When the defects liability period agreed in 0 1. expires, the employer shall return the quality deposit.
After the expiration of the defects liability period stipulated in the contract, the employer shall return the quality deposit. After the contractor of the construction contract returns the deposit, its warranty obligation will not be affected.
02. If the Employer uses the project without authorization, the contractor shall still pay the warranty money as agreed in the contract.
Even if the employer uses the construction project without authorization before the completion acceptance, it does not necessarily exempt the contractor from the obligation to pay the warranty money according to the construction contract before the warranty period expires.
03. After the termination of the construction contract, the quality guarantee clause may not continue to apply.
After the termination of the construction contract of the construction project, if the parties have no special agreement on whether to reserve the quality deposit, the quality deposit clause generally does not continue to apply.
04. If the construction contract is invalid, the quality deposit collected by the employer shall be returned to the contractor.
The construction contract of the construction project is invalid. Even if the contractor quits and terminates the construction, the quality deposit collected by the employer based on the construction contract shall be returned to the contractor.
05. If the return period of the quality deposit is shorter than the warranty period, the agreement is also valid.
The time limit for the Employer to return the quality deposit to the Contractor is shorter than the warranty period. After the employer returns the deposit, the warranty obligation of the contractor will not be affected.
06. Before the warranty period expires, use the project in advance and pay the project payment in full.
If the project is not accepted, the employer will use it in advance. Although the project warranty period stipulated in the contract has not expired, the contractor's claim to pay all outstanding project funds should be supported.
Second, the detailed rules
When the defects liability period agreed in 0 1. expires, the employer shall return the quality deposit.
After the expiration of the defects liability period stipulated in the contract, the employer shall return the quality deposit. After the contractor of the construction contract returns the deposit, its warranty obligation will not be affected.
Label: | Project Payment | Quality Margin | Defects Liability Period | Warranty Obligation
Introduction: 20 1 1, the real estate company signed a construction contract with the development company. On 20 15, the development company sued the real estate company, demanding repayment of the overdue project funds and interest. Whether more than 86 million yuan of project quality warranty money should be returned has become the focus of controversy between the two sides. Among them, the waterproof quality warranty of 3.35 million yuan has not expired.
The court held that: (1) According to Article 2, paragraph 1 of the Measures for the Administration of Quality Margin for Construction Projects, "the quality margin is the fund agreed by the employer and the contractor in the construction contract and reserved from the payable project funds to ensure that the contractor can repair the defects of the construction project during the defect liability period." The return of quality deposit should follow the agreement of both parties. When the defects liability period stipulated in the contract expires, the employer shall return the quality deposit. The warranty obligation is the legal obligation of the contractor. After the employer returns the deposit, the contractor shall still undertake the warranty responsibility of all parts of the project within the warranty period stipulated by law or contract. (2) In this case, if the property company fails to return the quality deposit except the waterproof quality warranty, it shall pay interest according to the bank loan interest rate for the same period from the overdue date. Waterproof quality warranty money has not yet reached the return period agreed by both parties, and the reasons why the development company advocates early return are not sufficient. In addition, for the project quality problems advocated by real estate companies, the development company should bear the warranty responsibility according to law, which will not affect the return of quality warranty money. It is decided that the real estate company should pay the project funds of the development company and return the quality warranty money except the waterproof quality warranty money.
Practical points: the return of quality deposit should follow the agreement of the parties. When the defects liability period stipulated in the contract expires, the employer shall return the quality deposit. The return of the deposit will not affect the contractor's warranty obligations.
Case index: the Supreme People's Court (20 18) the Supreme People's Court No.556 "Construction Contract Dispute between a Development Company and a Real Estate Company". See "China Xinxing Construction and Development Co., Ltd. and Maritime Carnival (Qingdao) Real Estate Co., Ltd. Construction Contract Dispute Case" (Xie Aimei, People's First Division of the Supreme Court; Presiding Judge Xie Aimei, Judge Wang,,), Guidance and Reference of Civil Trial: Analysis of Cases of Second Instance in the Supreme People's Court (20190177: 216).
02. If the Employer uses the project without authorization, the contractor shall still pay the warranty money as agreed in the contract.
Even if the employer uses the construction project without authorization before the completion acceptance, it does not necessarily exempt the contractor from the obligation to pay the warranty money according to the construction contract before the warranty period expires.
Label: | Project Payment | Quality Guarantee | Unauthorized Use | Warranty Payment
Brief introduction of the case: 20 10, the development company signed a construction contract with the construction company. 20 12, the development company put the project into use without completion acceptance. On 20 15, the construction company sued the development company on the grounds of default in project payment, and the development company proposed to deduct the quality guarantee money according to the contract in the counterclaim request.
