The second case is the case that the construction unit represented by Zhu Shuying asked the construction unit to withdraw from the site within six months in June 5438+ 10, 2004. The disputed real estate development project is located in Zhuhai City, Guangdong Province. The employer and the contractor have disputes over the project price and construction period. After the completion of the project construction, the plaintiff contractor stopped work halfway and sued the defendant for paying overdue project funds and liquidated damages. The defendant demanded counterclaim to cancel the contract and asked the contractor to leave the construction site within six months. After investigation, Mr. Zhu found that the contractor's qualification declined during the construction process, which did not meet the qualification requirements of this project. He proposed to cancel the contract and made the contractor withdraw from the site on July 30, 2004 by means of prior execution. In this case, Mr. Zhu found another way, starting with lowering his qualifications and adopting the method of first execution, which perfectly completed the entrustment of the client!
The disputed projects are two high-rise residential buildings, the plaintiff is a professional construction unit of a large central enterprise, and the defendant contractor is a project company established by an investor in Hong Kong. After bidding, both parties signed the Construction Contract of Zhuhai Construction Project on July 7, 1999/kloc-0, and signed the Supplementary Provisions and the Agreement respectively on the same day, stipulating the quality, cost, advance payment and other matters.
The plaintiff entered the site on September 22nd, 1999. Later, due to the quality problems of the completed foundation project, it was ordered to stop work by the supervision unit in 2006 54 38+0 654 38+0 654 38+04. After the resumption of work on September 20, 2002, the work was stopped again on July 2, 20031day due to the project payment problem, and the work was not resumed afterwards.
The two sides have disputes over the project payment and construction period. If the negotiation fails, the contractor, as the plaintiff, filed a lawsuit in Zhuhai Intermediate People's Court at the end of 2003, demanding the defendant to pay the arrears of project funds and compensate for the loss of construction period. Lawyer Zhu suggested that the plaintiff's over-qualified undertaking of the project was invalid. Request a decree to terminate the performance of the contract, put forward an application for early execution, and make the construction unit immediately withdraw from the site. On July 30, 2004, the Intermediate People's Court ruled that the contractor quit halfway; On August 15, 2006, the court of first instance decided to cancel the contract and continue to perform, and also made a judgment on the project price. The contractor refused to accept the appeal and the Guangdong Provincial High Court upheld the original judgment on June 22, 2007.
Two. Reply to case 2
1. Thoughts on the project bidding and possible "black and white contract".
1992 The Ministry of Construction issued Decree No.23, Management Measures for Bidding of Engineering Construction, 1998, the formal implementation of the Construction Law, 1999+00+00, and 10 in 2000.
Although this project has gone through the bidding procedures, both parties signed the Zhuhai Construction Project Construction Contract on July 7, 1999, and also signed the Supplementary Provisions and the Agreement on the same day to make an agreement on quality, cost, advance payment and other matters. Suspected of making substantial changes to the construction contract of Zhuhai construction project, and also suspected of "black and white" contract problems; However, there was no bidding law at that time, and the bidding law was formally implemented on June 65438+ 10/day, 2000.
2. Thinking about the legal issues in the construction of advance fund.
Under the legal framework of China, the construction of prepaid capital has gone through three different stages of legal application and development, and each stage presents different legal characteristics.
The first stage is the absolutely invalid stage of funded construction: divided by time, it is a stage before the promulgation and implementation of the contract law in June 1 999+1October1day, which can be called the "absolutely invalid stage". Before the promulgation and implementation of the Contract Law, the Ministry of Construction, the Ministry of Finance and the State Planning Commission promulgated and implemented the Notice on Prohibiting Contracting with Capital in Engineering Construction on June 4,1996; At present, the laws and regulations regulating the legal relationship of construction contracts do not involve the issue of construction advance payment. Therefore, the people's court also refers to the spirit of the Notice, and treats and judges the advance payment as an invalid civil legal act.
The second stage is the effective and invalid stage of capital contribution: 1 June 65438+1 October/October/October, 1999, after the promulgation and implementation of the Contract Law, until the promulgation and implementation of the Judicial Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Construction Contract Disputes on February1February, 2004, it can be called. At present, there are two views on the settlement of construction contract disputes in advance payment construction projects. One is that the confirmation of advance payment does not violate the prohibitive legal provisions of the state, and it should be confirmed that the legal act belongs to the autonomy of the parties and is effective. On the other hand, another representative view is that the construction of advance capital violates the prohibitive legal provisions in the field of anti-unfair competition, and it is a disguised loan, which should be confirmed invalid. In the current judicial practice, judgments reflecting these two views exist to varying degrees.
The third stage is the stage when the principle of advance payment is effectively dealt with: On October 25th, 2004, the Supreme Court promulgated the Judicial Interpretation on Several Issues Concerning Disputes over Construction Contracts, which took effect on October 25th, 2005. The first paragraph of Article 6 of the Interpretation establishes the principle of effectively handling advance payment contracts. This clause in the Interpretation clearly stipulates the trial and judgment of the people's courts in judicial practice, which is convenient for local courts to judge according to unified standards when trying cases, and can also fully safeguard the judicial authority of the courts.
In this case, neither the plaintiff nor the defendant raised the issue of advance funds for construction, which was illegal at that time. In addition, even if the infrastructure issue is raised, the court may decide whether the contract is valid or invalid.
3. Rethinking on "Illegal Subcontracting, Quality Problems and Time Delay"
In this case, the parties put forward the reasons of "illegal subcontracting, quality problems and delay in construction period" in order to achieve the expected purpose; It should be said that these problems may also exist objectively and universally in engineering construction, but it takes a long time to prove them; For these reasons, it is difficult to realize the hope that the contractor will leave the site as soon as possible.
For such a large enterprise, it is not normal for such a general project to have such serious quality problems and time delay; There is a great possibility of illegal subcontracting. Due to the weak construction management level, poor quality control level and weak financial strength of illegal subcontracting, it is common to have disputes over project payment and construction period under the circumstances of big quality problems, long-term shutdown and difficult capital turnover. It is difficult to prove illegal subcontracting, and it takes more time to identify quality problems and delays in construction period.
4. Because the qualification change does not meet the engineering requirements, let the contractor exit first.
Relatively speaking, the qualification certificate is relatively simple, and it is easier to prove that the qualification change is inconsistent with the contracted project. Lawyer Zhu avoided the complicated problems of proof and identification in case representation, and found a hard qualification index with easy proof and less time-consuming. This requires the engineering industry to be very familiar with legal procedures and master legal weapons. In the complicated and difficult situation, we should avoid complexity and simplify, do not entangle, do not entangle, find the weak link of the other party, and propose that the plaintiff is over-qualified to undertake the project, and its behavior is invalid; Request a decree to terminate the performance of the contract, put forward an application for early execution, and make the construction unit immediately withdraw from the site.
Well, an expert knows if there is any qualification problem as soon as he reaches out, which truly reflects the demeanor of a barrister in Zhu Shuying!
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