I. Identification of the validity of the construction contract of the construction project

1. How to determine the validity of a construction contract without obtaining construction approval procedures?

If the developer has not obtained the construction land planning permit, construction project planning permit and other administrative examination and approval procedures for the project, the construction project construction contract signed with the contractor shall be invalid. However, if the developer obtains the relevant approval procedures or the construction is approved by the competent authority before the end of the first instance court debate, the contract shall be deemed valid.

Failure of the developer to obtain a construction license for the construction project shall not affect the validity of the construction contract.

2, "Interpretation of the Supreme People's Court on the Application of Law in the trial of construction contract dispute cases" (hereinafter referred to as the "Interpretation") Article 1, item (2) of the "unqualified actual constructor using the name of a qualified construction enterprise" to contract construction projects (that is, "affiliated") specific includes what circumstances?

Under any of the following circumstances, it shall be identified as an act of "affiliation" as provided for in the Interpretation:

(1) individuals, partnership organizations or enterprises not qualified to engage in construction activities contract projects in the name of construction enterprises qualified to engage in construction activities;

(2) Construction enterprises with low qualification level contract projects in the name of construction enterprises with high qualification level;

(3) A construction enterprise that does not have the qualification of general contracting for construction contracts in the name of a construction enterprise that has the qualification of general contracting for construction contracts;

(4) Qualified construction enterprises allow others to contract projects in their own name through nominal joint venture, cooperation, internal contracting and other means in disguise.

3. How to determine whether it is a construction project that must be tendering?

The identification of construction projects that "must be subject to bidding" as stipulated in item (3) of Article 1 of the Interpretation shall be determined in accordance with the provisions of Article 3 of the Tendering and Bidding Law of the People's Republic of China, the Regulations on the Implementation of the Tendering and Bidding Law of the People's Republic of China and the relevant provisions of the former National Development Planning Commission's Provisions on the Scope and Scale of Bidding for Construction Projects. Where there are new provisions in laws and administrative regulations, such new provisions shall apply.

4. How to determine the validity of a labor subcontract?

If the following conditions are met at the same time, the labor subcontract signed is valid:

(1) The labor contractor obtains the corresponding qualification level standard of the labor subcontracting enterprise;

(2) The scope of subcontracting operations is labor operations in the construction project (including carpentry, masonry, plastering, stone making, painting, reinforcement, concrete, scaffolding, formwork, welding, plumbing, sheet metal, wiring);

(3) The contracting method is to provide labor services and small machinery and accessories.

Where it is stipulated in the contract that the contractor is responsible for the lease of large machinery and rotating materials and procurement of main materials and equipment related to the project, it does not belong to labor subcontracting.

5. How to identify the internal contracting behavior of construction enterprises?

If the contractor under the construction contract of a construction project transfers all or part of the contracted project to its subordinate branches or registered project managers and other enterprise employees, and the contractor manages the construction process and quality of the project and assumes the rights and obligations of the construction contract externally, it shall be an internal contracting act of the enterprise. If the employer claims that the construction contract is invalid on the grounds that the internal contractor lacks construction qualification, it shall not be supported.

6. How to determine the validity of small construction projects and farmers' low-rise residential construction contracts and family residential interior decoration contracts?

If the builder signs a contract to build a small construction project or a farmer's residence below two floors (including two floors), or carries out interior decoration and decoration of a family residence, and the parties claim that the contract is invalid only on the grounds that the builder lacks the corresponding qualifications, it is generally not supported. If a party does contract a project in violation of the provisions on the administration of enterprise qualifications, it may suggest the relevant competent administrative department to deal with it.

If there is an agreement on the quality standard in the aforesaid contract, it shall be determined in accordance with the agreement; if there is no agreement, it shall be determined in accordance with the general standard or the specific standard that meets the purpose of the contract. If the parties have other disputes, in principle, they can refer to the relevant contents of this answer.

2. Determination and payment of the construction project price

7, the parties have reached an agreement on the settlement of the project price before the lawsuit, and one party requires a new settlement, how to deal with it?

The parties have reached an agreement on the settlement of the project price before the lawsuit, and if one party requests a new settlement in the lawsuit, it will not be supported, except that the settlement agreement is deemed invalid or revoked by the court or arbitration institution.

The construction contract of a construction project is invalid, but if the project has passed the completion and acceptance inspection, and one of the parties requests to confirm that the settlement agreement is invalid on the grounds that the construction contract is invalid, it shall not be supported.

8. How to determine the effectiveness of the contractor's project manager's actions during the performance of the contract?

During the performance of the construction contract, the contractor's project manager, in the name of the contractor, signs and confirms the settlement report and visa documents, affiicates the seal of the project department, collects project funds, accepts materials supplied by the employer, etc., which shall in principle be regarded as duty acts or apparent agency acts and shall be binding on the contractor. Except as otherwise agreed in the construction contract or where the Contractor has evidence to prove that the other party knew or should have known that the project manager had no agency.

