From the perspective of avoiding legal risks, it is still the best way to recover arrears through litigation. Even in the process of litigation, the judge can act as an intermediary to do the work of the debtor, and the debtor also makes some concessions. In this case, it is easy for the debtor to reach a settlement and then sign a settlement agreement. When one party fails to perform the settlement agreement, it can apply directly to the court for enforcement of the agreement.
Handling methods of project arrears disputes:
1, clearly stipulate the payment period and overdue interest of the project funds.
Project funds include advance payment, progress payment, settlement payment and warranty payment. Where the model text of the Construction Contract for Construction Projects is used, the general clauses in Section II clearly stipulate the payment amount, payment period, collection period and interest-bearing start period of various construction funds; Unused, refer to the agreement. For the debt of 654.38+million yuan, the interest is calculated at three ten thousandths of a day, and the annual interest reaches one million yuan, which is really a large sum of money, which can effectively make up for the loss of the contractor. Where there is no agreement or unclear agreement on the interest payment standard and time, Articles 17 and 18 of the Judicial Interpretation of Construction Project Contracts shall apply. In addition, the nature of overdue fine and interest is different, and the overdue fine for arrears can be agreed separately.
2. claim rights in time
Construction management is known as "low bid, diligent visa and high claim". Claim refers to the compensation claim made by the contractor to the other party when the employer fails to perform the contract obligations or makes mistakes during the performance of the contract. After the claim is successful, the project payment can be increased, so the contractor should send a claim notice to the engineer in time after the claim event. After the completion acceptance, complete settlement data shall be sent to the Employer in time to request settlement. After the arrears are formed, the rights should be claimed within the limitation of action to prevent the loss of the right to win the lawsuit.
3. Termination of the contract
Article 9 of the Judicial Interpretation of Construction Contracts for Construction Projects stipulates that if the Employer is unable to carry out the construction under any of the following three circumstances, the contractor may terminate the contract after being urged: failing to pay the project price as agreed; The main building materials, building components and equipment provided do not meet the mandatory standards; Failing to perform the obligation of assistance agreed in the contract. When the employer breaks the contract for many times, the two sides no longer have the basis for cooperation, and the contractor shall decisively terminate the contract. The termination of the contract by the contractor stems from the serious breach of contract by the employer, and the contractor may require the employer to pay the project payment, liquidated damages and compensation for losses (including direct losses and available benefits) according to Article 97, 107, 13 of the Contract Law and Article 10 of the Judicial Interpretation of Construction Contracts for Construction Projects.
4. Reasonable application of Article 286 of the Contract Law
According to Article 286 of the Contract Law, if the employer fails to pay the price as agreed, the contractor may, after urging, agree with the employer to discount the project, or apply to the people's court for auction of the project according to law. The discounted project or the auction price will give priority to the payment of the construction project price.
5. Use the government, public opinion and migrant workers.
Under the condition of government intervention and leadership's attention, it is not uncommon to solve the project arrears, which is a timely, effective and simple method to clear debts, and the contractor should make the best use of it; In addition, the contractor shall promptly notify the local government of the untrustworthy employer, and the government will punish and expose it. Public opinion has become the uncrowned king of today's society. Seeing the fact of arrears in the newspaper is brighter than the screen, which can attract widespread attention and effectively promote the work of clearing debts. In contemporary China, where stability is paramount, it is convenient for migrant workers to sit in, petition and demonstrate collectively, but the situation must be prevented from deteriorating.
6. Recover the arrears in various ways.
The construction project has a long cycle and a large investment, and it takes a lot of time and energy to go to court, and the result is unpredictable. Therefore, negotiation and mediation is the best way to solve disputes, which can not only recover the arrears in time, but also lay the foundation for cooperation again. The contractor shall not claim that the other party shall bear the liability for breach of contract in exchange for timely payment of arrears; Acceptable business products, production investment, inventory materials, securities, due creditor's rights, etc. The realization of creditor's rights by the employer; Debt can also be recovered through debt restructuring, debt transfer and debt discount.
7. Hire legal counsel
Project funds are often closely related to contract loopholes, quality disputes, visa claims and liability for breach of contract, so it is wise to hire professional lawyers. Professional lawyers can review contract terms and evaluate contract risks; Can make suggestions for enterprise decision-making and train employees in the rule of law; Be able to dynamically monitor the performance of the contract and solve disputes in time; Can guide the contractor to exercise the right of priority compensation and the right to terminate the contract; Evidence can be collected in time to lay the foundation for litigation mediation.