| Construction contract disputes involve a wide range of subjects,complicated legal relations,strong professional and technical skills,hot spots in judicial practice,accumulation and superposition of difficult issues,resulting in judges often at a loss in determining facts and applying law,etc.There is often a phenomenon of "different judgments in the same case".The interpretation of the Supreme people's Court on the legal issues applicable to the trial of disputes over Construction contracts(hereinafter referred to as "Judicial interpretation of Construction projects"),which came into effect on January 1,2005(>)although to a certain extent unifying the yardstick of judicial decisions in such cases,However,it has been more than ten years since it was formulated.New situations and new problems have emerged in the trial practice.Not poor,to the specific case referee brings a lot of confusion.In this paper,the current legal system of construction contract in China,the related theoretical research results are combed,and the shortcomings of the current legal system are analyzed.Then,the author summarizes the judicial practice of the construction contract disputes in Jiangxi Province since 2013,and finds out the five difficulties existing in the judicial practice of this kind of disputes,that is,the identification of facts is difficult,the application of the law is difficult,and the remedy of litigation is difficult.It is difficult to resolve the contradiction,difficult to realize the judgment,and five outstanding problems existing in the application of the specific law,including the review of the main body of the lawsuit,the determination of the validity of the contract,the bearing of the liability for breach of contract,the settlement of the project price and the excellent price.The problem of getting paid first.On this basis,the author combines the existing relevant research results,and puts forward some suggestions: on the one hand,on the whole,we should optimize the principles of judicial adjudication of construction contract disputes,and establish a more legal contract protection.Pay more attention to the balance of interests of all parties,pay more attention to the protection of people's rights and interests of the judicial concept.On the other hand,on the case balance,we should unify the judicial rules of construction contract dispute cases.In the aspect of the qualification of litigation subject,the scope of actual constructor should be limited to the case of invalidconstruction contract,and the main body of raw material,capital and labor should be directly invested in the construction process of the project.For cooperation The contractor has no right to claim joint liability if the developer is not involved in signing the construction contract in the development of real estate.The validity of the contract should be judged comprehensively on the principle of harming the interests of other parties.For the internal contract,whether the parties have the relationship between management and management,and whether to support the project in terms of funds,technology,equipment,manpower,etc.At the same time,it is proposed that the scope of labor subcontracting in the field of construction contracts should be adjusted to 11 categories on the basis of the Standard of Construction Enterprise qualification Grade issued by the former Ministry of Construction.For failure to obtain "four certificates" The construction contract shall be treated differently according to the nature and severity of the different illegal acts.With regard to the determination of the liability for breach of contract,we should adhere to the principle that there is an agreement from agreement and no agreement from the statutory principle,and define the party's liability for breach of contract fairly and reasonably,including determining the liability for the delay in the construction period step by step,The principle of presumption of fault is applied to define the liability of engineering quality defects,and the principle that overdue liquidated damages and interest can be used.In the settlement of the project price,the contractor's failure to review the settlement documents within the time limit cannot be regarded as the default of the contractor.The settlement of invalid contract should be limited to the price of the project itself,and not include the clause of liability for breach of contract,quality A margin,etc.For the contract agreement,the fixed total price,the actual construction price change in principle does not apply to the situation change.At the same time,we should insist on strict audit,clarify the applicable situation of engineering cost appraisal procedure,avoid unnecessary multiple and repeated appraisals.On the question of the priority of the construction project price,the author thinks that the nature of the compensation right is the legal priority,and from the basic spirit of protecting the people's livelihood,analyzes and discusses the main body and the time of establishment of the construction project price priority compensation right.In order to realize the legislative intention and purpose of this system,the scope and mode of exercise should be treated in different situations. |
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