Study On Trial Practice Of Construction Contract Price Settlement Dissension

With the advancement of construction activities and the output of engineering results,the contractors and contractors of construction projects have gradually entered the settlement process.From the formation of the project after the conclusion of the contract documents to provide a macro basis for settlement,and then to determine the quality of the project to determine the settlement of the premise,the processing of the contractor settlement submission,through the audit or third-party audit to complete the settlement price determination,this series of project price settlement process activities due to the lack of awareness of settlement rules between the two sides of the contract,the settlement of disputes around the formation of a large number of disputes in judicial practice.The lack of specific operational provisions in laws and judicial interpretations,the differences and contradictions in judicial documents at different levels and in different places,and the impact and conflicts brought about by the changes in the system and industry environment in the field of construction engineering have brought difficulties in trial practice to the settlement of disputes over project price settlement.By finding and analyzing typical dispute cases and comparing legal normative documents,the focus of disputes in trial practice is sorted out.The substantive content of the actual performance contract signed by the project after the bidding procedure is inconsistent with the substantive content of the winning contract.The court distinguishes between the necessary bidding and the non-essential bidding from the perspective of the recognition and limitation of the settlement basis,and makes different determinations based on the substantive content of the contract,the change of circumstances,the actual performance content and the legality of the bidding procedure.There is a lack of uniform applicability rules and referee basis.In the settlement of the contract-issuing party ’s unauthorized use of the unaccepted project,due to the lack of clear expression and interpretation of the judicial interpretation on the identification of " unauthorized " and the object of " claiming rights," the court has obvious differences in determining that the contract-issuing party constitutes " unauthorized use," and there is still controversy over the impact of "unauthorized use of unaccepted projects " on settlement.In addition to the judicial interpretations issued by the Supreme People ’s Court,some local courts have also stipulated in the relevant judicial documents the applicable conditions of the rule " subject to the price of submission for trial," but there are differences in the specific norms,and the operation is still not clear.In the process of judging whether the audit conclusion and settlement audit report can become the basis of project price settlement,the conflict between departmental rules and management documents and judicial interpretation,and the incompleteness of judicial interpretation may lead to wrong judicial decisions.The inconsistency between the actual performance contract of the non-essential bidding project and the substantive content of the winning contract leads to disputes over the basis of contract settlement.More attention should be paid to the nature and free value of settlement,and the actual performance contract should be used as the basis for settlement.If the actual performance contract of the bidding project is inconsistent with the substantive content of the winning contract,more attention should be paid to the value of order.In addition to the change of situation,the winning contract should be used as the basis for settlement.The settlement agreement that changes the project price is handled as an independent act,respecting the autonomy,finality and relative independence of such agreements.In the settlement of disputes over the unauthorized use of non-acceptance projects by the contract-issuing party,attention should be paid to the objectivity of the quality of the project.The distribution of rights and obligations to the parties to the contract based on the quality of the proposed project should be combined with the structure of the construction project,the use function,and the use of the contract-issuing party.It is necessary to make up for the space as much as possible and create the conditions for obtaining the legal procedures for the completion and acceptance of the legal procedures.Starting from the procedural conditions of the rule of " subject to the trial price," the application of the rule is evaluated by paying attention to the agreement of the parties,the preparation and recording of the trial data,the time limit for reply and the rationality of the objection.The audit conclusion and the settlement audit report as the basis for the settlement of the project price emphasize the autonomy of the parties to the project construction contract.Whether there is a clear agreement between the two parties as a basis for the settlement,and whether the meaning of the audit result document is true is the key to dealing with such settlement disputes.Starting from solving the operability of engineering price settlement disputes,pay attention to the nature of settlement and value balance concept to deal with the parties ’ engineering price settlement disputes.Establish a unified judicial concept,strengthen the unity of legal interpretation and application,improve the provisions of the judicial interpretation that have principle provisions but lack specific application conditions,especially increase the procedural conditions for the settlement parties to apply the corresponding rules.