The author of this article: Wang Wanbian of Sichuan Haojin Law Firm.
In the case of the employer's dissolution of the contract, the construction contract of the construction project is invalid, and the invalidity of the contract does not affect the exercise of the right of priority to be compensated for the price of the construction project, but the subject of the right is limited to the contractor who contracts the main project, and the contractor who contracts the non-main project does not enjoy the priority of the construction project price. The right of priority for compensation shall be exercised by the contractor and the employer at a discount for the project or request the court to auction the project in accordance with the law, and the period of exercise shall not exceed 18 months from the date on which the construction project price shall be paid. The details are as follows:
1.Definitions。"Dismemberment and awarding", also known as "dismemberment and contracting", refers to the act of dismembering a construction project that should be completed by one contractor into several parts and awarding the contract to several contractors, which is expressly prohibited by laws and regulations. "Construction projects that should be completed by a contractor", combined with the "Construction Engineering Classification Standards" (GB T50841-2013), "Unified Standards for Construction Quality Acceptance of Construction Projects" (GB 50300-2013) and other relevant provisions, refers to "a unit project", that is, a project with independent design documents, which can independently exert production capacity and use benefits, and is composed of sub-projects and sub-projects, which is the smallest unit that the construction unit can legally contract. "Main project" generally refers to foundation engineering and main structure engineering.
2.Validity of the contract。The employer's dissolution of the contract violates the mandatory provisions of laws and administrative regulations such as the Civil Code, the Construction Law, and the Regulations on the Quality Management of Construction Projects, which is contrary to the state's maintenance of the quality safety of construction projects and the order of the construction market, violates the public order and good customs of the state, and conforms to the invalidity of civil legal acts. In addition, the Judicial Interpretation of the Supreme People's Court on New Construction Contracts (1) Understanding and Application points out that illegal subcontracting actually includes two situations: one is that the employer dismemberes the contract, and the other is that the contractor illegally subcontracts, and the Supreme People's Court includes the dismemberment of the contract as illegal subcontracting, then the dismemberment of the contract shall be deemed invalid in accordance with the provisions of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases of Disputes over Construction Contracts (I).
3.The subject of the right of priority to be compensated。If the construction contract of a construction project is invalid, but the experience is qualified, the contractor may be compensated at a discount as agreed in the contract, that is, the contractor does not need to be conditional on the validity of the construction contract for exercising the right of priority to be compensated. However, according to the relevant content of the Supreme People's Court's Understanding and Application of the Civil Code of Contracts (III), in the case of dissolution of the contract, not only the employer is at fault, but also the contractor is at fault. If each contractor enjoys the priority right to be compensated for the price of the construction project, it will cause great damage to the construction, utilization and transaction safety of the project, especially the contractor who contracts a non-main project, which may exercise the priority right of payment of the construction project price for all the construction projects because of the price of a small part of the sub-project, which will have a great impact on the construction order and the transaction order. Therefore, the right holder of the priority right to be compensated for the price of the construction project should be limited to the contractor who contracts the main project.
4.Conditions of Exercise. The contractor's exercise of the right of priority is premised on the quality of the construction project being qualified, and the following conditions need to be met: first, the employer fails to pay the construction project price in accordance with the construction contract;Second, the employer fails to pay the price of the construction project within a reasonable period of time after being urged by the contractor;Third, according to the nature of construction projects, they should be discounted and auctionedFourth, the contractor and the employer agree to discount the price of the project, or request the people's court to auction the project in accordance with the law. The time limit for the contractor to exercise the right of priority to be compensated for the price of the construction project shall not exceed 18 months, and shall be calculated from the date on which the employer shall pay the price of the construction project.