Author/Liu Chunhui Zhang Hailong (Beijing Ting Yun Law Firm)
reading skills
The determination of the commencement date directly affects the calculation of the construction period, and then affects the judgment of whether the contractor completes the project within the agreed construction period. In practice, the commencement date stated in the employer's commencement notice may be inconsistent with the actual commencement date, and even the commencement conditions are not available when the commencement notice is issued. How to determine the actual commencement date in this case?
Referee points
After the commencement notice is issued, if the commencement conditions are not met, the commencement date shall be when the commencement conditions are met.
Brief introduction of the case
1.20 13 On September 26th, Maohe Company signed a contract with Xikan Company for the construction of pile foundation, foundation pit earthwork and foundation pit supporting works in Ruijingyuan, and agreed that Xikan Company would contract the pile foundation, foundation pit earthwork and foundation pit supporting works in Ruijingyuan, with the contract duration of 1 17 days and the commencement date tentatively set at 20/kloc.
2.2065438+20031October 3, 65438+2003, Maohe Company issued a mobilization notice to Xijian Company, saying: "The pile foundation, foundation pit earthwork and foundation pit supporting works in Ruijingyuan Community are ready for mobilization. According to the contract, after receiving the notice, you should arrange relevant personnel to prepare for mobilization in time, enter the site as soon as possible and complete all the work in time. "
Three. On June 0, 20 13, 12 and 13, the western exploration company issued the project commencement report to the supervision company and submitted the commencement report. The supervision company replied "agreed to start construction" on the same day.
Four. Xikan Company filed a lawsuit in the court of first instance: Maohe Company immediately paid the balance of the project. Maohe Company filed a counterclaim: ordered Xikan Company to pay liquidated damages for overdue completion 1.88 million yuan.
Verb (abbreviation of verb) As for the dispute about the commencement date, Maohe Company claims that the commencement date is the date when the Notice of Entry is issued (20 13 10.03), and Xikan Company claims that the commencement date is the date that meets the commencement conditions (20 13 12.08).
The court of first instance of intransitive verbs held that the commencement date of the project involved should be deemed as the date with the conditions for commencement (20 13 12 1). According to Maohe Company, Westward Exploration Company started construction on October 3, 20 13/kloc-0, and the project was delayed due to its unilateral reasons, and it was not completed until February 8, 20 15. The actual construction period is 493 days, exceeding the agreed construction period by 376 days. It shall pay a penalty of 5,000 yuan per day to Maohe Company as agreed in the contract. The Higher People's Court of Yunnan Province held that the court of first instance correctly identified the actual commencement date, and the actual commencement date advocated by Xikan Company was established and confirmed.
Legal analysis
The focus of this case is how to determine the commencement date after the commencement notice is issued and the commencement conditions are not met. The team of construction lawyers in Ting Yun believes that the commencement date should be the date with the conditions for commencement. The analysis is as follows:
First, regarding the dispute between the parties to the contract about the actual commencement date of the construction project, Article 8 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Project Contract Disputes stipulates that the commencement date specified in the commencement notice shall prevail in principle. If the commencement conditions are not available when the commencement notice is issued, the commencement date shall be based on the time when the commencement conditions are available.
Second, in this case, the purpose of the notice of entry issued by the employer to the contractor is to require the western exploration company to enter the site as soon as possible, which is not the same as the notice of commencement, so the time when the notice of entry is issued should not prevail. 20 13, 12, 1, the contractor sent the project commencement report to the supervisor and submitted the commencement report. The supervisor replied on the same day that he agreed to start work. This fact can show that the supervisor agrees to start construction, so the court will take the time when the supervisor replies "agree to start construction" as the actual start date.
Summary of practical experience
Learning from the past, Ting Yun Construction Engineering Lawyers Team, based on studying thousands of Supreme Court judgment documents, combined with their own personal experience in handling a large number of construction cases, summarizes the practical experience of similar problems in this case as follows for readers' reference in practice:
First, in the construction project, the determination of the actual commencement date directly affects the calculation of the actual construction period, and then affects whether the contractor completes the project ahead of time or later. Generally, there is no dispute between the two parties on the commencement date agreed in the contract, and the main dispute is the actual commencement date. Judicial Interpretation of Construction Engineering (2004) does not stipulate how to determine the actual commencement date, but Judicial Interpretation of Construction Engineering (II) (20 18) does. In principle, the commencement date is the commencement date specified in the commencement notice issued by the employer or supervisor.
