On Incomplete Payment And Warranty For Defects Of Construction Projects

In the traditional theory of non-performance of debt,there are significant differences in the constituent elements between non-performance,delay and defective guarantee.Subsequently,incomplete payment,as a new independent breach of contract,has been recognized as the third type of payment obstacle system by German doctrine and jurisprudence.When the subject matter of payment is defective,how to coordinate the application relationship between incomplete payment and defective guarantee liability,as well as the choice of application,has become the focus of controversy.At the same time,it also causes instability and complexity in the application of law.Therefore,continental law countries continue to reform and improve the liability system of defective guarantee,and strive to eliminate the gap between the two.In 2002,German debt law reform incorporated the liability of defective guarantee into the general liability system for breach of contract.As a special form of contract,construction contract of construction project is stipulated in the Contract Law of our country.Article 281 of the Contract Law stipulates: "If the quality of a construction project does not conform to the agreement due to the reasons of the builder,the contractor has the right to require the builder to repair or rework or rebuild it gratuitously within a reasonable period of time.If the overdue delivery is caused by repairs or rework or reconstruction,the Builder shall bear the liability for breach of contract." Contractor’s liability for defects in construction projects stipulated in the law should be defined as the liability for non-performance or guarantee of defects of debts not fully paid by the contractor,which has always been one of the major controversial issues in our theory and practice.Moreover,the provisions of Article 281 of the Contract Law on the contractor’s liability for defects in construction projects are very rude,either in terms of the constituent elements or the way of liability assuming.The rudeness of the legal provisions and the theoretical interpretation lead to different judgments of relevant cases by judicial organs.By analyzing the provisions of the liability for defects of construction projects under the theory of incomplete payment and the liability system of guarantee for defects,this paper probes into the evolution of the application of the liability system for incomplete payment and guarantee for defects before and after the reform of German debt law,and studies the ways of remedy for the rights of contractors in construction contracts of construction projects in China.Combining with the current situation of contract law legislation,the aim is to improve the application of the legal provisions on contractor’s liability for defects in construction contracts.