9. How to determine the validity of the visa confirmation of the party's staff?

If the parties have a clear agreement in the construction contract on the specific personnel who have the right to confirm the visa of materials such as the change of the project quantity and price negotiation, in accordance with the agreement, the visa confirmation made by other personnel except the legal representative shall not be binding on the parties, unless the other party has reason to believe that the visa officer has the power of agency; If there is no agreement or the agreement is unclear, and the visa confirmation made by the party's staff is its official act, it shall be binding on the party, except that the party has evidence to prove that the other party knows or should know that the visa officer does not have agency.

10. How to determine the validity of the signature of the project supervisor on the visa document?

The visa documents signed and confirmed by the project supervisor in the process of supervision, involving the facts such as the quantity, duration and quality of the project, shall be binding on the Employer in principle; involving the economic decisions such as the negotiation of the change of the project price, shall not be binding on the Employer in principle, except as otherwise agreed in the authorization of the supervisor in the construction contract.

11. During the performance of the fixed total price contract, if the parties request to adjust the project price on the grounds of the design change of the project, how to deal with it?

The construction contract of a construction project stipulates that the price of the project shall be settled at a fixed total price. In the course of actual performance, if the actual quantity of the project increases or decreases due to design changes of the project or other reasons, the parties shall strictly grasp the requirement for the adjustment of the project price. If there is no agreement or the agreement is unclear, the increase or decrease of the project quantity may be settled separately by referring to the agreed standard of the contract. If the settlement cannot be made by referring to the agreed standard, the settlement may be made by referring to the pricing method or pricing standard issued by the competent administrative department of construction site.

The party claiming the adjustment of the project price shall bear the burden of proof on the facts such as the specific scope of the construction agreed in the contract, the reasons for the increase or decrease of the actual project volume, and the quantity.

12. In the course of the performance of the fixed price contract, the price of major building materials has changed significantly, and the parties request to adjust the project price, how to deal with it?

The construction contract of a construction project stipulates that the project price shall be settled at a fixed price. In the course of actual performance, the prices of major building materials such as steel, wood, cement and concrete, which have a greater impact on the project cost, have changed significantly, exceeding the scope of normal market risks. If the contract has an agreement on the risk burden of price changes of building materials, the agreement shall be handled in principle. If there is no agreement or the agreement is unclear, and the party requests to adjust the project price, it can be supported as appropriate outside the scope and range of market risks; The specific amount may be entrusted to the appraisal institution with reference to the opinions of the construction site administrative department on the issue of dealing with the price difference of building materials to be determined.

If the construction period is delayed or the supply of building materials is delayed due to the reasons of one party, part of the project payment for the difference in price of building materials during this period shall be borne by the party at fault.

13. If the contractor fails to complete the project construction during the performance of the fixed total price contract, how to determine the project price?

The construction contract of a construction project stipulates that the price of the project shall be settled at a fixed total price. If the contractor fails to complete the construction of the project, the contractor shall be required to pay the project fee. If the quality of the project completed by the contractor is qualified after examination, the method of "proportional conversion" may be adopted. That is, the appraisal institution calculates the price of the completed part of the project and the total price of the entire contract under the corresponding fee collection standard, compares the two to calculate the corresponding coefficient, and then multiples the fixed price agreed in the contract by the coefficient to determine the project payment payable by the owner.

If there is any dispute between the parties concerning the quantity of the completed project, it shall be determined according to the meeting minutes, handover records, supervision materials, subsequent construction materials and other documents signed by the two parties at the time of site withdrawal and handover. If it cannot be determined, the burden of proof shall be reasonably assigned according to factors such as the failure to handle the handover at the time of the project withdrawal and the reasons for the failure to complete the project.

14. How shall the contractor settle the project price in accordance with the completion settlement documents according to the provisions of Article 20 of the Interpretation?

The construction contract of a construction project stipulates that the owner shall reply within a certain time after receiving the completion settlement document submitted by the contractor, but it is not expressly stipulated that failure to reply within the time limit shall be deemed as approval of the completion settlement document. If the contractor requires the settlement of the project price according to the completion settlement document in accordance with Article 20 of the Interpretation, it shall not be supported.

If the construction contract of a construction project does not explicitly stipulate this, and the contractor only requires the settlement of the project price in accordance with the completion settlement document based on the provisions of Article 16 of the Administrative Measures for Contracting out and Contracting Pricing of Construction Projects of the former Ministry of Construction, or the provisions of Article 33.3 of the general terms of the Construction Contract (Model Text) of the Construction Project (GF-1999-0201), Not supported.

15. How to settle the project price in the "black and white contract"?

Where laws or administrative regulations stipulate that a construction project shall be subject to tender, or a construction project which is not subject to tender, but has gone through the procedures of tender and bidding according to law and has been put on record, and the substantive contents of the construction contract actually performed by the parties are inconsistent with those of the winning contract on record, the winning contract on record shall be used as the basis for settlement of the project price.