Second, Article 803 of the Civil Code stipulates that one reason for the contractor to postpone the construction period is that the employer has not provided the conditions for commencement. Therefore, even if the employer issues a commencement notice with a specified commencement date, if the commencement date specified in the commencement notice does not meet the commencement conditions, the commencement date specified in the commencement notice cannot be taken as the actual commencement date, and the commencement date should be taken as the time that meets the commencement conditions.
3. If the contractor fails to enter the construction site at the agreed time after the commencement notice is issued, which causes the delay of the construction period, the contractor shall not postpone the construction period except for the corresponding overtime expenses, and shall start counting from the time specified in the commencement notice.
Legal link
civil law
Article 803 Where the developer fails to provide raw materials, equipment, site, funds and technical data in accordance with the agreed time and requirements, the contractor may postpone the project date, and shall have the right to claim compensation for losses such as work stoppage and slowdown.
Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes (I) (Fa Shi [2020] No.25)
Article 8 If the parties have disputes over the commencement date of a construction project, the people's court shall determine it according to the following circumstances:
(a) Commencement date refers to the commencement date specified in the commencement notice issued by the employer or supervisor. After the commencement notice is issued, if the commencement conditions are not met, the commencement date shall be when the commencement conditions are met; If the commencement time is delayed due to the contractor, the commencement date shall be the time specified in the commencement notice.
(2) If the contractor has actually entered the site with the consent of the Employer, the commencement date shall be the actual entry time.
(3) If the employer or supervisor fails to issue a notice of commencement and there is no relevant evidence to prove the actual commencement date, the commencement date shall be determined by considering the time specified in the commencement report, contract, construction permit, completion acceptance report or completion acceptance record, and combining with the fact that the commencement conditions are available.
court decision
The Higher People's Court of Yunnan Province discussed the determination of the starting date of the "we think" part of the civil judgment in this case as follows:
We believe that Article 3 of the Construction Contract Agreement signed by both parties stipulates: "The total calendar days of the contract period is 1 17 days. The commencement date is tentatively set as 2065438+65438+ 10/in 2003, and the specific commencement date is subject to the written notice of the employer. " There is no dispute between the two parties about the construction period agreed in the contract, but there are disputes about the actual commencement date, the actual completion date and the liability for breach of contract.
First of all, regarding the actual commencement date of the project involved, our court believes that Article 5 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Project Contract Disputes (II) stipulates: "If the parties have disputes about the commencement date of the construction project, the people's court shall determine it according to the following circumstances: (1) The commencement date is the commencement date specified in the commencement notice issued by the employer or supervisor; After the commencement notice is issued, if the commencement conditions are not met, the commencement date shall be when the commencement conditions are met; If the commencement date is delayed due to the contractor, the commencement date shall be the time specified in the commencement notice. " In this case, on March 3rd, 20th13rd, Maohe Company sent a notice of entry to Westsurvey Company, requesting Westsurvey Company to enter the site as soon as possible after receiving the notice. The purpose of the notice of entry issued by Maohe Company is to ask the Western Exploration Company to enter the site as soon as possible. The notice of entry is not the same as the notice of commencement, and the time when the notice of entry is issued is not the actual commencement time of Western Exploration Company. Maohe Company's claim that the commencement date should be 20 13 10-03 is groundless. Since then, Xikan Company has issued a project commencement application form to the supervision company with the number of 20 13 12 1, and submitted the commencement report, and the supervision company replied "agreed to start construction" on the same day. It can be seen from the above facts that the Western Exploration Company issued a commencement application and commencement report to the supervisor after meeting the commencement conditions, and the supervisor agreed to start the project, so the actual commencement date should be the time when the supervision company replied "consent to start the project", that is, the actual commencement date of the project involved was 20 13 12 1. The court of first instance correctly identified the actual commencement date, and the actual commencement date advocated by Xikan Company was established, which was confirmed by our court.
