Brief introduction of the case
On April 6th, 2005, Guanzhong Company signed a construction contract with Tian Kai Company, stipulating that Guanzhong Company would contract its workshop, office building, living building, doorman and outdoor works to Tian Kai Company for construction. The duration of this contract is 265,438+05 days, and the commencement date is the actual commencement report after the contract is signed. Articles 14. 1 and 14.2 of the General Conditions of Contract stipulate that the contractor must complete the project according to the completion date agreed in the contract or the extended period agreed by the engineer. If the completion date agreed in the contract or the extended time limit agreed by the engineer cannot be completed due to the contractor's reasons, the contractor shall be liable for breach of contract; According to Clause 35.2 of the Special Conditions of Contract, the contractor's liability for breach of contract is calculated as a fine of 5000 yuan for each day of delay.
After signing the contract, both parties confirmed that the project started on June, 2005 10, and should be completed on June, 2006, 65438+ 10. On August 1 1, 2005, Tian Kai Company issued an application report to Guanzhong Company. In August, 2005, due to the typhoon and other reasons, it applied for a five-day extension of the construction period, and Guanzhong Company sealed it and agreed. On June 26th, 2006 and July 5th, 2006, the agent of Guanzhong Company wrote to Tian Kai Company, asking Tian Kai Company to speed up the construction progress, and demanding that the responsibility for breach of contract for overdue completion be investigated. On September 29th, 2006, Tian Kai Company sent a letter to Guanzhong Company, claiming that all the disputed projects met the completion acceptance conditions, and asked Tian Kai Company to conduct the completion acceptance on September 30th, 2006. On September 30, 2006, Guanzhong Company replied that the project was not completed as scheduled, and the environment still needed to be cleaned up, and the complete completion data and acceptance report were not provided according to the relevant provisions of the national project acceptance.
Because both parties failed to negotiate whether the project was completed, Guanzhong Company filed a lawsuit and requested an order: Tian Kai Company continued to perform the contract and immediately completed the remaining construction projects agreed in the contract; Tian Kai Company pays liquidated damages for overdue completion1160,000 yuan (5,000 yuan per day, temporarily calculated from June 65438+ 10 to September 4, 2006, and then calculated in real terms until the date of project completion acceptance); Tian Kai Company shall compensate Guanzhong Company for other economic losses of 25 1400 yuan (including supervision fees and extra expenses for the salary of Party A's engineers). Tian Kai Company argued that the construction of the disputed project had been completed and issued an acceptance notice in September 2006. The reason why this project has not been accepted so far is that Guanzhong Company deliberately delayed it.
court decision
The court held that the Construction Contract signed by the plaintiff and the defendant was legal and valid. By September 29th, 2006, Tian Kai Company issued an acceptance notice to Guanzhong Company, and the project basically met the acceptance conditions. According to the principle of good faith, Guanzhong Company shall organize the acceptance. According to the Supreme People's Court's Interpretation of Applicable Laws in the Trial of Construction Contract Disputes, the court ruled that Tian Kai Company paid Guanzhong Company liquidated damages (calculated at RMB 5,000 per day from June 65438+ 10/6, 2006 to September 29, 2006), and did not support Guanzhong Company's other claims.
Lawyer analysis
One of the focuses of the dispute in this case is whether the construction unit has completed the project on schedule.
In the construction project contract, the contractor's obligation is to complete the contracted construction project tasks in accordance with the time limit and quality standards agreed in the contract. For the breach of contract disputes caused by overdue completion, it is necessary to correctly identify the contractor's construction time, that is, the construction period, so as to judge whether the contractor has the fact of overdue completion. In this case, the commencement date determined by both parties is June, 2005 10, and the construction period agreed in the contract is 2 15 days, in which the construction period is extended by 5 days after deducting the typhoon and other reasons, so the completion period of the disputed project should be June, 2006, 65438+ 10/5. Tian Kai Company failed to complete the project before June 65438+1October 15, 2006, which constituted a breach of contract, so it should bear the liability for breach of contract for the overdue completion from June 65438+1October 16, 2006 to its acceptance conditions.
The second focus of the dispute in this case is whether the construction unit constitutes a project manager alliance that delays acceptance and project management.