The court held that: (1) Paragraph 2 of Article 279 of the Contract Law stipulates: "The construction project can only be delivered after it has passed the completion experience; Without acceptance or unqualified acceptance, it shall not be delivered for use. " In this case, it has been found that the development company actually used the involved project before the acceptance of the involved project. According to article 13 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Contract Disputes, "If the construction project is used by the Employer without completion acceptance, it will not be supported; However, the contractor shall bear civil liability for the quality of the foundation project and the main structure within the reasonable service life of the construction project, and the development company shall bear its own responsibility for the quality problems of the use parts other than the quality of the foundation project and the main structure, so it does not support its claim that the quality of the project involved is not in conformity with the agreement. (2) According to the relevant warranty clauses of the construction contract involved, and based on the above determination, although the development company has used the project involved without acceptance, the construction company should still bear civil liability for the quality of the basic project and the main structure, so the construction company has no right to claim a refund from the development company before the 5-year warranty expires. After verification, this part of the amount should be 6.5438+0.6 million yuan, which should be deducted from the unpaid project funds of the development company.
Practical point: the construction contract stipulates the project warranty period and quality warranty fund. Even if the employer uses the construction project without authorization before the project completion acceptance, it does not necessarily exempt the contractor from the obligation to pay the warranty money before the warranty period expires.
Case index: the Supreme People's Court (20 16) the Supreme People's CourtNo. 135 "China Construction Eighth Engineering Bureau Co., Ltd. vs. Liaoyang Yalong Real Estate Development Co., Ltd." (presiding judge Zhang Zhihong, judge Hua Dong, Su Ge), see "Whether this case meets the statutory conditions for retrial, whether the contractor should be exempted from the obligation to reserve quality guarantee money". Collection of Typical Cases and Trial Experience of the Supreme People's Court Second Circuit Court 0 1: Typical Cases and Trial Experience of Civil and Commercial Second Instance (x2-2019: 211).
03. After the termination of the construction contract, the quality guarantee clause may not continue to apply.
After the termination of the construction contract of the construction project, if the parties have no special agreement on whether to reserve the quality deposit, the quality deposit clause generally does not continue to apply.
Label: | Project Payment | Quality Guarantee Fund | Unfinished Project | Contract Termination
Brief introduction of the case: In 20 13, the construction company signed a construction contract with the paper company, stipulating that the paper company would withhold the quality deposit at 5% of the project cost and return it "within 28 days after two years of project completion and acceptance". 20 15 due to the financial difficulties of the paper company, the project failed to continue construction. In 2065438+2007, the construction company sued to cancel the contract, and the paper company paid more than 220 million yuan in arrears and compensated for the losses. Whether the quality deposit of more than 20 million yuan should be detained has become the focus of controversy between the two sides.
The court held that: ① Article 97 of the Contract Law stipulates: "After the contract is terminated, if it has not been performed, the performance shall be suspended; If it has been performed, according to the performance and the nature of the contract, the parties may demand restitution and take other remedial measures, and have the right to claim compensation for losses. " After the termination of the construction contract, the unfulfilled terms should not be fulfilled. According to Article 8 of the Measures for the Administration of Quality Margin of Construction Projects, if there is no special agreement between the parties, the defect liability period shall be calculated from the date when the project passes the completion acceptance. For example, when the construction contract of the construction project is terminated, the project has not been completed and accepted, so the defect liability period has not yet begun and the quality guarantee clause has not been fulfilled. In this case, if the two parties have not made a special agreement on whether to detain the quality deposit when the project payment is made after the contract is terminated, the court should not directly apply the quality deposit clause in the original contract to determine the amount and payment of the completed project. (2) According to Article 10 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Contract Disputes, if the quality of the completed construction project is qualified after the termination of the construction contract, the employer shall pay the corresponding project price as agreed. Article 1 1 stipulates that if the quality of the construction project is not in conformity with the contract due to the fault of the contractor, the contractor refuses to repair, rework or rebuild, and the employer requests to reduce the project payment, it shall be supported. The contractor's warranty obligation is a legal obligation, even if there is no agreement in the contract, the contractor should still bear it. Therefore, the cancellation of the construction contract of the construction project does not affect the warranty obligation of the contractor, nor does it mean that the contractor does not assume any responsibility for the quality problems of the completed project. (3) In this case, according to the construction contract, the time for the paper company as the employer to return the detained quality deposit is "within 28 days after the completion and acceptance of the project for two years", but this is for the case that the project can be completed and accepted. The project involved has been suspended due to financial problems, and one of the applications put forward by the construction company in the first instance is to terminate the construction contract. In this case, between the construction company and the paper company, the project involved can no longer meet the completion conditions, so the above agreement cannot be directly applied to the return of the quality deposit. In view of the fact that the project involved has been shut down for more than two years, during this period, the paper company has not provided any evidence to prove that the project involved has quality problems and needs to be repaired. Therefore, its claim of continuing to detain the quality deposit is unfounded, and it should pay the construction company the project arrears and loss expenses according to the determined amount. It was ruled that the paper company paid the construction company more than 220 million yuan and interest, and compensated the construction company for losses of 65.438+0.7 million yuan. Within the scope of the paper company's arrears of project payment and interest, the construction company has the priority to be compensated for the discount or auction price of the built project.
