How to legally and effectively solve the project payment dispute 1, change the concept and focus on profit. Article 269 of the Contract Law stipulates that "a construction project contract is a contract in which the contractor carries out the project construction and the developer pays the price", indicating that the contractor enters into a construction project contract in order to obtain the project payment and realize the profit-making purpose. Therefore, the contractor should bear in mind the profit-making purpose and change the previous business philosophy of taking the construction period and quality as the management center. Of course, the completion and delivery of qualified projects is the premise of profit. 2. Establish enterprise quota and master quotation skills. At present, the project bidding generally realizes the strategy of quoting with bill of quantities and winning the bid at a reasonable low price. Therefore, the contractor should absorb foreign advanced experience according to the actual situation of the enterprise and gradually establish the enterprise quota suitable for him. If we continue to apply national quotas, we will not keep pace with the times and will eventually lose our way. When bidding, it is necessary to fully predict the degree of increase or decrease of engineering quantity that may be caused by design changes, and adopt corresponding quotation strategies. 3, clearly set the adjustable conditions of fixed price, realize the bill of quantities must be quoted at a fixed price. Fixed price, also known as transaction price, includes unit price transaction and full price transaction, both of which are within the risk range contained in the contract price, and the price will not be adjusted. However, due to design changes, the engineering quantity may increase. In order to be fair, the contractor shall clearly stipulate the adjustment method of the contract price beyond the fixed price risk range, such as the increase or decrease of material price, the increase or decrease of engineering quantity or the time limit exceeding a certain limit as the adjustable conditions. In addition, the contractor should not agree to the price increase caused by design change and increase or decrease of engineering quantity as a concession, otherwise it cannot ask for additional project funds. 4. Clearly specify the payment period and overdue interest of the project funds, including 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; If it is not used, 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. 5. Settlement after completion: Make full use of the "post-acceptance" clause. After completion, the contractor submits the settlement data, and the employer delays or does not reply at all, so as to achieve the purpose of defaulting or not paying the project payment. The contractor asked the court to judge the project payment according to the submitted data, but the employer also proposed that the settlement document was made by the contractor unilaterally, and the evaluation price should prevail, and the contradictions between the two sides were tit for tat. Article 20 of Judicial Interpretation of Construction Contract of Construction Project stipulates that if the Employer receives the completion settlement documents and fails to reply within the time limit, it will be regarded as approval, which undoubtedly gives the contractor a sword of honour, which can effectively curb some employers from delaying the completion settlement in order to achieve the purpose of delaying the project payment. In order to make full use of it, the contractor should clearly stipulate the time limit for reply and the legal consequences of overdue reply in the construction contract-overdue reply is regarded as approval. When a lawsuit is filed, the court may decide the project payment according to the submitted price. 6. Ensuring that the project quality and time limit for a project are qualified and completed on schedule is the premise of fully obtaining the project payment. According to Articles 2, 3 and 10 of the judicial interpretation of the construction contract, if the project quality is qualified, the employer will pay the project payment; If the quality of the project is not up to standard, which violates the contracting purpose of the employer, the contractor has the right to refuse to accept and pay the project funds, so the contractor must carry out the construction according to the construction contract, design drawings and technical specifications, otherwise it will mean futile and heavy losses. If the construction is delayed and the completion is overdue, the contractor will pay liquidated damages and compensate for the losses, so it is necessary to step up the construction and ensure the construction period. 7. Getting a visa in time is an agreement reached after both parties agree to pay various fees, postpone the construction period, adjust the fees and compensate for the losses in accordance with the contract or construction practice during the performance of the construction contract. With the visa, the employer can be required to increase the project payment and extend the construction period, and the contractor must attach great importance to it. The conditions to be certified include but are not limited to: the improvement of engineering quantity or quality standard caused by drawing delay, commencement delay, construction period delay, price adjustment, engineering quantity confirmation, design change and instruction change. Visa carriers include: visa forms, supplementary agreements, meeting minutes, letters, data messages, etc. 8. Claim for construction management right in time, which 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 added, so after the claim event, the contractor shall promptly send a claim notice to the engineer (the model text is 28 days). 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. 9. Termination of the Contract Article 9 of the Judicial Interpretation of the Construction Contract of Construction Projects stipulates that if the employer cannot 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. 10, fair use of contract law article 286 according to the provisions of article 286 of the contract law, if the employer fails to pay the price as agreed, the contractor may, after being urged, agree with the employer to discount the project, or apply to the people's court to auction the project according to law, and the construction project price shall give priority to the project discount or auction price. This is another sword given to the contractor by law, which takes precedence over the mortgage of the bank and the creditor's rights of other creditors and can effectively protect the contractor. However, its limitations are also prohibitive: projects related to national interests and social interests, such as office buildings, libraries, museums, airports, docks, etc., are undoubtedly "projects that should not be discounted or auctioned", and government projects are the biggest defaulters; After consumers pay all or most of the money for the purchase of commercial housing, the priority of the project price shall not be against the buyer, but most consumers pay the house price by mortgage, and all the house price has been paid when the project is completed; The time limit for exercising the priority is six months, counting from the completion of the construction project or the completion date agreed in the construction project contract. However, if the employer delays the final accounts or the final accounts for too long, it will exceed the time limit for exercising the rights. 1 1. With government intervention and leadership's attention, it is not uncommon to use the power of the government, public opinion and migrant workers to solve the problem of project payment arrears. This is a timely, effective and simple way to pay off 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. 12. It takes a long time and a lot of investment to recover the arrears through various means, and the lawsuit is time-consuming and laborious, 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. 13. Hiring legal counsel is 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.
Legal objectivity:
Article 807 of the Civil Code of People's Republic of China (PRC), if the employer fails to pay the price as agreed, the contractor may require the employer to pay the price within a reasonable period of time. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount or request the people's court to auction the project according to law, except that it is not appropriate to discount or auction according to the nature of the construction project. Priority should be given to compensation for the discount or auction price of construction projects.