In the fixed-price construction contract, the contract stipulates that "if the subcontractor cuts corners in the construction, uses substandard building materials, building accessories and equipment, or has other behaviors that do not follow the engineering design drawings or construction technical standards, it shall be ordered to make corrections and be punished with liquidated damages of 20% of the total cost of part of the project, and not less than 100,000 yuan; If the quality of the construction project does not meet the specified quality standards, it shall be responsible for rework and repair, and compensate for the losses caused thereby. "At the time of settlement, the on-site survey record is only signed and sealed by Party A and the supervisor, and the construction unit is not signed and sealed, is this survey form effective?
Keywords: site survey, single evidence
The liability for breach of contract set by this issue on the subcontractor in the contract is very strict, and the liability for liquidated damages of "20% of the total cost of some projects, and not less than 100,000 yuan" is relatively high for the subcontractor's failure to construct according to the drawings and shoddy behavior. For example, in another case encountered by the author, the employer terminated the contract due to the untimely supply of materials by the material supplier, and the material supplier disposed of the material according to the contract and the unit liable for liquidated damages of 20% of the total contract amount. In ordinary commercial contracts, if the liquidated damages are set at 20% or 25% of the total contract amount, they are basically liquidated damages in the case of fundamental breach. At the same time, this contract also sets a lower limit on liquidated damages, which is also very rare.
The on-site survey record is only signed and sealed by Party A and the supervisor, and the construction unit is not signed and sealed" This is not a question of whether the survey record is valid. When we understand a field document, we should understand it as evidence, and in terms of evidence, only the probative strength is weak. In the first case, if the construction unit signs and seals the survey record, it is equivalent to admitting that there is a problem with the quality of the project, and it needs to bear the liability for breach of contract, and the auditor can deduct the relevant expenses. However, the author believes that it is best for the auditor to send a letter from the employer to explain the deduction when making the deduction. As for whether the agreement of 20% liquidated damages is too high, it is not within the scope of the auditors. In the second case, if the construction unit does not sign and seal the survey record, we must understand the single evidence from several aspects. Article 87 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulates that: "Adjudicators may review and determine a single piece of evidence from the following aspects: (1) whether the evidence is the original or original, and whether the copy or reproduction is consistent with the original or the original; (2) Whether the evidence is relevant to the facts of the case; (3) The form of the evidence and whether it complies with legal provisions; (4) Whether the content of the evidence is true; (5) Whether the witness or person providing evidence has an interest in the party. ”
Back to this case, only the signatures of Party A and the supervisor are in the on-site survey records, and this evidence can be treated as documentary evidence. Although the documentary evidence unilaterally produced by Party A is relatively weak, as an independent third party, the superintendent's signature also has a certain probative force, but the probative force may not be able to meet the standard of proof with a high degree of probability. The so-called high probability means that the probability can make the judge form an inner confirmation, and the quantified probability is to be able to meet the standard of proof of 76%.
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