Practical points: If after the termination of the construction contract, the two parties have not made a special agreement on whether to reserve the quality deposit, the relevant quality deposit clauses in the original contract cannot be directly applied when determining the project payment that the employer should pay, and only under certain circumstances can there be room for application.
Case index: the Supreme People's Court (20 17) the Supreme People's Court No.252 "Construction Contract Dispute between a Construction Company and a Paper Company". For details, please refer to "Can the quality bond clause be applied after the termination of the construction contract of the construction project?" (China Xinxing Construction and Development Corporation, Guotai Paper (Tangshan Caofeidian) Co., Ltd. (the Supreme People's Court No.1 Court Yu Meng; Presiding Judge Li Mingyi, Judge Fang Fang and Acting Judge Yu Meng), in Civil Trial Guidance and Reference: Analysis of the Supreme People's Court Case (20 1802/74: 195).
04. If the construction contract is invalid, the quality deposit collected by the employer shall be returned to the contractor.
The construction contract of the construction project is invalid. Even if the contractor quits and terminates the construction, the quality deposit collected by the employer based on the construction contract shall be returned to the contractor.
Label: | Project Payment | Quality Guarantee Fund | The contract is invalid.
Introduction: In 2009, the development company and the construction company signed a construction contract without going through the bidding procedures according to law. 20 13 the construction company withdrew after partial completion, and appealed to the development company to pay the overdue project funds and return the quality deposit. The original judgment confirmed that the contract was invalid, and after the construction company cooperated with the project completion acceptance procedures, the development company returned the quality deposit.
The court held that: (1) the construction project quality deposit refers to the funds agreed by the employer and the contractor in the construction project contract, which are reserved from the project payment payable to ensure the contractor to repair the defects of the construction project during the defect liability period. That is, the range of quality assurance metals agreed by both parties. Specific to this case, the warranty clause involved is also invalid. According to Article 58 of the Contract Law, after the contract is invalid or cancelled, the property obtained from the contract shall be returned. Accordingly, the quality deposit collected by the development company based on the construction contract should be returned to the construction company because the contract is invalid. (2) The original judgment added a condition that the construction company should cooperate with the completion and acceptance procedures of the project on the issue of returning the quality deposit because the contract was invalid. In this regard, the original judgment did not explain the relationship between the completion acceptance and the return of the quality deposit, and because the construction company had left halfway and the subsequent construction was handed over to others, when the project involved was completed and accepted did not depend entirely on the construction company. In fact, even if the completion acceptance is unqualified, the construction company cannot be directly identified as unqualified. However, if it is handled according to the original judgment, due to the uncertainty of the completion acceptance time, the time for the construction company to get back the quality deposit may be far away. To say the least, even if the quality deposit is not returned through the completion acceptance, the contractor shall still be responsible for the maintenance of the defects caused by the contractor during the defect liability period, and bear the appraisal and maintenance expenses. Therefore, if the construction part of the construction company does have defects, the development company has the right to ask the construction company to repair and bear the appraisal and maintenance costs. In the case that the construction company refuses to undertake the maintenance responsibility, the development company can also find another way to protect rights. It was decided that the development company should pay the construction company's arrears of project funds and refund the construction company's quality deposit.
Practical points: the construction contract of the construction project is invalid. Even if the contractor quits and terminates the construction, the quality deposit collected by the employer according to the construction contract shall be returned to the contractor.
Case index: the Supreme People's Court (20 16) the Supreme People's Court Shenzhongzi No.2049 "A construction contract dispute between a construction company and a development company", see "The construction contract is invalid, can the relevant losses be directly calculated with reference to the construction period agreed in the contract-Hebei Engineering Construction Co., Ltd. v. Hebei Yingchi Real Estate Development Co., Ltd. and Shijiazhuang Berlin Group Co., Ltd." (the first court of the Supreme People's Court; Presiding Judge Zhang, Judge, Acting Judge), Civil Trial Guidance and Reference: A Case Study of the Supreme People's Court (20 1804/76: 188).
