juyang Company filed a counterclaim on quality problems within a period of less than one year after actual use, and did not pass the warranty period. From the perspective of quality warranty responsibility, the extraordinary company should also bear the quality problems brought to the company. Economic losses. Second, the extraordinary company in the process of fulfilling the renovation contract in the process of multiple defaults, including due to engineering delays to the company to cause overdue business, liquidated damages, renovation quality problems caused by other construction delays and demolition and renovation losses. Third, the extraordinary company's claim that the 'cost settlement has been signed by the representative of Li Yang on behalf of Li Moumou' is not true, Li Moumou is not an employee of Juyang Company, can not prove that the cost settlement is the consensus reached by both parties.
Xinyu Company stated that Xinyu Company has nothing to do with this case and should reject the claim of the extraordinary company that Xinyu Company is responsible for.
On August 12, 2013, the extraordinary company filed a lawsuit in the Intermediate People's Court of Qiqihar City, Heilongjiang Province, in the court of first instance, requesting that Juyang Company and Xinyu Company pay the project amount of RMB 5,393,800, pay the liquidated damages of RMB 1,380,800, and bear the legal fees. On September 24, 2013, Juyang Company filed a counterclaim request: the extraordinary company was required to bear the repair cost of 10,000 yuan due to the unqualified quality of the project (addition and change of counterclaim request after the appraisal is made). After the project quality appraisal was made, Juyang Company increased the counterclaim request for the repair cost of 3,672,153.35 yuan due to unqualified engineering quality and 3,074,946.07 yuan of business suspension loss during the repair period. The court of first instance found the fact: On June 14, 2012, Juyang Company (Party A) signed an "Engineering Renovation Contract" with the extraordinary company (Party B), stipulating that the project content is the indoor and outdoor decoration of Juyang Company, and the contracting method is contracting Ingredients. The commencement date is June 25, 2012, and the completion date is October 10, 2012. The cost within the budget of the project is the individual item price of the sub-project (the basis for the settlement of the project price, and finally calculated according to the actual amount of engineering, the denomination of each sub-project is shown in the attached table). The project quality acceptance criteria, the implementation of the national acceptance specifications and the "Heilongjiang construction project unified acceptance standards", the project quality grade is qualified products. In the sixth article of the contract, 1. Completion acceptance: After the completion of the project, Party B shall notify Party A to conduct the inspection and acceptance, and Party A shall receive the acceptance inspection within 5 days of Party B's acceptance notice and go through the acceptance and handover procedures. Party A shall not have any use behavior when the project has not passed the test, otherwise it shall be deemed that Party A has passed the test. 2. Project settlement: After the project acceptance is passed, Party B shall transfer the relevant materials to Party A, and the two parties shall settle the project. If Party A has no objection within 5 days after receiving the information, it shall be deemed as approved settlement information. Both parties shall fill in the project settlement statement and sign and confirm. If Party A fails to submit a written objection after receiving the information, it refuses to sign the statement. The settlement statement is deemed to have been approved by Party A. Article 7 stipulates that after the contract is signed, Party A shall pay Party B 30% of the total project price when the construction conditions are met. During the construction process, Party A shall pay the total amount of Party B's work twice in accordance with the progress of the project image. %, the remaining amount after completion is used as the project quality guarantee, and will be paid in one lump sum after the expiration of the warranty period. Article 8 stipulates that the project warranty period is one year from the date of completion. Article 9 stipulates that Party A's responsibilities and obligations shall be subject to the supervision of the quality of the project and the progress of the construction. Some Party A whose quality does not meet the standards has the right to request Party B to rework... Article 10 stipulates that Party B may not delay the use of Party B due to Party B's reasons for the delay in the use of construction and acceptance. Party B shall compensate Party A according to the standard of 1工程 of the total project cost. Article 11 stipulates that after the completion of the project, Party A shall not pay Party B's construction cost according to the agreed time limit, and shall pay Party B a penalty of 0.1% of the total amount of arrears every day. The contract was signed by Jiang Moumou, the legal representative of Juyang Company, and the legal representative of the extraordinary company, and the seal was issued by Party A as the project department of Taiyang Xinyu Real Estate Development Co., Ltd. On November 1, 2012, Juyang Company (Party A) and the extraordinary company (Party B) signed another “Construction Contract”, stipulating that the project site will be the dining area on the fourth floor of Juyang Company. The scope of contracting is hall walls, hanging sheds, floor tiles, hall booths, etc. The construction period is from November 1, 2012 to November 26, 2012. The contracting method is for labor and materials. The contract price is subject to a fixed total price of 750,000 yuan; after the contract is signed, the worker will pay 30% of the project advance payment on the day of the project, and the project image will be repaid 20% of the project amount when the project progresses to 50%. The remaining amount will be paid within 5 days after the completion of the project. Sex paid (detain 3% of the project as a warranty). If Party B fails to complete the work on time, the amount of Party B will be deducted by 5,000 yuan for each day. The legal representatives of both parties sign the contract. The extraordinary company started construction in early August 2012 and was completed in December 2012 without acceptance. Juyang Company opened the house on December 18, 2012. From August 2012 to December 2012, Juyang Company paid 4,775,000 yuan for the decoration project of the extraordinary company, and the amount of materials and materials was used to pay the project amount 342,439.
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