If a construction project that is not required to be subject to bidding according to laws and administrative regulations and is actually not subject to bidding and bidding according to law, the parties shall record the construction contract signed by the local construction administrative department, and the substantive content of the contract on record is inconsistent with the contract actually performed, the contract actually performed by the parties shall be used as the basis for settlement of the project price.

If both the bid winning contract filed and the construction contract actually performed by the parties are deemed invalid due to violation of the mandatory provisions of laws and administrative regulations, the project price may be settled with reference to the contract actually performed by the parties.

16. How to identify substantive changes in the "black and white contract"?

Any agreement signed by the two parties separately under the same project scope to change the project price, pricing method, construction period, quality standards and other results of the winning bid shall be deemed as a substantive change as provided for in Article 21 of the Interpretation. The promises made by the successful bidder to purchase the contracted real estate at a significantly higher price than the market price, construct housing supporting facilities without compensation, transfer profits, donate money to the builder, etc., shall also be deemed to change the substantive content of the winning contract.

In the process of actual performance of the winning contract filed for record, if the project quantity increases or decreases, quality standards or construction period changes due to objective reasons such as design changes or planning adjustments, and the substantive contents of the winning contract are changed or supplemented by written documents such as supplementary agreement and minutes of talks signed by the parties, it shall be considered as normal contract modification. The above-mentioned documents shall be used as the basis for determining the rights and obligations of the parties.

17. How to determine the project price in the invalid construction project construction contract?

The construction contract of a construction project shall be invalid, but if the project has passed the completion and acceptance inspection, any of the parties shall, in accordance with the provisions of Article 2 of the Interpretation, request to pay the project discount compensation in accordance with the contract, it shall be supported. If the contractor requests the Employer to pay the interest on the project payment in arrears according to the loan interest rate of the People's Bank of China for the same period, it shall be supported. The employer's request to deduct the profits contained in the project discount compensation on the grounds that the contract is invalid shall not be supported.

18. How to determine the scope of "actual constructor" in the Interpretation?

The "actual constructor" in the "Interpretation" refers to the contractor of the invalid construction project construction contract, that is, the contractor of the illegal professional project subcontracting and labor subcontracting contract, the subcontractor, the builder who borrows the qualification (affiliated constructor); Where a construction project has been subcontracted several times, the actual constructor shall be a civil entity such as a legal person, an unincorporated enterprise, an individual partnership, or a contractor who actually invests funds, materials and labor to carry out the construction of the project. The court shall strictly determine the criteria for the actual constructor and shall not arbitrarily expand the scope of application of paragraph 2 of Article 26 of the Interpretation. Where a party outside the scope of the foregoing claims the unpaid project payment against the contractor as the defendant according to this provision, it shall not be accepted, and if it has been accepted, it shall rule to reject the lawsuit.

Construction workers pursuing unpaid wages or labor remuneration shall be properly handled in accordance with the relevant laws and regulations on wage payment and the Opinions of the Beijing Higher People's Court on the Rapid Handling of Cases related to wages arrears of Migrant Workers in the Construction Field according to Law.

19. If the actual constructor of the illegal subcontract or subcontract claims that the project payment is owed, how to determine the subject of litigation? How to assume the responsibility of the employer?

If the actual constructor demands payment of the project funds against the illegal subcontractor or subcontractor as the defendant, the court shall not add the contractor as the co-defendant according to its functions and powers; If the actual constructor demands payment of the project money against the contractor, it shall add the illegal subcontractor or subcontractor to participate in the lawsuit as a co-defendant, and the developer shall bear joint liability within the scope of the project money owed to the illegal subcontractor or subcontractor. The developer shall bear the burden of proof in case of a defense on the grounds that it does not owe the project payment.

20. How to deal with the unqualified affiliated constructor who claims to owe the project payment? If the affiliated party subcontracts or subcontracts the project to another person for construction, and the builder claims that the project payment is in arrears, how to deal with it?

If an unqualified actual constructor (affiliated constructor) associates with a qualified construction enterprise (affiliated party) and signs a construction contract in the name of the enterprise, and the affiliated party fails to claim the creditor's right of the project payment, the affiliated constructor may Sue the developer in its own name to require the developer to pay the project payment, and the court shall, in principle, add the affiliated party as a litigant. The Employer shall be liable for payment within the scope of unpaid project payment. The affiliated party and the affiliated builder shall be jointly and severally liable for the debts arising from the performance of the construction contract.

After contracting the project, the affiliated party subcontracts or subcontracts the project to another person in the name of the affiliated party, and the construction party claims that the project payment is owed, it shall be dealt with in accordance with the provisions of Article 47 of the Answer to Several Questions in Civil and Commercial Cases of the Beijing Higher People's Court.

21. If the developer claims to deduct the project money paid to the legal subcontractor and the actual constructor, how to deal with it?

If the contractor requires the developer to pay the project money in accordance with the construction contract of the construction project, and the developer claims to deduct the project money it has already paid to the legal subcontractor and the actual constructor, it will not be supported, but the parties have agreed otherwise, effective judgment or arbitration award