After the promulgation and implementation of "Regulations on Quality Management of Construction Projects" in the State Council, the government will no longer participate in the completion acceptance of construction projects, but the construction unit will organize the design, construction, project supervision and other relevant units to carry out the acceptance or carry out the acceptance by itself, so the leading role of the completion acceptance work lies with the employer. If the contractor completes the construction task and submits the completion acceptance report to the employer, the employer will not organize the acceptance for various reasons, which will inevitably cause losses to the contractor. Therefore, Article 14 of the Supreme People's Court's Interpretation of the Applicable Law in the Trial of Construction Project Contract Disputes stipulates that if the parties dispute the actual completion date of the construction project, it shall be handled according to the following circumstances: if the construction project has passed the completion acceptance, the completion date that passed the completion acceptance shall prevail; If the contractor has submitted the completion acceptance report and the Employer delays the acceptance, the date when the contractor submits the acceptance report shall be the completion date; If the construction project is used by the employer without completion acceptance, the date of transfer of possession of the construction project shall be the completion date. In this case, the disputed project has been completed, and only sporadic finishing work such as backfill soil has not been completed. According to the principle of good faith, it should be considered that the project has met the completion acceptance conditions. As the owner, Guanzhong Company shall promptly organize relevant units to conduct completion acceptance after receiving the completion report of Tian Kai Company. Even if sporadic civil works are not completed according to the design requirements, as long as normal production is not affected, the completion acceptance procedures should be handled. At present, due to the delay in the completion and acceptance procedures of Guanzhong Company, the disputed project has not been completed and accepted so far, which directly leads to the failure to deliver the project. Therefore, according to the relevant judicial interpretation in the Supreme People's Court, the date when Tian Kai Company submitted the completion report should be regarded as the project completion date, and Tian Kai Company's liability for breach of contract should also be calculated to this date.
Lawyer's suggestion
In fact, in the trial of this case, the judgment of the court of first instance is different from that of the court of second instance. The court of first instance held that on September 29th, 2006, Tian Kai Company sent a letter to Guanzhong Company saying that it had completed the acceptance conditions, so it could not be taken for granted that the project had completed the acceptance conditions. The judgment of second instance was based on the Supreme People's Court's explanation that the completion acceptance conditions had been met. The different attitudes of the courts of first instance and second instance to this case actually reflect a problem: how to judge that the project done by the construction enterprise has the conditions for completion acceptance when the project is required for completion acceptance? It is generally believed that the project can be delivered for completion acceptance if the following conditions are met: the project design and the contents agreed in the contract have been completed. After the completion of the project, the construction unit shall inspect the project quality, confirm that the project quality conforms to the relevant laws, regulations and mandatory standards for project construction, meets the design documents and contract requirements, and submit the project completion report and completion drawings. The project completion report shall be reviewed and signed by the project manager and the relevant person in charge of the construction unit. For the project entrusted for supervision, the supervision unit has evaluated the project quality, has complete supervision data, and put forward the project quality evaluation report. The project quality evaluation report shall be reviewed and signed by the chief supervision engineer and the relevant person in charge of the supervision unit. Therefore, the construction enterprise should first clearly stipulate the contents of the construction in the contract, and provide complete information after confirming these contents, in case the construction unit puts forward the defense that the project is not fully completed, the information is incomplete and it cannot be accepted. Although the Supreme People's Court's judicial interpretation is relatively beneficial to construction enterprises, we have to pay attention to the inconsistency in judicial practice. Like this case, the court of first instance held that the sporadic projects were not completed and did not meet the acceptance conditions, while the court of second instance held the opposite view.
The second problem that needs to be prompted is that the construction unit has no legal responsibility to complete the acceptance in time. Article 10 of the General Conditions of Construction Contract of the Ministry of Construction does not stipulate the legal liability of Party A for non-acceptance, so the construction enterprise should clearly stipulate the liability for breach of contract for Party A's failure to complete the acceptance in time according to the needs of project acceptance and the understanding of Party A's credit, so as to reduce the occurrence of malicious non-acceptance by Party A.. In addition, in the construction contract disputes of construction projects, there are many kinds of completion acceptance disputes, such as the rejection of acceptance disputes, the malicious delay of the construction period designated by Party A, which leads to the failure to accept the whole project, the endless material disputes, and the uncooperative disputes of supervision units. Therefore, as an enterprise, it is very necessary to formulate a complete, practical and risk-proof construction contract based on its own construction experience and some frequent cases, and make full use of legal means to safeguard its legitimate rights and interests.
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