Source of the case: the civil judgment of the second instance of the construction contract dispute between Yunnan Xikan Construction Engineering Corporation and Yunnan Maohe Real Estate Development Co., Ltd. | Yunnan Higher People's Court (2020) No.231
Extended reading
The team of Ting Yun Construction Engineering Lawyers retrieved the following representative cases on the relevant issues in this article, which are now shared for readers' reference:
Case 1
Yunnan Ronghua Construction Management Co., Ltd. and Kunming Lixue Feng Dan Household Goods Shopping Mall Construction Investment Co., Ltd. Civil Judgment of the Second Instance on the Dispute over the Construction Contract | Yunnan Higher People's Court (20 19) YunminzhongziNo. 1405.
(1) How to determine the commencement time of the project involved. According to our opinion, Article 5 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Project Contract Disputes (II) stipulates: "If the parties dispute the commencement date of a construction project, the people's court shall determine it according to the following circumstances: (1) The commencement date is the commencement date specified in the commencement notice issued by the employer or supervisor; After the commencement notice is issued, if the commencement conditions are not met, the commencement date shall be when the commencement conditions are met; If the commencement time is delayed due to the contractor, the commencement date shall be the time specified in the commencement notice. (2) If the contractor has actually entered the site with the consent of the Employer, the commencement date shall be the actual entry time. (3) If the employer or supervisor fails to issue a notice of commencement and there is no relevant evidence to prove the actual commencement date, the commencement date shall be determined by considering the time specified in the commencement report, contract, construction permit, completion acceptance report or completion acceptance record form and combining the facts of commencement conditions. " The construction contract of the construction project involved stipulates that the commencement date shall be subject to the written notice of the construction unit, but both parties in this case confirmed that Li Xue Company did not issue the commencement notice. On March 20th, 20 17, Ronghua Company sent the Reply on the Negotiation and Settlement Plan for the Construction Project of Kunming Lixue Business Plaza to Lixue Company, which stated that "our company (Ronghua Company) officially started construction on March 20th, 20165438". Judging from the construction log submitted by Ronghua Company in the first instance, it was 20.
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Jianyang city Hongdu Real Estate Development Co., Ltd. v. Construction Engineering Company of Longquanshan Irrigation District Management Office, Dujiangyan City, Sichuan Province. Sichuan Provincial Higher People's Court (20 19) Chuanminzhong No.325 was the second instance.
Whether there is a breach of contract in the first phase of the project, and whether the irrigation company compensates for the losses. Article 283 of the Contract Law of People's Republic of China (PRC) stipulates: "If the Employer fails to provide raw materials, equipment, site, funds and technical data according to the agreed time and requirements, the contractor may postpone the project date and have the right to claim compensation for losses such as work stoppage and slowdown." At the same time, according to Article 5 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes (II), the commencement date shall be determined in combination with the time specified in the commencement report, contract, construction permit, completion acceptance report and other documents. , and combined with the fact that the construction conditions have. According to the facts ascertained in this case, although the irrigation company entered the site for construction on May 25th, 20 14, Hongdu Company delivered the land for the first phase of the project to the irrigation company successively, and the latest batch of land was not delivered until May 8th, 20 14. The delay of land delivery will inevitably affect the actual start-up time, and then affect the construction period. Therefore, in the case that the construction conditions are not available due to Hongdu Company, the actual construction time of the first phase of the project should be when the construction conditions are available. The first phase of the project was completed on September 22, 2006+2065438, which did not exceed the 24-month construction period stipulated in the contract between the two parties. The court of first instance found that the irrigation company did not violate the time limit for a project contract and was not liable for compensation for losses, which was correct and was upheld by our hospital.
Lawyer Liu Chunhui, partner of Beijing Ting Yun Law Firm, Master of Civil and Commercial Law of China Renmin University, member of China Democratic League, arbitrator of Langfang Arbitration Commission and arbitrator of Beihai International Arbitration Court.
Lawyer Liu Chunhui has been engaged in legal research and work for more than ten years. He is a judge of a people's court in Beijing and has tried more than 1000 civil and commercial cases. He was the legal director of a real estate company in Beijing; Be responsible for handling the legal affairs of the company comprehensively. He used to be a partner of a well-known law firm, and has undertaken a large number of cases in construction engineering, finance and other types since his practice, and achieved good results.