05. If the return period of the quality deposit is shorter than the warranty period, the agreement is also valid.
The time limit for the Employer to return the quality deposit to the Contractor is shorter than the warranty period. After the employer returns the deposit, the warranty obligation of the contractor will not be affected.
Label: | Project Payment | Quality Assurance Period | Warranty Period | Defects Liability Period
Case Description: In 2009, the development company signed a construction contract with the construction company, and agreed to pay the quality deposit one year after the completion. 20 1 1 September, the project was completed. 20 12, 10, the construction company appealed to the development company to pay the remaining project amount of 35 10000 yuan, including 5% quality deposit and interest. The development company takes the warranty period stipulated in the quality guarantee as the defense reason.
The court held that: ① the construction project quality deposit refers to the funds agreed by the employer and the contractor in the construction project contract, which are reserved from the payable project funds to ensure the contractor to repair the defects of the construction project during the defect liability period. The defect liability period is the time limit for the contractor to undertake the defect repair obligation according to the contract, and the employer to reserve the quality deposit, which is calculated from the actual completion date of the project. Warranty period refers to the period during which the contractor undertakes the warranty responsibility for the project according to the contract. (2) The quality deposit is not a warranty fee, although the amount is reserved by the employer, it still belongs to the contractor. If the contractor fails to perform the obligation of defect repair after being notified, the employer may entrust others to repair, and deduct the repair cost from it, and return the rest to the contractor after the expiration of the defect liability period. The return of the quality deposit by the Employer shall not affect the contractor's performance of the project warranty obligations in accordance with the contract or legal provisions. Article 4 1 of "Regulations on Quality Management of Construction Projects" stipulates that if quality problems occur in construction projects within the warranty scope and warranty period, the construction unit shall perform the warranty obligations and be responsible for the losses caused. Article 27 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Construction Contract Disputes stipulates that if the guarantor fails to fulfill the warranty obligations in time, resulting in damage to the building or personal or property damage, the guarantor shall be liable for compensation. Decided that the development company should return the quality deposit to the construction company.
Practical points: The quality deposit return period agreed by both parties is valid even if it is shorter than the warranty period. After the employer returns the project quality deposit, it will not affect the contractor's performance of the project warranty obligations in accordance with the contract or legal provisions.
Case index: See the Contract Agreement Should be Respect for the Time Limit for the Return of Construction Project Quality Margin (Guan Li, Li Qi, the Supreme People's Court No.1 Criminal Court), which is contained in Guiding Cases of Civil Trial Guidance and Reference (20 1602/66: 162).
06. Before the warranty period expires, use the project in advance and pay the project payment in full.
If the project has not been accepted, the Employer will use it in advance. Although the warranty period of the project has not expired as agreed in the contract, the contractor claims to pay all the overdue project funds, which should be supported.
Label: | Project payment | Quality guarantee | Early use | Warranty period | Unaccepted.
Case description: 1995, the construction company signed a construction contract with the development company. 1996, the project is basically completed. 1997, the development company started to use the above projects without acceptance. 1998, the construction company sued the development company for paying more than 38 million yuan in arrears and interest. The development company argues that 1 0% of the project cost should be deducted on the grounds that both parties have settled the price and the1year warranty period has not expired.
The court held that: ① the construction contract signed by the construction company and the development company is valid. Although the development company and the construction company did not reach a written agreement on decoration and other projects except the closed-price contract, they negotiated on this project during the construction process. The development company issued engineering change orders for many times, and the construction company completed the construction and the development company actually used it. This part of the project payment should be settled according to the facts, subject to the project payment determined by the entrusted evaluation agency, and paid by the development company to the construction company. (2) According to relevant laws and administrative regulations, if the project is used in advance without acceptance, the quality or other problems shall be borne by the Employer. The development company used the project involved in this case without acceptance, and the quality or other problems arising therefrom should be borne by itself. Therefore, although the one-year project warranty period stipulated in the contract has not expired, it is not a breach of the contract for the development company to pay the arrears of project funds to the construction company. It was decided that the development company paid more than 38 million yuan and interest to the construction company.
Practical point: the project has not been accepted, and the employer uses it in advance. Although the project warranty period agreed in the contract has not expired, the contractor's claim to pay all outstanding project funds should be supported.
Case index: the Supreme People's Court (2000) MinzhongziNo. 125 "A project payment dispute between a development company and a construction company", see "Shanghai Fuhai Real Estate Development Co., Ltd. and Shanghai Fifth Construction Co., Ltd. Appeal Case of Project Payment Dispute" (presiding judge Cheng Xinwen, judge and acting judge Zhang), in Selected Documents of Civil Trial Guidance and Reference in the Supreme People's Court (2000)