Research On Solution To The Dispute Of Project Cost Settlement

Project cost is the most important part of construction contracts, the disputes about project cost are the key and sophisticated points during trying the construction contracts . In practice, disputes caused by project cost occupy a dominant position in construction contracts . Influenced by the complicated construction contract itself and the professional construction project cost issues, there emerged many new kinds of situations and questions."Different judgements on the same case"happen from time to time. This paper is determined to collect and research systematically on several common but very important legal questions which are concerned with construction project cost. This paper is based on the typical cases which are usually appearing in practice, deepening the understanding of relevant legal rules, discovering the roots of questions, putting forward the solutions of questions. This paper includes four parts: In the first part, it gives an introduction of construction project cost settlement.The author firstly defines the definition of construction project cost, illustrating three ways which fix the fixed price contract,adjusted price contract,cost-plus-fee, explaining three amounts : project advance payment,project progress payment,project settlement payment. The author refers to the relevant materials and summarizes the general principle fixing the project price---contract determine the cost principle,bid cost principle,total cost composition,unit cost composition,commission agreement composition. Second, the author defines the definition of settlement, discussing the foundation and way of project cost settlement, dividing the foundations of project cost settlement into general settlement basis and specific settlement basis. Between them, general settlement basis refers to the law documents about the project cost settlement. The specific settlement basis includes on-site inspection records,written contract or written agreement and other relevant technical data and contract document. Settlement methods are defined according to the contractor's agreement and its concrete content.In the second part, the author discusses the general principles and methods to deal with the project cost disputes. First of all, the author through the"interpretation"of the relevant provisions of the basic spirit and light of the actual ,proposed that handled the project cost settlement disputes should follow two basic principles: one is respect for the principles agreed by the parties, that if the parties have agreed on the revelant issues of the project cost settlement,we should follow the agreement ,and make sure the the purpose to follow the principle; the other is the court to finalize the principle that the courts ultimately determine whether the identified institutions to adopt the conclusions of some of the conclusions unreasonable adjustments, achieving procedural justice,protecting the right to appeal, conclusions can not be directly used for the trial. The author have also summarized the technical principles from the"Interim Measures"as a reference to fulfill the contract, includes according to the contract principle, time limits principle, procedures principle, accountability principle. Next, the author make a simple analysis of the legal consequences on the overdue settlement, and pointed out that to be clear that the judicial interpretation of construction contract in the contract responsibility, rather than additional responsibilities. I followed the discussion of the arrears of interest shall be paid engineering standards and the starting time, pointed out that the judicial interpretation of what "agreement" should be within a reasonable range, and a brief assessment of the judicial interpretation of the unpaid accrued interest on construction funds express provision for payment of the standard meaning. Again, the author discusses the question of identification of project cost. I refer to court issued the"Interim Provisions"definition of the concept of judicial appraisal, identification of the project price defined the concept works in practice clear identification of the price of selected departments and the expert way. I also pointed out that the clear identification of project cost basic principles to be followed is very important that the project appraisal price should follow three basic principles, including legal principles, evidence of principle, the principle of choice. Finally, the author lists and briefly analyze the engineering disputes settlement price of common legal issues, namely the quality of substandard construction or completed project cost settlement, the construction work after the change to the contract price settlement issue, the problem of clearing a fixed cost.In the third part, the author discusses the project cost settlement when the project contract is void. First, according to relevant law and judicial interpretation , it confirms the void situation of project contract, reaching a conclusion that we should judge a construction project contract's effect from its sign subject,its sign prerequisite,the origin of sign .It classifies the void project according to practice . The void project contract includes inappropriate subject,illegal inviting tenders,must tender without bidding,invalid bid and illegal subcontract or subcontract. It simply discusses the advanced payment explanation about the effect of its terms. Second ,it cognizes the void project contract's terms, citing the judicial interpretation's principle of management when the contract is void. Finally, it discusses how to settle the void project contract and the controversies existed in practice. It evaluates the disposal considerations on controversial problems.In the fourth part, the author discusses the priority claim of project cost issue.《Contract Law》286 specially stipulates the priority right to be repaid of project cost. The legislation of this rule is to settle the default of project cost. This question is the mostly discussed issue in practice while it is also the controversial issue. Therefore, this part mainly generalizes and summarizes the priority claim of project cost. Firstly, the author discusses the legal character of the priority claim of project cost. In practice, it forms three main theories, including immovable properties lien theory,legal priority theory,legal mortgage theory. This paper adopts the legal mortgage theory. Secondly, the author discusses the scope of application and the existing controversy of the priority right to be repaid of the project cost. It also confirms the time limit of the priority right to be repaid of the project cost. Then, it discusses the priority right to be repaid,acceptance and inspection of the project and quality accountability problems, distinguishing between the completed and handed over project and inspection and acceptance of the project, defining the general procedure of inspection and acceptance of project, emphasizing the importance of the project quality and the inspection and acceptance of project, elaborating the contractor whether has the priority right to be repaid in different situation. If the contractor has the priority, how can he enforcement the right. If the contractor doesn't has the priority, can the responsibility be imputed to the developer. The last part of this section, it discusses the priority claim and the protection of the consumer's rights and interests. Aiming at the emerging consumer's scope controversies, this paper integrates law,judicial interpretation and physical truth, defining the definition of consumer and its basic characters of law, giving some of the court's handling of controversial views. I also summarized several disposal opinions by the academic that how to deal with the contradiction between the priority claim and the legitimate rights and interests of consumers, pointed out that the essence of this problem is the contractor's management rights and the consumer's right to exist which is more important, proposed approach can be adopted to protect the legitimate interests of consumers.