1. Article 4 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes: The contractor's illegal subcontracting, illegal subcontracting of construction projects or the unqualified actual constructor's signing of construction contracts with others in the name of qualified construction enterprises is invalid.
The people's court may confiscate the illegal income of the parties concerned in accordance with the provisions of Article 134 of the General Principles of the Civil Law.
2. Article 2 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes: The construction contract of the construction project is invalid, but the construction project has passed the completion acceptance, and the contractor requests to pay the project price according to the contract, which shall be supported.
3. Article 18 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Project Contract Disputes: Interest shall be paid from the date of payment. If the parties have not agreed on the payment time or the agreement is unclear, the following time shall be regarded as the payment time:
( 1)? If the construction project has been actually delivered, the date of delivery;
(2)? If the construction project is not delivered for use, the date of submission of the completion settlement documents;
(3)? If the construction project has not been delivered and the project price has not been settled, the date when the parties file a lawsuit.
4. Article 17 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Project Contract Disputes: If the parties have an agreement on the calculation and payment standard for unpaid project price interest, it shall be handled in accordance with the agreement; If there is no agreement, the interest shall be calculated according to the interest rate of similar loans published by the People's Bank of China in the same period.
5. Article 269 of People's Republic of China (PRC) Contract Law: Article 269 A construction project contract is a contract in which the contractor carries out the project construction and the employer pays the price.
Construction engineering contracts include engineering survey, design and construction contracts.
Article 272 of the Contract Law of People's Republic of China (PRC): The employer may conclude a construction project contract with the general contractor, or conclude a survey, design and construction contract with the surveyor, designer and constructor respectively. The employer shall not dismember a construction project that should be completed by one contractor into several parts and contract it to several contractors.
The general contractor or the contractor for survey, design and construction may, with the consent of the employer, entrust part of its contracted projects to a third party. The third party shall be jointly and severally liable to the Employer with the general contractor or the survey, design and construction contractor for the work results it has completed.
The contractor shall not subcontract all the construction projects contracted by him to a third party or dismember all the construction projects contracted by him and subcontract them to a third party in the name of subcontracting.
It is forbidden for the contractor to subcontract the project to units that do not have the corresponding qualifications. Subcontractors are prohibited from subcontracting contracted projects. The construction of the main structure of the building project must be completed by the contractor himself.
6, "the Supreme People's Court on the application of
(1) It existed before the end of the trial of the original trial and was discovered after the end of the trial for objective reasons;
(two) found before the end of the trial of the original case, but due to objective reasons can not be obtained or provided within the prescribed time limit;
(three) formed after the trial of the original trial, and it is impossible to bring a lawsuit on this basis.
If the evidence submitted by the retrial applicant has been provided in the original trial, and the people's court of the original trial has not organized cross-examination and it is not used as the basis for judgment, it shall be deemed that the reasons for providing evidence within the time limit are established, except that the people's court of the original trial refused to accept it in accordance with Article 65 of the Civil Procedure Law.
7, "the Supreme People's Court on the application of
Before making a judgment, if the parties fail to provide evidence or the evidence is insufficient to prove their claims, the parties with the burden of proof shall bear the adverse consequences. ?
8. Article 29 of the Construction Law: The general contractor of a construction project may contract out some contracted projects to subcontractors with corresponding qualifications; Except for subcontracting agreed in the general contract, it must be approved by the construction unit.
9. Article 27 of the Regulations on Quality Management of Construction Projects: If the general contractor subcontracts the construction project to other units according to law, the subcontractors shall bear the quality responsibility of the subcontracted project to the general contractor according to the stipulations of the subcontract, and the general contractor and subcontractors shall bear joint responsibility for the quality of the subcontracted project.
Extended data:
Several problems often involved in construction contract disputes;
In a few cases, the construction contract is invalid.
1, the contractor has not obtained the qualification of the construction unit or exceeded the qualification level.
Strict qualification access system is implemented in the field of building construction, and the construction law stipulates that construction enterprises should implement mandatory qualification management. The quality of construction projects is life, and the construction ability of construction enterprises is the premise to ensure quality. The management and examination of the qualification of construction enterprises is the basis of construction, and the contracts signed by unqualified and over-qualified enterprises are invalid.
However, if the contractor obtains the corresponding qualification grade before the completion of the project, it cannot be treated as an invalid contract.
2. affiliated.
If an unqualified or unqualified actual builder borrows the name of a qualified construction unit, it is usually called "affiliated"; Due to the large-scale launch of national infrastructure, the acceleration of urbanization, the poor investment and financing channels, the high profit return of construction projects and many shortcomings in management, with the unprecedented prosperity of the construction market, this special form of "affiliated" has emerged.
3. Bidding must be conducted without bidding or bidding is invalid.
Article 3 of the Bidding Law stipulates the scope of project bidding, which is specified in the Standard Provisions on the Scope and Scale of Bidding for Construction Projects.
If the project specified in the tender scope is not tendered, the signed construction contract is invalid.
Problems in practice: 1. For the project that must be tendered, the general contractor's civil works and installation works are tendered, and the ancillary works such as decoration works are directly contracted by the construction unit, then the directly contracted contract is also invalid; 2. For the project subject to tender, after the general contractor wins the bid, the construction unit will directly contract a part of the general contractor's project to a third party for construction based on various circumstances, and the construction contract signed between the construction unit and the third party will also be invalid.
Article 50, Article 52, Article 53, Article 54, Article 55 and Article 57 of the Law on Tendering and Bidding stipulate six situations of invalid bidding. Paragraph 2 of Article 45 of the Law stipulates that the bid-winning notice is legally binding on the tenderee and the bidder. Winning the bid is the prerequisite for the employer and the contractor to sign the construction contract, and invalid winning the bid will inevitably lead to the invalidity of the construction contract.
4. Illegal subcontracting.
It is common for the general contractor to subcontract the project, but subcontracting in violation of the regulations will also lead to the invalidation of the subcontract.
The criteria for determining illegal subcontracting are several situations stipulated in Article 78 of the Regulations on Quality Management of Construction Projects: 1. It is illegal for the general contractor to subcontract the project to units or individuals that do not have the corresponding qualifications; Two, not stipulated in the general contracting contract, and without the consent of the construction unit, the general contracting unit will be part of the project to other units to complete; 3. The general contractor subcontracts the main structure construction of the project; 4. Subcontractors are subcontracted.
5. Subcontracting.
Article 272 of the Contract Law and Article 28 of the Construction Law clearly stipulate that subcontracting is prohibited, and Article 25 of the Regulations on Quality Management of Construction Projects stipulates that subcontracting is not allowed.
Article 78 of the Ordinance stipulates that subcontracting refers to the behavior that a contractor fails to perform the responsibilities and obligations stipulated in the contract after contracting a construction project, and transfers all the contracted construction projects to others or dismembers them and then transfers them to other units in the name of subcontracting.