A Research On Construction Of Inherent Defect Insurance Legal System In China

The potential defect insurance of construction engineering is originally derived from France,which is the insurance of the insurance subject to the loss of the building for various reasons.This article is divided into four parts.The first part mainly analyzes the basic theory of the potential defect insurance system of construction quality.The so-called construction engineering quality risk,also known as the risk of building engineering quality defects,and the potential defects(internal defects)of the construction engineering,refers to the failure of the design,the raw material or the poor construction process during the construction of the construction project,and the building defects that have not been found and repaired during the construction period.During construction,the risk of damage,such as leakage,cracks,tilting or collapsing,is caused.Corresponding to the three factors of risk,the three elements of construction engineering quality risk include the potential defects of construction engineering quality(risk factors),construction engineering quality damage events(risk accidents)and the loss(loss)caused by the quality damage of construction engineering.The potential defect insurance of construction engineering quality is used as an insurance object,as a guarantee of insurance.When the quality problem appears in the construction project,the consumer enjoys the creditor's right based on the warranty obligation of the quality defect of the developer,and the builder is paid to the buyer by the insurer instead of the developer and makes the builder.Finally,the interests of consumers are guaranteed in a timely and effective way.In order to better understand the insurance system for the potential defects of building engineering quality,this paper alsocompares it with the scope of property insurance(enterprise property insurance,family property insurance),product quality insurance,construction project quality warranty and residential special maintenance fund.There is no cross between the potential defect insurance and property insurance in the scope of insurance.It belongs to the complementary relationship.The security of the building is guaranteed in different scope,and the insured can insure the insurance at the same time.In addition to the scope of the insurance,all risks are no longer guaranteed after the completion of the project,and this is just the time when the potential defects of the construction project are insured.Therefore,the two kinds of insurance are not identical in time and scope,so they can be used together and insured at the same time.As a follow-up service provided by the contractor,the quality guarantee of the construction project is the maintenance and maintenance service provided by the contractor for the failure of the engineering quality in a certain period of time.From the legal point of view,the nature of the Contractor shall belong to the scope of the post contract obligation.In general,the liability for fault liability is applicable to the post contract liability.In other words,if the construction party fails to perform the warranty obligation without fault,he shall not be required to bear the post contract liability.The potential defect insurance of construction quality does not need to prove whether the responsible party has fault.If we meet the insurance coverage of the insurance,we can get the claim.The potential defect insurance of construction quality is a kind of quality damage insurance.Although the developer insure the insurance company at the initial stage of the project,the buyer of the house does not participate in the negotiation and signing process of the insurance contract,but the final beneficiary is still the buyer of each house.Considering that the developer is bound to transfer the cost of the premium to the buyer in accordance with the area purchased by the buyer,the potential defect insurance of the construction project should have the proprietary nature of the buyer,and the guarantee should be the main structure safety and the function use safety of the proprietary part of the buyer.All,In this way,the potential defects insurance of the construction quality and the residential special maintenance fund are separated.The second part mainly introduces and analyzes the related general situation of the legal system of foreign architectural engineering quality potential defects insurance,and how it works,and then summarizes the enlightenment and reference of the legal system of the potential defect insurance of foreign architectural engineering quality to our country.The third part mainly analyzes the practical needs of implementing the legal system of the potential defects insurance in our country,as well as the feasible basis for the implementation of the system,including the basis of the legal policy,the market foundation,the technical basis and the practical basis.In view of the needs of China's national conditions,it is necessary to establish a potential defect insurance system for construction quality in China.In this environment,on the basis of learning the successful experience of foreign mature construction engineering quality potential defect insurance model,the legal system of potential defects insurance for Construction Engineering in China is built on the basis of the own characteristics of China's architectural engineering and the different environment of our country.The fourth part is the foothold of this article.On the basis of drawing lessons from the mature experience of the legal system of foreign architectural engineering quality potential defects insurance and combining with the actual situation,we can express the construction of the legal system of the potential defects of the construction engineering quality from four aspects: insurance mode,insurance scope,insurance period and insurance rate.I hope to build up a legal system for the potential defects of construction quality in China.Based on the actual situation of our country,we should choose the mode of compulsory insurance in the insurance mode for the potential defect insurance of construction quality in China.Because as the first party's insurance,it is impossible for any third party liability insurance to protect the quality and safety of developers and households.In the scope of insurance,first of all,clear the scope of the guarantee of the construction quality insurance and the special maintenance fund of the house.For the common part of the house,the construction party should undertake the corresponding maintenance and compensation responsibility during the period of the warranty period.After the expiration of the warranty period,the quality guarantee is carried out by the special maintenance fund of the housing pension,which is supervised and applied to the fund through the owner's meeting.And the quality of the exclusive part of the safety of the construction party should first bear the responsibility for the maintenance of the liability period of the defect,during the period of the construction party is not able to undertake,the construction project quality insurance of the insurer for maintenance and compensation.Secondly,properly connect the potential defects of construction quality insurance and the quality assurance system of construction projects.Considering the concentration of quality defects in the first one or two years after the building iscompleted,such as cracks in concrete shrinkage,the scope of warranty liability can be expanded in the period of defect liability.But this expansion does not mean extending the scope of insurance.In the period of defect liability,whether or not it belongs to the scope of insurance contract,the Contractor shall first undertake the warranty liability for quality defects or even defects.During the period of quality assurance,the scope of warranty is consistent with the scope of insurance.Although the warranty is at the moment,the insurance company still enjoys the right of recourse and the contractor still has to bear the liability after the warranty.But at this stage,the quality risk can be transferred through the insurance of liability insurance.In the period of the insurance period,the insurance liability of the reasonable time span,the period of the standard defect liability and the warranty period of the quality guarantee period of the insurance period for the potential defects of the construction project in China,and the insurance period to distinguish the different parts of the construction project are clearly defined.In terms of the insurance premium rate,we should specify the lowest premium rate of the potential defects insurance of the construction quality in our country,and the differential premium rate and the floating rate should be applied.